The subject of the proceedings were non-binding price recommendations which the pharmaceutical companies passed on to wholesalers and sales outlets via a database operator. The Competition Commission saw this procedure as an illegal competition agreement (Art. 5 para. 1 and Art. 5 para. 4 KG). While the Federal Administrative Court had not yet found any market conduct relevant under competition law, the Federal Supreme Court now endorsed the WEKO’s view in its leading judgement. The Federal Supreme Court argued that the non-binding character of the price recommendation did not exclude an inadmissible agreement to compete. Nor is it decisive whether manufacturers attempt to coordinate compliance with the price recommendations or to exert pressure. In particular, the degree of compliance of the suppliers that is achieved with the price recommendation must be taken into account. According to the Federal Supreme Court, a degree of compliance of 50% is sufficient to affirm a coordination success and thus an inadmissible market conduct within the meaning of the Cartel Act.
According to this ruling, price recommendations to which a part of a manufacturer’s sales outlets adhere can be unlawful even without any particular pressure being exerted by the manufacturers. This strict practice means an increased risk for companies that supply various retailers of having to expose themselves to the possibly high fines of the Competition Commission.