Distributing FFP2 masks free of charge in breach of competition law
Groups deemed to be at risk can redeem vouchers for FFP2 masks. Pharmacies that waive the two-euro personal contribution are violating competition law according to a ruling of the Landgericht (LG) Düsseldorf – the Regional Court of Düsseldorf.
In order to protect those at particular risk against being infected with the coronavirus, the German parliament has adopted legislation (Coronavirus-Schutzmasken-Verordnung, SchutzmV) that provides for and regulates the distribution of FFP2 masks by pharmacies to the most vulnerable people. The country’s health insurance funds have sent vouchers for FFP2 masks to their insured members, which the latter can redeem in pharmacies. In return for a personal contribution of two euros they receive six masks.
Some pharmacies have advertised that they are waiving payment of the personal contribution and offering the FFP2 masks to those at risk completely free of charge. They need to tread carefully. We at the commercial law firm MTR Rechtsanwälte note that waiving the personal contribution, as well as similar discount initiatives, may amount to a breach of competition law.
That was certainly the verdict of the LG Düsseldorf in an expedited hearing from January 15, 2021, which resulted in one such discount initiative being banned (Az.: 34 O 4/21). The lawsuit was filed by a competition association against a pharmacy holding company that was promoting its affiliated pharmacies with reference to waiving the personal contribution.
In its reasoning, the LG Düsseldorf held that the provisions of the SchutzmV concerned with the personal contribution ought to be viewed as a regulation governing market behavior, and that failure to comply with this regulation thus amounts to an anticompetitive infringement.
The court went on to state that the purpose of the legislation is to ensure that FFP2 masks are distributed in a consistent and appropriate manner in order to protect particularly vulnerable groups of people against being infected with the coronavirus, noting that this is the reason why the masks ought to be used sensibly and not wastefully. The FFP2 masks were said by the court to be intended for those who really need them and who are prepared to pay the personal contribution of two euros.
While the ruling is not yet final, it has already sent an important signal. Violations of competition law may be met with severe penalties. Heavy fines are a real possibility.
Lawyers with experience in the field of antitrust and competition law can serve as advisors.