Anti-Competitive Advertising in Germany Featuring Flat Rate for Tooth Cleaning and Bleaching
According to a ruling of the Oberlandesgericht (OLG) Frankfurt [Higher Regional Court of Frankfurt] from July 21, 2016, dentists offering tooth cleaning or bleaching services at a fixed flat rate are violating competition law (Az.: 6 U 136/15).
In the instant case, the OLG Frankfurt held that offering tooth cleaning and bleaching services at a flat rate price violates both the provisions of the fee schedule for German dentists and competition law.
The legal dispute arose in relation to an offer made by a dentist on an online portal for tooth cleaning and bleaching services at a fixed flat rate. Consumers could acquire the relevant coupons through so-called “deals”. A legal suit for an injunction against this offer was brought by the professional association for dentists in Hesse. It argued that the dentist in question had improperly offered dental services at a discounted fixed price which fell considerably short of the framework established in the fee schedule, stating that this was anti-competitive.
The OLG Frankfurt agreed with this view. The Court ruled that the fee schedule for dentists represents a mandatory set of pricing rules for all dentists. It went on to say that the fee schedule is supposed to ensure transparency when it comes to billing for dental services and should be considered a market behaviour rule in terms of Germany’s Gesetzes gegen den unlauteren Wettbewerb (UWG) [Unfair Competition Act] and thus any violation of this should be deemed anti-competitive.
The Court reasoned that if these fixed prices were permissible, there would be a risk of patients with a limited treatment requirement “cross-subsidizing” patients in need of substantially more intensive treatment. The OLG also noted that there would be a risk of the treatment being shortened beyond reasonable limits because of the fixed price. It stated that while a flat rate can be agreed in individual cases, this can only be arranged following a preliminary examination of the patient and the creation of a treatment and cost plan.
Doctors and dentists are, like many other professional groups, in competition with one another. [Some lawyers] note that it is therefore understandable why they would wish to draw in patients with special offers or services. Notwithstanding this, they must observe the rules of competition law in doing so, since violations can give rise to severe penalties. Lawyers who are versed in the field of competition law can advise accordingly.
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