Federal Court of Justice, 01.12.2010, Ref.: I ZR 55/08
Dental self-administration is organised by the German Dental Association and the dental associations of the federal states. The Federal Dental Association is the association of the dental associations of the federal states.
In order to regulate self-administration in a legally binding manner, the German Dental Association drafts so-called model professional regulations at regular intervals, which are then translated into legally binding professional regulations at regional level in the respective chamber districts.
The local professional regulations are statutes of the respective dental associations. The legal basis for the enactment of these statutes can be found in the medical profession and chamber laws of the federal states. In particular, the provisions of these professional regulations that are relevant to competition law are repeatedly the subject of legal disputes.
The professional code of conduct for Bavarian dentists, for example, stipulates in Section 8 (2) that it is unprofessional for dentists who are members of the chamber to oust a colleague from their treatment activities or as a competitor for a professional activity through unfair behaviour.
§ Section 21 (2) of the Professional Code for Bavarian Dentists stipulates that dentists are only permitted to provide factual information about their professional activities and that advertising contrary to the profession is prohibited. Advertising that is contrary to the profession includes, in particular, promotional, misleading, disparaging or comparative advertising. The dentist may neither initiate nor tolerate unprofessional advertising by third parties and must counteract this.
In the above-mentioned judgement, the Federal Court of Justice had to decide whether the operation of an internet portal on which patients can "auction" their dentist's treatment and cost plan is anti-competitive within the meaning of the Professional Code for Bavarian Dentists and the Act against Unfair Competition.
FactsOn the defendant's internet platform, patients can post treatment and cost plans from their dentists, for which other dentists can then provide alternative cost estimates. The patient is informed of the five cheapest cost estimates without providing the names and addresses of the dentists. If the patient then decides in favour of one of the cost estimates, the defendant sends the respective contact details to both parties.
The plaintiffs (Bavarian dentists) are of the opinion that the defendant induces the dentists participating in its business model to violate provisions of the professional code of conduct for Bavarian dentists and thus also to engage in anti-competitive behaviour. The Regional Court Munich I and the Higher Regional Court Munich upheld the action for injunctive relief brought against the defendant.
Federal Court of JusticeThe BGH did not agree with the plaintiffs' view. It was not objectionable if a dentist, at the patient's request, undertook an alternative cost calculation and possibly treatment. The behaviour of those dentists who take on the cost assessment could not be seen as being contrary to the principle of collegiality and therefore unworthy of the profession by ousting other dentists from their treatment activities.
Insofar as the dentists pay the defendant a fee for each patient referred via the platform with whom a treatment contract is concluded, they also do not violate the provision of the professional code of conduct which prohibits them from granting a fee for the referral of patients. The defendant's service does not consist in the referral of patients, but in the operation of its internet platform, through which patients and dentists come into contact with each other.
Source: Federal Court of Justice
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