Medical services at fixed prices?

Is a dentist permitted to offer his services to the public at a fixed price, or does this constitute an anti-competitive violation of the pricing regulations under the Fee Schedule for Dentists?

The professional association representing dentists in Hesse took action against a dentist for cessation of conduct because the latter had offered cosmetic tooth cleaning at a fixed price of EUR 29.90 and cosmetic bleaching at an individual price of EUR 149.90 via an internet portal.

The internet portal offers its customers so-called "deals", i.e. vouchers at fixed prices for purchase, which can be redeemed at various providers, for example for restaurant visits, travel, leisure activities or wellness services. These "deals" are time-limited, which is indicated to the public via a countdown timer running backwards. In addition, the number of vouchers already sold is also displayed to interested parties.

The professional association considered these offers to be violations of competition law, as the reduced fixed prices offered fell significantly below the price range stipulated by the Fee Schedule.

This legal view was now confirmed in the second instance by the Higher Regional Court (OLG) Frankfurt a.M.

Court decision

By judgment of the OLG Frankfurt a.M. of 21.07.2016 – Az. 6 U 136/15 – the dentist was prohibited from advertising his services at fixed prices.

The Higher Regional Court ruled that the offer of tooth cleaning and bleaching services by a dentist at a reduced fixed price violated the pricing regulations of the Fee Schedule for Dentists.

The Fee Schedule serves to create transparency in the billing of dental services and to establish appropriate and performance-related remuneration. The provision thus pursues the purpose of regulating the billing conduct of dentists in the interest of patients. The Fee Schedule therefore constitutes market conduct rules, so that a violation is at the same time unfair and gives rise to cessation of conduct claims.

Conclusion

Medical services must not be offered at fixed prices which fall below the price ranges stipulated in the respective Fee Schedules. Violations thereof are anti-competitive and give rise, inter alia, to cessation of conduct claims from competitors.