The National Commission for the Defence of Competition (CNDC, for its acronym in Spanish) recommended to the Secretariat of Industry and Commerce (SIyC) the imposition of punitive measures, including a fine, on the Asociación Austral de Anestesia, Analgesia y Reanimación, as a result of the findings of an investigation carried out by the National Directorate of Anticompetitive Conducts, which detected the commission of an abuse of a dominant position of an exclusionary nature on the part of the association.
The proceedings were initiated on 31 August 2017, as a result of a complaint filed by the Obra Social de los Empleados de Comercio y Actividades Civiles (OSECAC) Medical Insurance of Trade and Civilian Activities Employees against the Asociación Austral de Anestesia, Analgesia y Reanimación, an organisation the brings together more than 90% of the anaesthesiologists in the province of Chubut. The association negotiates contracts with different health fund administrators, acting as an intermediary between these administrators and the doctors who are members of the association, for the collection of professional fees.
Within the framework of the investigation, the CNDC was able to prove that the denounced association imposed a clause with exclusionary effects in its Statute of November 5, 2009, which was later replaced by another of similar tenor on September 4, 2021, committing an abuse of a dominant position that continues to the present, which is detrimental to the general economic interest.
The CNDC found that these clauses impose a restrictive condition, aimed at preventing health fund managers from contracting with anaesthesia professionals independently from the Asociación Austral de Anestesia, Analgesia y Reanimación, or through other associative entities that may arise.
On 8th May 2024, the CNDC issued an opinion recommending the following measures:
i) to impose on the association a fine equivalent to 144,919 mobile units, which at the value of the mobile unit for the year 2024, is equivalent to 73.356.548.6 million Argentinean pesos;
ii) to order the Asociación Austral de Anestesia, Analgesia y Reanimación to immediately cease the anticompetitive conduct, by eliminating Section 15, paragraph c) of its bylaws, consisting of the following text: ‘(...) the agreements entered into by members with the intervention of a proxy to that effect, with social security, pre-payment and/or any entity related to their professional services must be duly notified to the Association's Board of Directors, so that it may take note of what has been agreed, in order to adopt the necessary, timely and/or appropriate measures in its capacity as the billing and collection entity’; and;
iii) to order the said association to refrain from requiring its members to inform it of any agreements they may have with health administrators with which it does not have any agreements in force.
On 4th November 2024, the Secretary of Industry and Commerce adopted these recommendations and ordered their implementation through Resolution 407.