According to the Competition Authority ruling, the forms of restrictive conduct alleged by the reporting entity included:

• (i) Installation by the manufacturing firms in their medical devices of protection software of access codes/passwords or keys (“service keys”) with simultaneous refusal to grant access to the systems necessary to carry out maintenance, including access to management software and service manuals, and refusal to provide the passwords for the protection software service keys with simultaneous refusal to grant access to the systems necessary to carry out maintenance;


• (ii) Refusal to provide original replacement parts, including by non-response or delayed response to the reporting entity’s requests for quotations, and/or delays in delivery (so called constructive refusal); and


• (iii) Denigratory actions in order to discredit work and instill the belief that only the manufacturers of the devices are able to provide the maintenance services.

The reporting entity also claimed to receive either a flat refusal or silence from the manufacturers who were approached for access to diagnostic tools, up-to-date technical documentation or service manuals, service software and access to passwords and replacement parts in order to perform the maintenance service in the event a contract was awarded.

The Ruling further provides that the "conduct forming the subject of the proceedings falls within a context where each manufacturer holds a substantial position of dominance over the maintenance of the devices of its own brand." According to the Competition Authority ruling, "the evidence in the case file reportedly demonstrates that the manufacturers were taking advantage of positions of strength and have adopted a series of initiatives for introducing artificial technology and/or economic constraints on the availability and use of the items necessary to compete effectively in the provision of maintenance service on their equipment".

We await the outcome of the investigation.

About the author: Robert J. Kerwin is general counsel for IAMERS, the International Association of Medical Equipment Remarketers and Servicers.

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