The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for competition law, had to decide on the admissibility of a cooperation between an ophthalmologist from the Hanover region and an optician from the Düsseldorf area. The defendant ophthalmologist offers patients to choose a frame from about 60 sample spectacle frames of the optician in his practice. The defendant then transmits his measurement results and the prescription to the optician, who delivers the finished spectacles either directly to the patient or, at the patient's request, to the defendant's practice. There the fit of the glasses is checked and corrected if necessary. The defendant stated that he only offered the glasses service in exceptional cases to elderly patients, patients with walking difficulties or patients suffering from certain illnesses or who had had bad experiences with local opticians.
According to the plaintiff, the Zentrale zur Bekämpfung unlauteren Wettbewerbs (Central Office for Combating Unfair Competition), the defendant violated § 3 para. 2 and § 34 para. 5 of the German Medical Professional Code (BOÄ) with this conduct. The Regional Court of Hanover had upheld the action for an injunction. The Higher Regional Court of Celle had dismissed it. The plaintiff's appeal was partially successful and led to the case being referred back to the Court of Appeal.
§ Sections 3(2) and 34(5) BOÄ are market conduct regulations, the violation of which can also give rise to claims for injunctive relief under competition law. However, the plaintiff cannot generally prohibit the defendant from referring patients to a certain optician or from fitting and dispensing spectacles made by the latter in his practice. This is because § 34 para. 5 BOÄ allows referral if there is sufficient (not necessarily medical) reason for it. According to section 3 sub-section 2 BOÄ, the fitting and dispensing of spectacles by an ophthalmologist is permissible if it is a necessary part of the medical therapy.
The Court of Appeal had assumed that there was sufficient reason to refer a patient to a distant optician because opticians can determine the visual acuity themselves and the glasses then made can deviate from the prescription. According to this view, ophthalmologists could refer patients to certain opticians without restriction. The BGH did not follow this. The ophthalmologist can prevent in another way that the optician manufactures lenses that deviate in strength from the doctor's prescription. If one follows the Higher Regional Court, the prohibition of referral is no longer of any significance because the possibility that the optician produces lenses that deviate from the prescription can never be ruled out.
The plaintiff argued that the statements of his patients submitted by the defendant already did not show sufficient reasons for a referral to a certain optician. According to this, most patients merely find it more convenient to receive all services "from one source". Insofar as individual patients refer to bad experiences with a local optician, it is not clear why the services of other local opticians could not be used.
On the basis of the findings of the Court of Appeal, the BGH could also not assume that the defendant only dispensed and fitted spectacles if this was a necessary part of his medical therapy within the meaning of § 3 (2) BOÄ. In this respect, too, the plaintiff could refer to the patient certificates submitted by the defendant, from which it could be inferred that individual patients wanted to receive all services from one source for convenience. This does not make the fitting and dispensing of glasses part of medical therapy.
As the Court of Appeal has not yet made any findings on this party submission, the matter was referred back to the Court of Appeal.
§ 3 Para. 2 BOÄ of the Medical Association of Lower Saxony:
The doctor is prohibited from dispensing goods and other objects in connection with the exercise of his medical activity or having them dispensed with his assistance, as well as from rendering commercial services or having them rendered, unless the dispensing of the product or the service is a necessary part of the medical therapy due to its special features.
§ 34 Para. 5 BOÄ of the Medical Association of Lower Saxony:
The doctor is not allowed to refer patients to certain pharmacies, shops or health care providers without sufficient reason.
Judgment of the BGH of 9 July 2009 - I ZR 13/07 - Provision of spectacles
Lower courts:
OLG Celle - Judgment of 21 December 2006 - 13 U 118/06 (WRP 2007, 198)
LG Hannover - Judgment of 16 May 2006 - 26 O 130/05 (WRP 2007, 107)
Source: BGH press release of 9 July 2009
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information law (IT law)
E-mail: info@goldberg.de
