Higher Regional Court of Frankfurt am Main, judgement v. 29.11.2023 (6 U 082/23)

The #Oberlandesgericht Frankfurt am Main had to decide in the context of interim injunction proceedings whether it was #anti-competitive to grant a #discount of 20 % on the fee rates of the #GOÄ. The court’s answer: Not in this specific case.

The defendant in the present proceedings is an #online platform that mediates medical treatment services. The defendant itself does not provide any medical services, but has #cooperating doctors who carry out the actual #treatment. The online platform is a #corporation. It advertised that patients would receive a 20% discount on the cost of #treatment. The services were then provided by the cooperating doctors. The cooperating doctors billed regularly according to the GOÄ. The company deducted a 20% discount from the invoices of the cooperating doctors and passed this discount on to the patients.

The applicant (a competition association) considered this to be an anticompetitive breach of the GOÄ. After the warning was issued, the application for a preliminary injunction was granted in the first instance. The Higher Regional Court of Frankfurt am Main cancelled the preliminary injunction on appeal and rejected the application.

There was no anticompetitive behaviour. As a corporation, the defendant was not bound by the GOÄ as it did not provide any medical services itself.

The purpose of the provisions of the GOÄ is to regulate the invoicing behaviour of doctors in the interests of patients and to counteract ruinous price competition between doctors in the interests of a functioning healthcare system. The fact that discounted fees are still within the fee framework of the GOÄ is irrelevant.

The only decisive factor is that the GOÄ binds doctors to the respective individual case and to the personal consultation with the patient both in the assessment of their statutory fee and in the fee agreement and thus excludes any flatrate calculation of medical remuneration before contact is made with the patient.

This rules out any calculation of fees based on purely economic marketing considerations, irrespective of the treatment process and patient contact. Whether the competition resulting from the discount is not ruinous is also not relevant. The purpose of the GOÄ is not to prevent price competition only when it becomes ruinous, but to prevent it from arising in the first place by regulating the billing behaviour of doctors.

However, the infringement of competition fails in the present case because of the defendant’s status. The addressees of the GOÄ are exclusively doctors as contractual partners of the patients from the treatment contract. Therefore, companies such as a Ärzte-GmbH can freely agree prices if they conclude the treatment contract with the patient and provide the treatment service owed by an employed doctor or a fee-based doctor who is not paid by the patient but by the company (OLG Frankfurt am Main, decision of 21 September 2023, 6 W 69/23).