A Decision of an Association of Undertakings: Reflections on a Recent Irish Supreme Court Decision, Hemat v Medical Council

A decision of an association of undertakings to, for example, fix prices or allocate market shares, is likely to prevent, restrict or distort competition and so breach competition law. But what if the association is the Medical Council where only a majority of the members are undertakings and the decision is to discipline a medical practioner, Dr. Hemat, for advertising contrary to its then Guide on Ethical Conduct and Behaviour? This was the issue in the Irish Supreme Court's Hemat v The Medical Council judgment delivered in 29 April 2010. Applying European Court of Justice case law - Pavel Pavlov and Wouters - the Supreme Court concludes that "the Council cannot be considered an association of undertakings." The European Court has adopted a two step methodology in determining whether an association of undertakings is subject to competition law: Are the members of the association/body undertakings? What is the nature of the decision of the association of undertakings? This paper argues that the approach of the Supreme Court in providing an answer to the first question is complicated, cumbersome and not altogether convincing methodology for determining whether or not a body should be considered an association of undertakings when not all of the members of the body are undertakings, while in answering the question the Supreme Court fails to adequately to draw the distinction between being engaged in economic activity and the sphere of economic activity.