Brussels, 04/03/2013 (Agence Europe) - On 28 February 2013, the European Court of Justice ruled that a profession cannot force its members to accept a type of professional training that partially eliminates competition and discriminates against competitors. The fact that the body is legally required to introduce compulsory training for its members does not mean that it does not have to abide by EU competition rules.
The Court of Justice was answering a query from a Portuguese court about how EU competition rules meshed with a rule introduced by the Portuguese accountants' association (OTOC) requiring members to have acquired 35 training credits over the past two years comprising: - institutional training (changes to legislation, ethics and good practice) of at least 16 hours in length from OTOC followed by 12 institutional training credits a year; - professional training of at least 16 hours from OTOC or bodies registered with OTOC, it is OTOC itself that rules on the registration of such bodies and their training work, for which OTOC charges a fee. The Portuguese competition authority says the ruling amounts to a distortion of competition on the market for compulsory training for accountants, which has been artificially fragmented by 12 of the 35 credits being kept for OTOC and discriminatory conditions applying the remainder of the market to the detriment of competitors. OTOC appealed against the decision.
In its ruling, the Court of Justice says that this type of regulation by a professional body like OTOC must be seen as decisions taken by an association of companies in the meaning of European Union competition law; - the fact that OTOC is legally required to introduce compulsory training for its members does not exempt it from European competition law because the training rules do not apply to accountants alone; - the fact that these standards have no direct influence on OTOC's members' business means that competition rules apply in full when rules affect a market in which OTOC itself does business; a rule of this nature on the compulsory training of accountants, introduced by a professional body to ensure high-quality accountancy services, restricts competition if it removes competition from a substantial section of the market for the benefit of the professional body and sets discriminatory conditions for the remainder of the market to the detriment of OTOC's competitors.
The Portuguese court is told to check whether this applies in this case by analysing the structure of the market to verify whether the fragmentation is justified (two different types of training, the duration of them and the bodies allowed to issue the training). It must also see whether the fact that accountants must obtain at least 12 annual training credits (a similar requirement is not laid down for professional training) is likely to provide a competitive advantage to training provided by OTOC and whether the conditions for other bodies to provide the training ensure equal opportunities for other economic operators. In this connection, the Court of Justice says that the professional training provided by OTOC is not subject to an authorisation procedure, unlike that dispensed by other training bodies, for which precise criteria are set out in the rules set by OTOC, making OTOC judge and jury. It has the power unilaterally to decide on applications and authorisation without any limit on this power, any incumbent duties or means of control, which could led it to falsify competition by encouraging its own training courses. Moreover, the very long time period laid down in the regulation between the lodging of requests for authorisation to carry out training courses and the start date of said training deprives other training bodies of the ability to provide up-to-the-minute training. Finally, the Court points out that the criteria and restrictions seem to go beyond what is needed to ensure high-quality accountancy services and accountants are not covered by any of the exemptions to the competition rules laid down in the EU treaties. (FG/transl.fl)