ECJ rules that training rules put in place by a professional association do fall within the ambit of Article 101 TFEU - OTOC

17 June 2013

Victoria Moorcroft

On 28 February, the ECJ ruled in Case C-1/12 Ordem dos Técnicos Oficiais de Contas that professional rules put in place by the Portuguese chartered accountants' professional association (OTOC), which required chartered accountants in Portugal to obtain all short training (of less than 16 hours) from OTOC itself, were anti-competitive in breach of Article 101 TFEU.  

It ruled that OTOC was an association of undertakings whose decisions were subject to Article 101. Although OTOC was required to lay down training rules by legislation, the detail of those rules was for it to decide and were therefore capable of being caught by Article 101. By taking a decision which reserved to itself all shorter training sessions for chartered accountants, OTOC infringed Article 101.     

The proceedings arose out of decision by the Portuguese competition authority that OTOC had put in place an anti-competitive system of compulsory training for chartered accountants.  

The authority said that OTOC had infringed Article 101, which prohibits not just anti-competitive agreements between undertakings but also anti-competitive decisions by an association of undertakings.  In appeal proceedings against the authority's decision, the national courts referred a number of questions to the ECJ; it asked whether (1) OTOC was to be regarded as an association of undertakings and, if so, whether binding rules that such a body might lay down in relation to training were subject to Article 101; (2) whether the fact that the laying down of the rules was required by legislation rendered Article 101 inapplicable (perhaps bringing the rules within the scope of Article 56 instead); (3) whether the rules could still be caught by Article 101 although they had no effect on the economic activity of OTOC's members; and (4) whether rules that reserved training to OTOC alone were permissible.

The ECJ considered firstly, and unsurprisingly, that OTOC was an association of undertakings.  Its members are undertakings (being engaged in economic activity).  In respect of the decision in question, OTOC's rules did belong to the "sphere of economic activity", even though they may not have affected the chartered accountants, as they had a direct impact on the market for compulsory training for chartered accountants (on which OTOC itself was active). 

Secondly, it concluded that the Portuguese legislation requiring OTOC to lay down training rules did not permit OTOC to escape from the application of Article 101.  The legislation did not give OTOC the exclusive right to provide the shorter training sessions, nor did it set out what the rules must be.  The rules were therefore adopted solely by OTOC, in its own discretion, without any input from the State. 

Finally, the ECJ ruled that rules which reserved for OTOC a significant part of the market of compulsory training for chartered accountants were likely to distort competition on the market of compulsory training for chartered accountants.  The rules did not ensure equality of opportunity between the various economic operators, eliminated competition for the shorter training sessions and were not necessary to guarantee the quality of the services offered.  Access to the training market should be way of clearly defined, transparent, non-discriminatory, reviewable criteria likely to ensure equal access. 

The decision is interesting as it is the first time that the ECJ has considered its own decision in Wouters in any detail.  In Wouters the ECJ held that the decision of a profession body was outside Article 101 because of the legislative environment in which it was made (where the national legislation had laid down the principles and objectives that the professional body had to follow).  It was a somewhat surprising decision as it appeared to create a new exclusion from Article 101 that did not appear in the Treaty in any express way.  

The OTOC decision recognises the limits of the Wouters doctrine, concluding that where rules are laid down almost entirely at the discretion of the professional body (albeit that they were required by legislation to lay down such rules) the professional body cannot escape Article 101.  Interestingly though, it also quite clearly recognised and applied the Wouters 'exemption' suggesting that it is a principle that it is content to recognise.