Local view for "http://purl.org/linkedpolitics/eu/plenary/2001-04-05-Speech-4-242"
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"en.20010405.14.4-242"2
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"C
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Mr President, ladies and gentlemen, promoting competition amongst the liberal professions in the interests of consumers is one of the avowed priorities of my colleague, Mario Monti. I welcome this opportunity to be able to present our policy to Parliament on his behalf and to comment on it.
In areas in which compulsory uniform tariffs apply, competition must result from quality. It is therefore important for members of the profession to publicise their special fields and to be able to advertise. The Court of Justice just recently pointed out that advertising on every market is an important competitiveness factor since, in this way, the advantages of individual market participants, the quality of their services and tariffs are conveyed more clearly.
The Court confirmed the Commission’s opinion that a ban on comparative advertising seriously affected the ability of the most competitive members of the profession to expand their services and also had a negative impact when the customer base was confined to the single market.
Finally, on the question of the country-of-origin principle, it must be noted that this principle helps to bring about a single market. It is anchored in the Parliament and Council Directive 98/5/EEC facilitating the permanent exercise of the lawyer’s profession and guarantees, among other things, that lawyers can establish themselves using the professional title of the Member State in which they completed their training by simply registering in the host country. The directive aims to enable layers who practice under the title given by their country-of-origin to establish branches and subsidiaries.
In general, the Commission continues to ensure that the advantages of freedom of movement, which can be achieved through the country-of-origin principle, are weighed against the general interest, which is protected in the host country and recognised under Community law.
The Commission is currently looking into how it can make further progress concerning the conditions for the cross-border provision of certain services.
The Commission agrees with you that guaranteeing the quality of services is of the utmost importance because customers, that is, consumers, are often in a weaker position than those who provide these services. A rule which is solely targeted at guaranteeing top quality services without distorting competition is clearly in the interests of consumers. This holds true regardless of whether the rule is introduced by the state or by a professional organisation.
The Community’s competition rules do not therefore apply to purely professional rules. Whether a rule is a purely professional rule must be determined from one case to the next. In so doing, account must be taken of the impact of the rule on the freedom of action of members of the profession or of professional organisations as well as consumers.
As far as determining compulsory tariffs or rates of charges is concerned, it depends, firstly, on who determines the fees or rates of charges and, secondly, on what interests are taken into consideration. The determining of uniform fees by members of a profession is a fundamental violation of competition rules. Justification on grounds of professional ethics is not recognised. At the same time, Member States only have the right to determine compulsory tariffs if these fees are objectively justified on grounds of the general interest.
The Commission is of the view that this requirement is met if the mandate and the power of the authority issuing the rule in question is sufficiently clearly and unequivocally expressed in the rule itself and if there is no room for unlawful agreements to be reached between members of the profession.
The Commission does, however, have certain reservations concerning the interpretation of the case law referred to in the question, if this interpretation leads one to believe that only fees which are determined by professional bodies or associations of all members of a given profession can be subject to competition law. What is important however is that the existing, clear, objective and justified criteria of general interest, which are determined by the state, are met.
These criteria must include consideration of the interests of consumers and not only consideration of the interests of the profession. The quality of services should be guaranteed through other, less restrictive, means than the determining of fees. It is therefore not enough that a fee agreement is approved or confirmed by the relevant authorities in order for it to be exempt from the applications of competition rules.
A price agreement reached between members of a given profession, that is, between competitors, is a fundamental violation of competition rules. Moreover, a Members State can violate its obligations out of the EC Treaty if the rule in question removes the effectiveness of competition rules. This is the case, for example, when a state obliges the profession to determine uniform fees without specifying the criteria of the common good which have to be met.
A breach of contract takes place if a Member State transfers its power to determine fees to a professional association without reserving the right of supervision. For the sake of completeness, I would like to point out that the Commission does not support the determining of compulsory tariffs but at most tolerates it under certain circumstances."@en1
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