EC competition law and the liberal professions : a discussion of the economic and legal implications for the professions

Abstract

This Dissertation deals with the application of EC competition law to the liberal professions, and with the problems in relation to the application of the law to the professions. It contains a thorough analysis of the sector of the liberal professions, where the market is characterised by information asymmetry and other problems caused by such asymmetry such as moral hazard and adverse selection. These problems in the market for liberal professions lead to market failure justifying the regulation of the sector by public authorities in the Member States of the European Union and (self)-regulation by SRAs. The core problem identified in (self)-regulation of the liberal professions is the existence of restrictions on competition and the existence of entry barriers and monopoly rights. The main restrictions on competition have been analysed in detail in this Dissertation, restrictions which have been identified by the Commission in a communication adopted in 2004. The different approaches in the US and EU regarding the application of the law to the professions have been analysed in detail. In both jurisdictions, competition law has been applied to the professions although with certain difference. This difference in the application of competition law to the professions is explainable because while the US is a federation of sovereign states under a Constitution where the States are sovereign, the EU is a union of States bound by an international Treaty seeking to achieve negative integration of markets. This explains the difference of approach with regard to the state action doctrine as applied to the professions, where in the US SRAs are immune from liability because the action is compelled by the State acting as a sovereign, while in the EU there is the liability of the Member State for anti-competitive state action. In this Dissertation the issue that members of the liberal professions and their associations are subject of EC competition law as undertakings and association of undertakings has been dealt with. Reference has been made to the case law of the ECJ and CFI and to the decisional practice of the Commission. The problem of state involvement and the public interest exception as judicially created by the ECJ has been dealt with. The implications are clear for the liberal professions and the associations of liberal professions. They are market participants active in a relevant market and as subjects of competition law they cannot be in breach thereof by means of involving in anti-competition conduct. In this Dissertation the conclusion is that the Commission has to adopt a competitive self-regulation strategy where SRAs adopt competitive self-regulation and not anti-competitive restrictions. The way forward for both the Commission, the NCAs and SRAs in the Member States, and the public authorities involved in the area of the liberal professions, is agreement on a European framework of self-regulation without the competitive restraints where the core values of the professions are safeguarded.