Case C-1/12, Ordem dos Técnicos Oficiais de Contas – professional education and the scope of EU cartel law [judgment 2013, ECLI:EU:C:2013:127]

Where continual professional education is provided solely by a profession’s regulatory body, is EU cartel law infringed?

**Facts
**The OTOC is the Portuguese regulatory body of a type of accountant [Ordem dos Técnicos Oficiais de Contas]. Its members are obliged to follow continual professional education. This education is often in the form of seminars. According to a Regulation, the OTOC is the only one that can provide institutional education to this type of accountant. In 2006, the Portuguese Competition Authority [Autoridade da Concorrência] wrote to the OTOC about how the training was being organised.

Judge Paulo Barreto reported the parties’ main arguments in the referring order. That is to say, the OTOC submitted that the Portuguese Competition Authority had made its assessment on the basis of Article 81 EC (now Article 101 TFEU) without having taken into consideration Articles 16 EC and 86 EC (now 106 Article TFEU), which it should have done since professional regulatory bodies provide services in the general economic interest.

Further, the OTOC submitted that the compulsory training regulation could not be considered to be an infringement of competition law: the compulsory training system fell outside the economic sphere; indeed, it formed a part of its exercise of public powers vested in it by the state. As a result, the OTOC did not form an association of undertakings.

The absence of a profit motive prevented the OTOC from being equated with other establishments which supplied education. Their differing goals meant that it was incorrect to come to a finding that the OTOC was on the relevant market for the training of chartered accountants.

The Regulation relating to obtaining education points did not impede or distort competition because it used objective, clear and non-discriminatory criteria. That this Regulation granted the OTEC a particular position could not be contrary to competition law given that it was the regulatory body charged with regulating the profession. That the OTEC was solely competent to provide institutional education was equally not contrary to competition law given that it, as the regulatory professional body, was to ensure the quality of the services provided to the profession’s members. Moreover, the rule complied with the principle of proportionality that is inherent in Article 101 TFEU.

The Portuguese Competition Authority, the Lisbon Commercial District Court and the Portuguese Public Ministry took a different view. Namely, the OTOC was a public body subject to competition law, and having approved the Regulation for obtaining educational points, was acting as an association of undertakings. In doing this, the OTOC and the chartered accountants performed an economic and profitable activity. Furthermore, the Regulation which related to training points had impeded, limited, and distorted competition to an appreciable extent.

Questions Referred
According to the Curia website, the Tribunal da Relação de Lisboa has asked:

1. Must an institution such as the Ordem dos Técnicos Oficiais de Contas (OTOC) be regarded in its entirety as an association of undertakings for the purposes of applying the Community competition law rules (training market)? If so, is the present Article 101(2) TFEU to be interpreted as also rendering subject to those rules an entity which, like the OTOC, lays down binding rules of general application and does so in compliance with legal requirements concerning mandatory training of chartered accountants with a view to providing citizens with a quality service that can be relied on?

2. If an entity such as the OTOC is required by law to implement a mandatory training system for its members, may the present Article 101 TFEU be interpreted as allowing the possibility of challenging the setting up of a training system legally imposed by the OTOC and by the Regulation governing that system, in so far as the latter strictly confines itself to giving effect to the legal requirement? Or, on the contrary, does this matter fall outside the scope of Article 101 and must it be examined under the present Article 56 et seq. TFEU?

3. Having regard to the fact that the Wouters judgment [Case C-309/99 Wouters [2002] ECR I-1577], and similar judgments, were concerned with rules having an impact on the economic activity of the professional members of the professional association in question, do Articles 101 and 102 TFEU preclude rules on the training of chartered accountants which have no direct influence on their economic activity?

4. In the light of Union competition law (in the training market), may a professional association impose the requirement, for the practice of the profession, of particular training provided only by it?