Judgment — ECLI:EU:C:2013:127
Date: 2013-02-28
Language of the case: Portuguese
Court formation: Second Chamber
Subject matter: Competition;Agreements, decisions and concerted practices;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary — Judgment of the Court (Second Chamber), 28 February 2013 1. Competition — EU rules — Undertaking — Concept — Chartered accountants — Included (Arts 101 TFEU, 102 TFEU and 106 TFEU) 2. Cartels — Agreements, decisions and concerted practices — Decisions of associations of undertakings — Concept — Rule concerning the compulsory education system of chartered accountants adopted by the association of chartered accountants of a Member State — Included (Art. 101 TFEU) 3. Cartels — Agreements, decisions and concerted practices — Effect on trade between Member States — Criteria for assessment (Art. 101 TFEU) 4. Cartels — Agreements, decisions and concerted practices — Adverse effect on competition — Decisions of associations of undertakings — Rule concerning the compulsory education system of chartered accountants adopted by the association of chartered accountants of a Member State — Assessment by the national court of the anti-competitive effects — Elimination of competition on a substantial part of the market in favour of that association and introduction, on the other part of the market of discriminatory conditions to the detriment of competitors — Infringement of the European Union competition rules — Justification by the need to ensure the quality of the services offered by chartered accountants — Absence (Arts 101(1) and (3) TFEU and 106(2) TFEU) 1. Chartered accountants offer, for remuneration, accounting services consisting in particular of planning, organising and coordinating the accounts of entities, signing their financial statements and tax declarations, acting as consultants in the fields of accounting, taxation and social security, representing the taxpayers whose accounting they perform at the administrative stage of the taxation procedure, assuming, as members of a liberal profession, the financial risks related to the exercise of those activities, since, where there is an imbalance between outgoings and revenue, a chartered accountant is required to bear the deficit personally, and carry on an economic activity and are, therefore, undertakings for the purposes of Article 101 TFEU. The complexity and technical nature of the services they provide and the fact that the practice of their profession is regulated cannot alter that conclusion. (see paras 37, 38) 2. A rule such as the Training Credits Regulation (Regulamento da Formação de Créditos), adopted by a professional association such as the Ordem dos Técnicos Oficiais de Contas (Order of Chartered Accountants; ‘the OTOC’), must be regarded as a decision of an association of undertakings within the meaning of Article 101(1) TFEU. Firstly, such a rule cannot be regarded as not belonging to the sphere of economic activity, given that the OTOC itself provides training for chartered accountants and that the access of other providers wishing to offer such training is subject to the standards set out in the contested regulation. In addition, the obligation on chartered accountants to undertake training in accordance with the rules laid down by that regulation is closely linked to the practice of their profession and failure to comply with that obligation can therefore lead to disciplinary sanctions, such as suspension for a maximum period of three years or expulsion from that professional association. Even if that regulation did not directly affect the economic activity of the chartered accountants themselves, that fact cannot, of itself, remove a decision of an association of undertakings from the scope of Article 101 TFEU. Such a decision can be such as to prevent, restrict or distort competition within the meaning of Article 101(1) TFEU, not only on the market on which the members of a professional association practice their profession, but also on another market on which that professional association itself has an economic activity. Secondly, when it adopts a regulation governing the earning of training credits, a professional association such as the OTOC does not exercise powers which are typically those of a public authority but appears rather as a regulatory body of a profession the practice of which constitutes, moreover, an economic activity. On the one hand, the legal framework within which such agreements are concluded and such decisions taken, and the classification given to that framework by the various national legal systems, are irrelevant as far as the applicability of the EU rules on competition, and in particular Article 101 TFEU, are concerned. On the other, the Statute of the OTOC does not give it the exclusive right to provide training for chartered accountants and does not lay down the conditions for access by training bodies to the market of compulsory training for chartered accountants. The fact that the OTOC does not seek to make a profit does not prevent an entity which carries out operations on the market from being considered an undertaking, where the corresponding offer of services exists in competition with that of other operators which do seek to make a profit. (see paras 41-46, 48, 51, 52, 56, 57, 59, operative part1) 3. See the text of the decision. (see para. 65) 4. A regulation which puts into place a system of compulsory training for chartered accountants in order to guarantee the quality of the services offered by them, such as the regulation governing the earning of training credits, adopted by a professional association such as the Ordem dos Técnicos Oficiais de Contas (Order of Chartered Accountants; ‘the OTOC’), constitutes a restriction on competition prohibited by Article 101 TFEU to the extent, which it is for the referring court to ascertain, that it eliminates competition on a substantial part of the relevant market, to the benefit of that professional association, and that it imposes, on the other part of that market, discriminatory conditions to the detriment of competitors of that professional association. Moreover, not every decision of an association of undertakings which restricts the freedom of action of the parties necessarily falls within the prohibition laid down in Article 101(1) TFEU. For the purposes of application of that provision to a particular case, account must first of all be taken of the overall context in which the decision of the association of undertakings was taken or produces its effects and, more specifically, of its objectives. In that regard, the restrictions on competition imposed by the OTOC appear to go beyond what is necessary to guarantee the quality of the services offered by the chartered accountants. Finally, the conditions for the application of, firstly, the exemption provided for in Article 101(3) TFEU and, secondly, Article 106(2) TFEU are not met. (see paras 68-73, 93, 97-108, operative part 2)