Keywords

Summary



Keywords

1. Competition - Community rules - Scope ratione materiae - Rules of professional conduct organising the exercise of a profession - Included - Comparative advertising as between professional representatives before the European Patent Office

(Art. 81(1) EC; Code of Professional Conduct for Representatives before the European Patent Office, Art. 2(b))

2. Competition - Agreements, decisions and concerted practices - Prejudicial to competition - Code of Professional Conduct for Representatives before the European Patent Office - Rule of professional conduct prohibiting an exchange of views with a client on the initiative of another representative - Not prohibited

(Art. 81(1) EC; Code of Professional Conduct for Representatives before the European Patent Office, Art. 5(c))

3. Competition - Agreements, decisions and concerted practices - Prohibition - Exemption - Duration

(Art. 81(3) EC)

4. Community law - Principles - Rights of defence - Principle of the right to a fair hearing - Observance in the context of judicial proceedings - Scope - Difference in relation to administrative proceedings in competition matters

Summary

1. The mere fact that rules which organise the exercise of a profession are classified as rules of professional conduct by the competent bodies does not mean that they fall as a matter of principle outside the scope of Article 81(1) EC.

Only an examination on a case-by-case basis permits an assessment of the validity of such rules under Article 81(1), in particular by taking account of their impact on the freedom of action of the members of the profession and on its organisation and also on the recipients of the services in question.

In that connection, Article 2(b)(3) of the Code of Conduct for Professional Representatives before the European Patent Office, which prohibits only the mention of the name of another professional entity unless there is a written cooperation agreement between the member and that entity, and thus seeks only to ensure that a professional representative does not rely unduly on professional relationships, does not constitute a restriction of competition and is not therefore incompatible with Article 81 EC, in so far as it prohibits advertising comparing professional representatives.

However, the simple prohibition of comparative advertising provided for by Article 2(b)(1) of that Code of Conduct restricts the ability of more efficient professional representatives to develop their services, with the consequence, inter alia, that the clientele of each professional representative is crystallised within a national market.

Where it is not shown that the absolute prohibition of comparative advertising is objectively necessary in order to preserve the dignity and rules of conduct of the profession concerned, the lawfulness of a decision of the Commission concluding that such a prohibition falls within the scope of Article 81(1) EC cannot be challenged.

( see paras 64-65, 70-71, 74-75, 78-79 )

2. Article 5(c) of the Code of Professional Conduct for Representatives before the European Patent Office does not prohibit the offer of services, nor does it prohibit a representative, when approaching the client of another representative, from providing any information relating, in particular, to his experience, his skills, his training or his fees or an exchange of views, even on a specific case, if the client declares his wish to have an independent opinion or expresses his intention to change representatives. It prohibits only an exchange of views with a client on the initiative of a representative about a specific case which has been terminated and which was handled by another representative, and that prohibition can be lifted by the client.

The objective pursued by Article 5(c) is to prevent a representative, when offering services to a client, from discrediting a fellow professional by questioning his conduct of a case which has been terminated. It does not constitute a restriction of competition within the meaning of Article 81(1) EC.

( see paras 95-96, 98-99 )

3. The duration of an exemption under Article 81(3) EC must be sufficient to enable the beneficiaries to achieve the benefits justifying such exemption.

( see para. 129 )

4. Although the Commission's failure to disclose the opinion delivered by the Advisory Committee on Restrictive Practices and Dominant Positions is not contrary to the principle of the right to a fair hearing in the administrative stage of a proceeding pursuant to Article 81 EC, nevertheless, except in exceptional circumstances, parties to judicial proceedings cannot, without infringing the adversarial principle, base their claims on documents which they cannot adduce as evidence.

( see para. 133 )