2005/8/EC: Commission Decision of 24 June 2004 relating to a proceeding pursuant to Article 81 of the EC Treaty concerning case COMP/A.38549 — Belgian Architects' Association (notified under document number C(2004) 2180)
Date: 2004-06-24
Institutions: European Commission
Subjects: Belgium, control of restrictive practices, professional association, restriction on competition, sanction (EU), town-planning profession

L 4/10

EN

Official Journal of the European Union

6.1.2005

II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 24 June 2004
relating to a proceeding pursuant to Article 81 of the EC Treaty concerning case COMP/A.38549 —
Belgian Architects' Association

(notified under document number C(2004) 2180)

(Only the Dutch text is authentic)

(2005/8/EC)

On 24 June 2004, the Commission adopted a decision relating to a proceeding under Article 81 of the EC
Treaty. In accordance with the provisions of Article 30 of Regulation 1/2003, the Commission herewith
publishes the names of the parties and the main content of the decision, including any penalties imposed. In
doing so, it has regard to the legitimate interest of the undertakings in the protection of their business secrets. A
non-confidential version of the full text of the decision can be found in the authentic language of the case (NL)
and in the Commission's working languages (FR, EN, DE) on DG COMP's website at http://europa.eu.int/
comm/competition/index_en.html.

(1)

(2)

BACKGROUND

The European Council meeting in Lisbon in March 2000
approved a programme of economic reform aimed at
making the EU the most competitive and dynamic
In
knowledge-based economy in the world by 2010.
improving
European
competitiveness
economy there is an important part to be played by
professional services.

the

the

of

The Decision on the scale of minimum fees drawn up by
the Belgian Architects' Association is in line with the
Commission's overall policy towards services in general
and professional services in particular. This is reflected in
for Directives on services (1) and on
the proposals
professional qualifications (2),
and the Commission

(3)

(1) Proposal for a Directive of the European Parliament and of the

Council on services in the internal market, COM(2004) 2.

(2) Amended proposal for a Directive of the European Parliament and
of
the Council on the recognition of professional qualifications
(presented by the Commission pursuant to Article 250(2) of the
EC Treaty), COM(2004) 317.

in

on

competition

professional
communication
services (3).
In this communication the Commission
acknowledged that some regulation in the sector of
professional services may be justified, for instance to
reduce
between
customers and service providers. It however expressed
its belief
in some cases more pro-competitive
mechanisms than those which presently exist can and
should be used.

information

asymmetry

that

the

of

Professional services are usually characterised by a high
level of regulation, in the form of either state regulation
or self-regulation by professional bodies. Some of this
regulation is potentially restrictive, the five main cate-
gories being (i) price fixing, (ii) recommended prices, (iii)
advertising regulations,
(iv) entry requirements and
reserved rights, and (v) regulations governing business
structure and multi-disciplinary practices.

(3) Report on Competition in Professional Services, COM(2004) 83.

6.1.2005

EN

Official Journal of the European Union

L 4/11

(4)

(5)

(6)

(7)

(8)

prices

between

coordination

recommended prices

too have a
Like fixed prices,
significant negative impact on competition. They can
facilitate
service
of
providers. They can mislead consumers as to the price
levels that might be reasonable. It is true, at least in
they can provide consumers with useful
theory, that
information about
the average costs of services, but
there are alternative methods of providing price infor-
mation of this kind. For example, the publication of
historical or survey-based price information by inde-
pendent parties
(such as a consumer organisation)
might provide a more trustworthy price guide for
consumers, which distorts competition to a lesser extent.

At the initiative of the domestic competition authorities,
recommended prices
services have
already been ended in Finland,
in France, and in the
United Kingdom.

for architectural

SUMMARY

A scale of minimum fees was adopted by the National
Council of the Belgian Architects' Association in 1967,
and has been amended several times since; the most
in June 2002, describes it as a
recent amendment,
‘guideline’
(indicatif/leidraad). The scale lays down the
minimum fees due
services
for
to an architect
performed in independent practice in Belgium.

On 3 November 2003 the Commission sent the Asso-
ciation a statement of objections. The Association
submitted its observations within the time allowed,
and a hearing took place on 9 February 2004.

In the Decision the Commission sets out the evidence
relating to the decision to establish the fee scale, the
legal context, and the conduct of the Association that
the decision to
has
establish the scale is a decision of an association of
undertakings which has the restriction of competition

satisfied the Commission that

(9)

(10)

(11)

(12)

as its object. This is despite the fact that the Association
has described the scale as a ‘guideline’, and despite the
fact that not all architects have treated it as compulsory.

The evidence indicating that the scale sought to restrict
competition includes the intentionally rule-making tone
of the title and of the recitals in the preamble, and the
for 18 years the Association drew up and
fact
circulated a standard contract
in which the only
option for determining fees was a reference to the scale.

that

In order to find that Article 81(1) of the EC Treaty has
been infringed, it is enough that the Commission should
show that the decision establishing the scale had the
restriction of
the
Decision also sets out evidence showing that the scale
was applied at least to some extent.

its object, but

competition as

According to the Wouters case-law (1) of the Court of
Justice, a decision by an association of undertakings
does not infringe Article 81(1) of the EC Treaty when,
despite the effects restrictive of competition that are
inherent in it, it is necessary for the proper practice of
the profession, as organised in the Member State
the
concerned. The Commission takes the view that
establishment of a (recommended) minimum fee scale
by the Architects' Association cannot be considered as
necessary in order to ensure the proper practice of the
architect's profession.

After receiving the statement of objections the Asso-
ciation withdrew the scale of fees and took the steps
necessary
fact. The Commission
the
concludes that the infringement has now come to an
end. It also sets out the reasons why it takes the view
that it should impose a fine of EUR 100 000.

to publicise

(13) On 14 June 2004 the Advisory Committee unanimously
endorsed the draft Decision. On 21 June it unanimously
approved the fine proposed. The Advisory Committee
had been informed of the Hearing Officer's observations
on the proceedings.

(1) Case C-309/99 Wouters [2002] ECR I-1577.