Ordem dos Técnicos Oficiais de Contas v Autoridade da Concorrência.
Date: 2013-02-28
35. In accordance with settled case-law, in the context of competition law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see, inter alia, Wouters and Others , paragraph 46 and the case-law cited).
36. In that regard, in accordance with settled case-law, any activity consisting in offering goods and services on a given market is an economic activity (see, inter alia, Wouters and Others , paragraph 47 and the case-law cited).
37. In the present case, it is apparent from the file before the Court that the chartered accountants offer, for remuneration, accounting services consisting in particular, pursuant to Article 6 of the Statute of the OTOC, 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 and representing the taxpayers whose accounting they perform at the administrative stage of the taxation procedure. In addition, it is common ground that chartered accountants assume, 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.
38. That being so, chartered accountants, having regard to the manner in which their profession is regulated in Portugal, 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, by analogy, Wouters and Others , paragraph 49).
40. In accordance with the case-law of the Court, the FEU Treaty rules on competition do not apply to an activity which, by its nature, its aim and the rules to which it is subject, does not belong to the sphere of economic activity, or which is connected with the exercise of the powers of a public authority (see, inter alia, Wouters and Others , paragraph 57 and the case-law cited).
48. It is immaterial in that regard that the OTOC is regulated by public law. According to its very wording, Article 101 TFEU applies to agreements between undertakings and decisions by associations of undertakings. 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 European Union rules on competition, and in particular Article 101 TFEU, are concerned ( Wouters and Others , paragraph 66 and the case-law cited).
54. It is true that, when a Member State grants regulatory powers to a professional association, whilst defining the public-interest criteria and the essential principles with which its rules must comply and retaining its power to adopt decisions in the last resort, the rules adopted by the professional association remain State measures and are not covered by the Treaty rules applicable to undertakings (see, to that effect, Wouters and Others , paragraph 68).
57. As regards the effect on the application of Article 101 TFEU of the fact that the OTOC does not seek to make a profit, it should be noted that that 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, to that effect, Case C-222/04 Cassa di Risparmio di Firenze and Others  [2006] ECR I-289, paragraphs 122 and 123, and Case C-49/07 MOTOE  [2008] ECR I-4863, paragraph 27).
65. In that regard, it is settled case-law that, for an agreement, decision or practice to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that they have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that they might hinder the attainment of a single market between Member States. Moreover, that influence must not be insignificant (see, inter alia, Case C-238/05 Asnef-Equifax and Administración del Estado [2006] ECR I-11125, paragraph 34 and the case-law cited).
66. Since they apply to the whole territory of the Member State in question, rules such as the contested regulation are liable to affect trade between Member States, within the meaning of Article 101(1) TFEU (see, by analogy, inter alia, Joined Cases C-94/04 and C-202/04 Cipolla and Others  [2006] ECR I-11421, paragraph 45 and the case-law cited).
70. In accordance with settled case-law, when assessing the effects of a decision of an association of undertakings in the light of Article 101 TFEU it is necessary to take into consideration the actual context in which it is situated, in particular the economic and legal context in which the undertakings concerned operate, the nature of the goods or services affected, as well as the real conditions of the functioning and the structure of the market or markets in question (see, inter alia, Asnef-Equifax and Administración del Estado , paragraph 49 and the case-law cited).
71. Article 101(1) TFEU does not restrict such an assessment to actual effects alone, as that assessment must also take account of the potential effects of the decision in question on competition within the internal market ( Asnef-Equifax and Administración del Estado , paragraph 50 and the case-law cited).
72. Although it is for the referring court to examine whether the contested regulation has had or is likely to have harmful effects on competition in the internal market, it is for the Court to provide it for this purpose with the points of interpretation of European Union law which enable it to reach a decision (see, to that effect, Case C-439/09 Pierre Fabre Dermo-Cosmétique  [2011] ECR I-9419, paragraph 42).
77. Should that be the case, the distinction drawn in the contested regulation between institutional training and professional training on the basis of their subject-matter is not justified. In that regard, it must be borne in mind that, as is apparent from paragraph 7 of the Commission Notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5), a relevant product market comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer, by reason of their characteristics, their prices and their intended use.
88. A system of undistorted competition, such as that provided for by the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators ( MOTOE , paragraph 51).
91. Such rules, which grant a legal person such as the OTOC the power to rule unilaterally on applications for registration or approval submitted with a view to the organisation of training sessions, without that power being made subject by those rules to limits, obligations or a review, could lead the legal person holding such power to distort competition by favouring the training which it organises itself (see, by analogy, MOTOE , paragraph 52).
93. However, 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. More particularly, account must be taken of its objectives (see, to that effect, Wouters and Others , paragraph 97).
96. Next, it is necessary to examine whether the restrictive effects which follow from the contested regulation can reasonably be regarded as necessary to guarantee the quality of the services offered by chartered accountants and whether those effects do not go beyond what is necessary to ensure the pursuit of that objective (see, to that effect, Wouters and Others , paragraphs 97, 107 and 109).
102. It must be borne in mind, in that regard, that the applicability of the exemption provided for in Article 101(3) TFEU is subject to the four cumulative conditions laid down in that provision. Firstly, the decision concerned must contribute to improving the production or distribution of the goods or services in question, or to promoting technical or economic progress; secondly, consumers must be allowed a fair share of the resulting benefit; thirdly, it must not impose any non-essential restrictions on the participating undertakings; and, fourthly, it must not afford them the possibility of eliminating competition in respect of a substantial part of the products or services in question (see, to that effect, Asnef-Equifax and Administración del Estado , paragraph 65).
105. Clearly, in that regard, it is not apparent from either the documents in the file sent by the referring court or from the observations lodged before the Court that the compulsory training of chartered accountants is of general economic interest exhibiting special characteristics as compared with that of other economic activities or, even if it were, that the application of the rules of the Treaty, in particular those relating to competition, would be such as to obstruct the performance of such a task (see, by analogy, Case C-179/90 Merci convenzionali porto di Genova  [1991] ECR I-5889, paragraph 27).
106. In any event, undertakings falling within the scope of Article 106(2) TFEU may rely on that provision of the Treaty to justify a measure contrary to Article 101 TFEU only if the restrictions on competition, or even the exclusion of all competition, are necessary in order to ensure the performance of the particular tasks assigned to them (see, to that effect, Case C-203/96 Dusseldorp and Others  [1998] ECR I-4075, paragraph 65; Case C-320/91 Corbeau  [1993] ECR I-2533, paragraph 14; and Case C-393/92 Almelo  [1994] ECR I-1477, paragraph 46).