COMPETITION • EUROPEAN LAW • RESTRICTIVE AGREEMENTS

The bringing together of competitors within a professional or trade organization is likely to encourage practices contrary to Article 101(1) TFEU. In particular, the conditions of access to such organizations may limit or prevent access to the market concerned. In application of the rule of reason, a procedure for the approval or exclusion of a professional organization has not been found to be automatically anticompetitive provided that the selection is made according to criteria of a qualitative nature, applied in a non-discriminatory manner which do not prevent access to the market by certain undertakings. The accreditation system must define a uniform standard that would allow the accreditation of all undertakings that meet it. The restriction imposed must also be proportionate to the objective pursued.

In addition, professional or trade organizations or bodies generally regulate relations between members, or even between members and their clients. These rules are also likely to result in restrictions of competition. The codes of good conduct established by a professional organization thus characterize unlawful decisions of association of undertakings when they limit the freedom of action of its members. However, the restriction of competition is necessary when it is a condition for the proper practice of the profession. The rules of a professional association may therefore make access to the profession subject to non-arbitrary examination conditions, to the subscription of civil insurance calculated on the member’s turnover and proportionate to the risk covered, to compliance with a code of ethics and to fixing the method of calculation of remuneration by reference to an objective and transparent criterion. Similarly, a Bar Association may prohibit its members from being associated with chartered accountants, provided that the measure is justified by the proper administration of justice and the need to devise rules of organization, qualification, ethics, control and liability that provide a guarantee of integrity and experience for consumers of legal services. On the other hand, a national order of pharmacists would go beyond the limits of the legal framework by systematically adopting the interpretation most unfavorable to the entry of new operators on the market.