On 13th May 2014, the Italian Competition Authority(ICA) opened an in-depth investigation into three different Italian professional orders of Architects (Rome, Florence and Turin, the “Societies”) for infringements of Section 2 of the Law No. 287 of 1990 (the “Italian Competition Law”), the prohibition against anti-competitive agreements.
The investigation started after the filing of an anonymous complaint which alleged that the Societies were trying to de facto apply professional fees (which were repealed in Italy in 2012) through the use of fee calculator software available on their web site. Professional fees were a standardised fee system for architects that was repealed in part due to concerns that it stifled price competition to the detriment of consumers.
The fee calculator would allow the architect to determine their own fee by completing an electronic form. In essence, this fee calculator would establish the monetary value of the professional activities by relying on the fees in force until 2012.
The website hosting the calculator attempted to get past the repealing of the fees and the use of the calculator by stating on its website that the fee calculator is only one of the possible calculating methods and that the architect is free to set the level of fee he or she considers more appropriate to charge to the client.
The ICA tried to assess whether professionals (architects in the case at stake) could be considered as undertakings from a competition law perspective. The ICA found that according to established case-law, professionals carry out an independent economic activity and therefore they can be qualified as undertakings. Thus the Societies are associations of undertakings and the fee calculator can be considered as an agreement made by an association of undertakings.
The ICA alleged that this fee calculator could be considered an anti-competitive agreement since architects were able to standardise their fees so as to foreclose competition in the market for architects’ services.
The ICA came to the above conclusion by pointing out that the fee calculator software was devised so as to determine exactly the same fees amount which would have been determined by using the professional fees in force in Italy until 2012.
In addition, the ICA found that such fees could represent an unlawful benchmark for all the Architects involved as the Societies still have a strong representative role.
In our view, the above decision is very welcome as it highlights the conflict between the modern and competitive European professional services market and the traditional but now antiquated (and indeed illegal) practice of professional societies removing price competition between their members through the setting of standard industry rates.