On 28 February 2013, the European Court of Justice ("ECJ") ruled on a preliminary reference from the Lisbon Court of Appeals seeking guidance on the application of the competition rules to a system of compulsory training imposed by an association of professionals (Case C-1/12).
In 2004, the Portuguese association of chartered accountants (Ordem dos Técnicos Oficiais de Contas ("OTOC")) adopted a regulation under which chartered accountants were required to obtain 35 credits for training provided or approved by the OTOC (the "Regulation"). Twelve of those credits had to be obtained through training that could only be provided by the OTOC. The remaining credits could be obtained through training provided either by the OTOC or other bodies registered with the OTOC, for which an approval procedure had to be followed.
Following several complaints, the Portuguese Competition Authority found that the Regulation distorted competition on the market for compulsory training for chartered accountants and violated Article 101 and 102 TFEU.
The OTOC challenged the decision of the Competition Authority and it was upheld insofar as it concerned Article 101 TFEU. In a further appeal, the Court of Appeals of Lisbon stayed the proceedings and referred a number of questions to the ECJ.
First, the ECJ ruled that the Regulation could be considered a decision of an association of undertakings within the meaning of Article 101(1) TFEU. The Court considered that the rules in question have a direct impact on the market for compulsory training for chartered accountants and belong to the sphere of economic activity. Furthermore, the Court concluded that the regulatory powers invested in the OTOC were not subject to any conditions or criteria imposed by the state and the OTOC did not exercise powers which are typical of a public authority when adopting the Regulation.
Finally, the Court ruled that the Regulation constituted a restriction on competition to the extent that it eliminated competition within a substantial part of the relevant market and it imposed discriminatory conditions to the detriment of competitors of the association on the remaining part of that market.