ADVISORY OPINION ON THE REORGANIZATION OF THE INTELLECTUAL PROFESSIONS
PRESS RELEASE
Advisory opinion on the reorganization of the "intellectual professions"
The Authority, exercising its consultative powers under Section 22 of the Antitrust Act, and in response to a request for an opinion from the Ministry of Justice, submitted a report to parliament and the government on the possible anticompetitive effects on and interference with the proper functioning of the market, that might stem from the provisions of Bill no. 5092 "empowering the government to reorganize the intellectual professions".
The Authority noted firstly that the Bill did not provide any criterion to reduce current regulation and selectively verify the activities reserved exclusively to certain professions which were organized into associations, in accordance with the guidelines issued on various occasions in the past by this Authority.
Statutory professional associations, giving exclusive rights to their members to practise the professions, should only exist in exceptional cases. But in the draft legislation at issue, because of the indeterminate nature of the notion of "public interest" the criteria on which the system of statutory exclusive professional associations is based remain vague, with the result that the system could be further extended.
In relation to the regulations governing access to the professions, the Authority emphasized that the Bill did not specify that compulsory registration with the professional association should only be required to practise certain activities for which the profession had exclusive rights.
Whereas the Bill failed to lay down criteria governing the way in which the State entry examination was to be run, it retained the possibility to restrict the number of new entrants to the profession, and the possibility of holding "competitive entrance examinations" for the exercise of what it terms "public functions".
With reference to the mandatory professional apprenticeship, it took up the guidelines issued by the Authority relating to the need to make provision for alternative forms of apprenticeship. However, it failed to lay down any provisions specifying the cases in which apprenticeship is necessary, and stipulating the length of the apprenticeship.
The Authority welcomes the introduction of such procedures as "quality control" in order to raise the quality standards of professional services.
However, the introduction of such mechanisms, such as the empowerment of the professional associations "to control the permanence of eligibility requirements" should not lead to a kind of power vested in the professional associations to revoke membership which had been obtained after successfully passing a State examination. Otherwise any member of the association would be placed at jeopardy, risking having to quit the association on the basis of judgment by his or her competitors.
With reference to fees, the Authority reiterated the fact that setting non-binding fees was anticompetitive. Even though these fees were stated to be purely indicative, they were nevertheless the result of calculations carried out within the associations, with the consequential risk that they might be used as benchmarks for professionals to use to set their fees on the market, rather than being a useful benchmark to be used by their clients. As far as binding fees and charges were concerned, which the Bill accepted in the case of compulsory services, the Authority reiterated that the impossibility of permitting waivers to the fees could be accepted at most if the fees were considered to be ceilings, and at all events restricted only to cases in which the client was in a particularly weak position.
With regard to the obligation of the professional associations to issue codes of conduct, the Authority felt that the contents of such codes should not go so far as to regulate conduct to be followed on the market.
The Authority welcomed the decision to abolish the ban on professional advertising. However, it pointed out that the delegated powers relating to the guarantee of "truthful advertising information" did not appear to be sufficiently well defined and specified.
As far as professional associations themselves were concerned, the Authority expressed the hope that parliament would propose solutions that would give professionals a wide range of possibilities for practising in the form of partnerships, enabling them to choose whichever form they deemed most appropriate.
Lastly, the Authority emphasized the need to introduce statutory measures to mitigate the current rigid rules governing the incompatibility of professional services, which were often unjustified and disproportionate in terms of the purposes for which this provision existed.
Rome, 19 February 1999