FACT-FINDING INVESTIGATION OF PROFESSIONAL ORDERS
PRESS RELEASE
PRESS RELEASE
PROFESSIONAL ORDERS: ANTITRUST SAYS REGULATORY INTERVENTIONS NEEDED TO STRENGTHEN COMPETITION. MANY PROFESSIONS STILL RESISTING LIBERALIZATION.
Provide for qualifying degrees and shorter practical training periods to be carried out during courses of study. Open the Orders' management committees to outsiders. Conclusion of fact-finding investigation set up to determine degree of acceptance of competition principles by 13 professional categories.
Most of the Orders are resisting the principles of liberalization introduced by way of the Bersani law which must therefore be strengthened in order to ensure greater competition in professional services.
This is the main conclusion of the Antitrust Authority's fact-finding investigation into 13 professional orders which was begun in January 2007. The investigation shows scant willingness on the part of the professional categories, with some positive exceptions, to accept into their codes of conduct those innovations that are necessary to increase competitive dynamics within the individual professions. The liberalization allowing agreed professional fees, the option to publish informative advertising and to set up multi-disciplinary companies have not been welcomed as important opportunities for growth but are seen as an obstacle to the exercise of the profession. The Antitrust Authority insists that the professional services industry cannot avoid the competitive principles that have been repeatedly enunciated at the European level as well and urges the Orders to bring their codes completely into line with the Authority's suggestions.
The investigation carried out covered the codes of conduct of architects, lawyers, workplace consultants, pharmacists, geologists, surveyors, journalists, engineers, doctors and dentists, notaries, industrial assessors, psychologists, tax accountants and bookkeepers.
The following are the principal conclusions.
INTRODUCE REFORMS TO GUARANTEE LIBERALIZATION
The fact that many Codes do not conform to the principles of competition is partly due to current laws: the Bersani decree law of 2006, as amended during enactment, unlike the original version, limits itself to stipulating the non-obligatory nature of minimum and fixed tariffs, implying that they could be considered to be a reference, recommendation or guideline for professional fees, thus significantly watering down the liberalizing impact of the reform.
Giving the Orders the power to check on advertising (likewise not in the text of the original decree law) can also result in limitations on professionals' use of this competitive lever.
With a view to encouraging the widest possible liberalization of professional services, access to the professions must be made easier and the orders should have a system that is open to receive the representations of third parties so it can play a more constructive connecting role between professionals and the clients of professional services. It is recommended, moreover, that legislation stipulate, according to the circumstances, the creation of university courses that permit students to qualify directly for the exercise of the profession. The period of practical training, too, should be proportional to the effective learning requirements for the various professions and should wherever possible be carried out during the course of study.
Finally, it would be desirable for the governing bodies of the orders to be no longer exclusively chosen from the membership but to include representatives from outside the profession.
For these reasons, the Antitrust Authority urges a legislative intervention to amend the Bersani law, which would:
1) abolish minimum or fixed tariffs
2) abrogate the orders' power to verify the transparency and truthfulness of advertising
3) provide for the setting up of qualifying degrees
4) provide for practical training to take place during courses of study
5) provide for the presence of third parties in the governing bodies of the orders
As regards the specific case of notaries, the Antitrust Authority suggests abrogating Article 30 of Legislative Decree no. 249/2006 which could be erroneously interpreted as abrogating the Bersani reform regarding advertising and fees for the services of notaries.
The Authority further urges parliament – as in a number of cases in recent years including, for example, the liberalization in changing of ownership of motor vehicles and boats - to intervene to remove the reservation of activities wherever the exclusive assignment of a given activity is not justified by the pursuit of a public interest which could not otherwise be guaranteed.
RESISTANCE ON MINIMUM TARIFFS
While a number of Orders, such as the Order of Surveyors, the Order of Tax Accountants and Bookkeepers, the Order of Industrial Assessors and the Order of Pharmacists, following recent contacts with the Authority, have aligned their codes of conduct with competitive principles as regards the determination of professional fees, many others have resisted, based in part on the idea that a professional is anchored to respect for the “decorum” of the profession in the determination of fees and that decorum requires him or her to apply the minimum tariffs.
Thus, some orders (notaries, geologists and psychologists, as well as journalists) still have professional codes of conduct that specify the application of minimum or fixed tariffs for their fees.
In other cases, there is an attempt to overcome the abrogation of obligatory minimum tariffs by stipulating in the professional code of conduct the obligation to respect the criterion of professional decorum (doctors and dentists, psychologists, geologists and engineers).
Other orders again formally reference Article 2233 of the Civil Code which allows respect of decorum, i.e. of the scale of fees or tariff, in the determination of compensation (thus the lawyers, architects and engineers), without however also referencing Article 2, Paragraph 1a) of the Bersani law, hence failing to point out the abrogation of the obligation to apply fixed or minimum tariffs.
In the Authority's view, the notion of decorum should appear in the self-regulatory codes exclusively as an incentive for competition among professionals and to reinforce the duty of ethical behaviour with respect to the clientele and not as a guide to the economic conduct of a professional. A high fee may be decorous for a highly professional and costly service but indecorous for a simple service provided in a superficial or cheap manner.
‘FILTERS’ ON ADVERTISING
A number of the professional codes of conduct examined dictate rather restrictive provisions regarding advertising; this is a sign of strong resistance to antitrust principles. Particularly loath to introduce competitive principles are the orders of lawyers, notaries, architects, engineers, doctors and dentists, psychologists and geologists. Other orders, including the new Order of Tax Accountants and Bookkeepers, the College of Surveyors, the College of Industrial Assessors and the Order of Pharmacists, have instead aligned their codes of conduct with the observations made by the Antitrust Authority during the course of the investigation, eliminating limitations on types of advertising media and the content of advertisements, including limits relating to the decorum and dignity of the profession. Only the surveyors and industrial assessors have expressly opened the way for comparative advertising.
Some orders forbid their members to publicize their fees (lawyers and notaries), others (e.g. the geologists) to use certain kinds of advertising media. Furthermore some categories have reserved themselves the right to carry out a priori controls and authorization (lawyers, psychologists, doctors and dentists, engineers, geologists), whereas the Bersani law merely foresees a check on advertisements after they have been published. Lastly, some codes specify the option or obligation to send advertisements, at the time they are published or subsequently, to the body that deals with control of professional conduct (pharmacists, psychologists, geologists and lawyers for advertisements published on the web).
Rome, 21 March 2009