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Professional Bodies Professional bodies Study • January 2021 This study was conducted by Aurore Boyeldieu, Thomas Guérin, legal advisers in the legal department, and Juliette Théry-Schultz, legal director, under the direction of Isabelle de Silva, president of the Autorité de la concurrence. 2 Foreword Professional bodies have existed in different forms since ancient times. At different times in history, professional bodies have been able to contribute to the structuring of professions or activities, from former merchant guilds to professional orders, including business unions in the IT or digital sector. The Autorité's interest in the activity of professional bodies goes back a long way. It is a fact that the functioning of professional bodies may be conducive to anticompetitive activities, in particular price agreements, anticompetitive exchanges of information or concerted actions aimed at slowing the development of competition. In this well-known landscape, a major modification will come into play in 2021. Indeed, the transposition of directive n ° 2019/1 known as “ECN+” will lead to the removal of the specific sanction ceiling which was previously applicable to professional bodies, and which severely limited the financial “risk” in the event of an infringement, this being capped at 3 million euros. With the ECN+ directive, this ceiling is no longer applicable, professional bodies are exposed, in the event of infringements of the competition rules, to penalties of up to 10% of each of its members' cumulative worldwide turnover. This therefore constitutes a "Copernican revolution" in terms of financial risk for professional bodies that would commit competition law infringements. The Autorité has therefore decided to help economic players anticipate this development, by dedicating a specific study to professional bodies. Its purpose is to analyse, in light of decision-making practice and case law, behaviours of professional bodies that may be contrary to competition law but also to recall all the essential pro- competitive actions that they often put into place. The study is thus intended to be a "turnkey" tool to promote compliance procedures on the part of the professional bodies and of their members. I hope that this work will be useful to all and will, in the future, prevent and limit the "competitive risk" associated with the participation of companies in professional bodies and unions, and will constitute a vector of good practices. Isabelle de Silva, President of the Autorité de la concurrence 3 Contents I. ROLE OF PROFESSIONAL BODIES .......................................................................... 13 A. Provision of services to members of the professional body.................. 13 B. Dissemination of market information .............................................................. 14 C. Intervention of professional bodies with the public authorities ........ 18 D. Dissemination of standards and best practices ........................................... 18 E. Collective bargaining .................................................................................................. 20 F. Role of professional bodies in the implementation of competition rules .............................................................................................................................................. 21 1. Role of professional bodies in competition procedures .................................. 21 2. Actions by professional bodies to raise awareness of competition law .... 25 II. CONDITIONS FOR THE APPLICATION OF COMPETITION LAW TO PROFESSIONAL BODIES ............................................................................................................ 26 A. Applicability of competition law to practices that constitute market intervention .............................................................................................................................. 26 B. Legal bases applicable to the practices of professional bodies ........... 28 1. Application of antitrust law to the decisions of professional bodies supporting an infringement by their members ....................................................... 28 2. Application of competition law to professional bodies in respect of an economic activity ................................................................................................................. 32 C. Establishing the liability of professional bodies and their members 34 III. PRACTICES OF PROFESSIONAL BODIES INVOLVING RISKS WITH REGARD TO COMPETITION RULES ......................................................................................................... 38 A. Cartel risks ....................................................................................................................... 38 B. Dissemination of pricing instructions ............................................................... 42 C. Dissemination of commercially sensitive strategic information ........ 50 D. Exclusionary strategies ............................................................................................. 60 1. Calls for boycott ............................................................................................................... 60 2. Conditions of membership of a professional body ............................................ 64 3. Enactment of unduly restrictive standards or technical agreements......... 67 E. Anticompetitive practices that may be committed by professional bodies under the pretext of misinterpretation of regulations ...................... 72 F. Anticompetitive practices that may be committed in the course of lobbying activities ................................................................................................................. 74 G. Collective bargaining .................................................................................................. 76 4 IV. EXEMPTIONS ............................................................................................................... 78 A. National exemptions for practices taken in application of texts ........ 79 B. Exemptions based on the existence of economic progress .................... 80 V. PENALTIES INCURRED BY PROFESSIONAL BODIES AND THEIR MEMBERS82 A. Reform of rules on financial penalties for professional organisations 82 1. Legal framework applicable before transposition of ECN+ Directive ........ 84 a) Legal ceiling of 3 million euros on the fine incurred by professional bodies ................................................................................................................................................ 84 b) On the method for determining penalties .......................................................... 86 c) On the aggravating circumstances that may be held against professional bodies ................................................................................................................................... 87 d) Assessment of professional bodies’ ability to pay ............................................ 88 2. Legal framework applicable after transposition of the Directive ................ 89 a) Specific amendments concerning the methods for determining fines for professional bodies .......................................................................................................... 90 b) On the new specific actions introduced by the ECN+ Directive against members of a professional body .................................................................................. 92 B. Publication and information measures ............................................................ 93 5 INTRODUCTION 1. The notion of professional body or organisation is a polysemic notion, which does not correspond to any precise legal definition. In labour law, the term refers to trade unions of employees or professional organisations of employers. The provisions of Book IV of the French Commercial Code (Code de commerce) relating to competition rules refer to it in order to recognise the capacity of professional and trade union organisations to submit a request for an opinion or a complaint to the Autorité de la concurrence (hereinafter “Autorité”)1. 2. This study will include under this term organisations that are intended to bring together all the companies in the same profession or sector, and the trade associations representing companies. 3. In this sense, professional bodies are distinct from civil or commercial groups, such as purchasing and reference listing offices or economic interest groups (EIG), which enable their members to pool some of their commercial activities or certain resources needed to carry them out, but are not intended to bring together all the players in the same profession or sector. 4. Their primary objective is to represent and defend the interests of all companies in a given profession or sector, even if they may carry out economic activities on an ancillary basis for the benefit of their members. Their main role is to bring together and mediate between companies, markets and public authorities. 5. Throughout history, their place and role have not always been recognised in the same way. Considered in turn as intermediaries useful to businesses in developing their activity, or as obstacles to the economic or political structure of the country, the fate of professional bodies has fluctuated. 6. Before detailing the issues in this study, it is therefore appropriate to provide a brief historical overview of the place of “intermediary bodies” in the French economy. Historical
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