Competition and the provision of professional training
Brussels is an echo-chamber, which is a fortunate thing. A piece of news read by just a few people is soon bouncing around from contact to contact, giving it publicity. Just such an event happened this week, and I am further amplifying it by writing about it here. It is potentially very important.
A case is winging its way to the European Court of Justice on the question of mandatory professional training. The Professional Association of Chartered Accountants in Portugal (OTOC) passed a regulation in July 2007 creating credit-based mandatory training, which was made a requirement for gaining the right to practise as a chartered accountant in Portugal. The Portuguese Competition Authority found that, through this regulation, OTOC artificially segmented the training market, reserving a third of the obligatory training requirements exclusively for itself, and also stipulated specific criteria for the admission of other training bodies and the approval of their training courses. In other words, as I understand it, they made their own courses compulsory in a market which included other providers, and they controlled access by these other providers to the market.
In May 2010, the Lisbon Commercial Court (which acted as the court of first instance) partially upheld the Competition Authority’s decision, which had imposed a fine on the OTOC for anti-competitive practices. The Court lowered the fine to €90,000 (a substantial sum for most professional organisations), and declared void the OTOC Regulation. Now the Lisbon Court of Appeal is seeking a preliminary ruling from the Court of Justice of the European Union (case C-1/12), wanting clarification on the interpretation of EU competition law (Articles 101 and 102 TFEU) and Articles 56 TFEU and others, on their application to professional associations and their rules on professional training.
I do not have information on how basic qualifying training is provided around Europe, but there is very interesting information about the different provision of continuing legal education in the member states in a study conducted by my own organisation, the Council of Bars and Law Societies of Europe (CCBE). It was published at the end of last year.
So, for instance, eighteen of our full member countries have mandatory continuing training regimes. In most, it was introduced during the last decade (especially in and after 2005); there are only a few exceptions of an earlier adoption (in the 80’s and 90’s). In Germany and Switzerland, mandatory continuing training applies only to accredited specialist lawyers who have expertise in certain fields of law. Thirteen full member countries have no specific mandatory regimes - however, in all of these countries voluntary training opportunities obviously exist (often organised by the bar). Five members indicated that the introduction of a mandatory regime is currently being considered. All the details are in the study.
On a less serious note, in more than half of the member countries the mandatory continuing training obligation is measured in hours, in five a system of points is used, while four have opted for credits. In Denmark, the obligation is measured in lessons, while in Romania it is via a certain amount of events (i.e. three seminars, conferences or discussions). Obviously minimum points or credits, even with a mandatory regime, vary widely - six hours in Bulgaria against eighteen hours annually in Finland and Sweden; 10 points for Irish barristers against twenty points annually for French-speaking Belgian lawyers; and so on. And the calculations are spread on an annual or multi-annual basis, and sometimes need to be focused on specified subjects.
To return to the subject with which I opened, an interesting conclusion of the study is that, in many EU member states, bars or law societies, directly or indirectly (such as through a training centre established by the bar), provide continuing training courses. Of course the Portuguese accountancy case concerns the basic qualification as an accountant and not continuing education, and - as indicated in our study - training regimes and their legal contexts vary widely in the EU, but I suspect the case’s outcome will nevertheless be monitored by many bars and law societies.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs