The professional services sector has long been the focus of attention from antitrust authorities, both in the form of competition advocacy through the study of the sector's problems and proposals for actions aimed at injecting competition there, and as the object of investigations and formal proceedings against anti-competitive conducts.
The example serves to illustrate the two core activities of the Comisión Nacional de la Competencia (CNC) and how they interact to achieve the objective of making markets more efficient from the standpoint of competition, in this case, the professional services sector. On the advocacy front, the former Spanish Competition Court (Tribunal de Defensa de la Competencia) published in 1992 its Report on the free practice of professions. Proposal to adapt the provisions on self-regulated professions to the rules of free competition prevailing in Spain , and, later on, in 1995, a new report titled Competition in Spain: Current state and new proposals, in which it once again analysed this sector.
During all this time, however, the professional services sector has remained a priority and continuing focus of investigation by the Spanish antitrust authority. With these efforts the CNC seeks to combat anti-competitive conducts such as agreements, practices and decisions of associations that end up harming consumers. It should be noted that since 1992, the formal proceedings involving professional services and, in particular, the Professional Colleges (Colegios Profesionales) that regulate them, have accounted for nearly 10% of the total case load. The main constraints on competition addressed in those investigations were those that established barriers to entry in the professional association regulating practice of the profession, mainly in the form of requirements hindering exercise of the profession in the jurisdiction of other associations; those which seek to defend reservations of activity not supported by law on the basis of arguments against encroachment by other professions; pricing restrictions, both in the form of fee fixing and, indirectly, through the system of certifications of project approval known as "visados" issued by professional bodies; and restrictions on advertising.
The large number of cases underscored the importance of the sector from a competition standpoint, and indicated that the reforms undertaken of the legislation governing professional associations since 1996, aimed at establishing free competition in the practice of self-regulated professions, had not solved some of the problems of the sector, which continued to be marked by situations contrary to free competition between professionals. Consequently, the CNC decided to undertake a new competition advocacy initiative and in September 2008 published its Report on the professional services sector and professional associations.
Competition advocacy is not the same as the investigative function (though the two are complementary). Promoting competition does not involve opening proceedings against specific companies, but rather in carrying out analyses and research work on competition issues, proposals for liberalisation, deregulation or regulatory amendment, and in preparing reports on obstacles to the maintenance of effective market competition that arise from the application of legal rules. This is what was done in the 2008 Report, which made a number of recommendations so that professional services could be provided in a setting that is more open to competition and hence more beneficial to consumers. The CNC intends to continue working for competition, with the tools at our disposal –investigation and advocacy– in this and other markets in order to make them more efficient.