Attorneys and Solicitors Fees and Competition Law: Only a Formalistic Question? Comment on the ECj Judgment in the Arduino Case (C-35-99) and on the Spanish Competition Court on the Case of Solicitors (477/1999) (Los Precios de Abogados y Procuradores Frente al Derecho de la Competencia: Sólo Cuestión de Formas? Comentario de la STJCE Arduino (C-35/99) y de la RTDC Procuradores (477/1999) (Spanish)
Fundación Instituto de Empresa, S.L. - IE Business School
December 31, 2002
Anuario de Derecho de la Competencia, pp. 507-537, 2002
The State Action doctrine provides a dangerous exception to the application of the rules of competition in certain activities. In its traditional version, the European Court of Justice (ECJ) considered a number of features associated with the authorization by public authorities of certain anti-competitive conduct, thereto precluding the application of antitrust law. Although this doctrine had an apparent solid construction behind it, its recent formulation by the ECJ in the Arduino case is a dangerous turning point, which has to be criticized. The ruling is proof of excessive deference to governmental intervention, too formalistic, forgetting that the practices that are to be authorized should be justified in the public interest. The situation contrasts with the situation according to Spanish law in which, following amendments introduced by Act 52/1999, the powers of government to exclude the application of the rules of competition are limited.
The paper critically analyzes the ECJ Arduino judgment and the resolution of the Spanish Competition Court in the case of fees charged by Spanish solicitors (procuradores), which deals with a similar situation at the domestic level. In both cases the relevant issue refers to the setting and the approval by professional organizations of mandatory fees for legal professionals. Finally, the paper emphasizes the negative effects of price-fixing in the markets for legal services and proposes a reformulation of the State action doctrine of more consistent with the principle of free competition in the European common market.
Note: Downloadable document is in Spanish.
Number of Pages in PDF File: 15
Keywords: Competition Law, EU Law, Fees, Price Fixing, Professional Association, Profession, Lawyer, State Action Doctrine
JEL Classification: D43, D82, K21, L13, L41, L44Accepted Paper Series
Date posted: January 8, 2011
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