Introduction
The Association of Portuguese Psychologists was investigated by the Competition Authority in 2015 following suspicion that certain provisions of its code of ethics breach competition law. In order to address the authority's competition concerns, the association has proposed certain commitments that, if accepted, will allow the case to be closed without any finding of infringement.
The Association of Portuguese Psychologists' code of ethics establishes a set of generic and specific principles which govern professional relationships, among other things. The code establishes:
- a principle of 'professional integrity', according to which psychologists will not take clients from other psychologists (Sub-section 3.5); and
- a principle of 'no duplication of interventions', according to which psychologists will not establish professional relationships with clients that are being assisted by another psychologist for the same purpose (Sub-section 3.7).
The code of ethics must be complied with by all professionals operating in Portugal, who are also subject to mandatory registration with the association.
Investigation and commitments offered
The Competition Authority initiated an investigation into alleged restrictive practices in February 2015. In December 2015 it issued a preliminary facts assessment, in which it raised concerns that the provisions of the Association of Portuguese Psychologists' code of ethics could "affect the functioning of the market in particular as they may limit the clients' freedom of choice and constituted a barrier to the freedom of exercise of the profession of psychologist".
The association proposed a set of commitments with which it sought to eliminate the competition concerns that the authority had raised during its investigation.
The proposed commitments are as follows:
- Changes to the code of ethics are proposed, by which the association intends to:
- eliminate from Sub-section 3.5 (which deals with professional integrity) the principle that psychologists will not take clients from other psychologists;
- delete Sub-section 3.7 (ie, the no duplication of interventions principle); and
- introduce a less-strict reference to the no-duplication of interventions principle in the section dealing with general principles by stating that:
"taking into account the principles of beneficence and non-maleficence, psychologists may refuse to establish professional relationships with clients who are assisted by a colleague to that same purpose whenever they think that such a duplication of intervention may be harmful to the client."
- A public announcement of the changes will be made, by which the association will commit to:
- publishing a new version of the code of ethics on its website within 60 days from the authority's final decision and an alert regarding the modifications introduced in Sub-sections 3.5 and 3.7 of the code;
- sending a letter to all of its members informing them of the changes and their entry into force; and
- providing the authority with proof that the above letter has been sent.
The opportunity to offer commitments and their suitability are usually subject to informal discussions between the party concerned and the authority, but the latter has discretion to decide on the matter. In its assessment, the authority weighs the interest to:
- deter anti-competitive behaviour (via a finding of infringement, the imposition of fines or behavioural or structural measures); and
- improve the functioning of the market at stake by eliminating a competition concern for the future.
Before the authority makes a final decision, the commitments proposed must be subject to a market consultation, during which interested third parties can submit their views.
The market consultation regarding the commitments offered by the Association of Portuguese Psychologists is ongoing. If, during the course of consultation and in light of the third-party observations, the Competition Authority considers that the commitments offered do not adequately address the competition concerns raised, it will invite the association to submit a new commitments proposal. If the public consultation results in no change to the authority's findings regarding the suitability of the commitments offered, it will adopt a final decision to close the case and impose the conditions required to guarantee compliance with the commitments offered.
In its final decision, the authority does not rule on the existence of an infringement or any liability by the party concerned. Rather, the decision makes the commitments binding on the party concerned.
Failure by the party concerned to comply with the proposed commitments entitles the authority to reopen the infringement case within two years following its closure. Conversely, confirmation that the commitments have been fulfilled prevents the future reopening of the case.
The option to close a case without finding infringement in the context of a commitments decision was formally introduced in July 2013 with the updated version of the Competition Act.
In 2015 the Competition Authority used this mechanism to close:
- an investigation into the conditions of the sale of football broadcasting rights;
- several investigations into the conditions of repair guarantees for motor vehicles; and
- a more recent investigation into resale price maintenance in the context of franchise agreements in the consumer goods retailing sector.
These cases all involved companies that were vertically related and not direct competitors.
The present case is different due to its horizontal nature. The code of ethics' provisions resulted in a non-aggression rule (or principle) between the professionals involved, which deterred or prevented them from competing directly for existing clients.
However, the horizontal aspects of the case did not prevent the authority from pursuing the alternative commitments route, which is a useful indication for other investigations.
For further information on this topic please contact Inês Gouveia at Morais Leitão Galvão Teles Soares da Silva & Associados by telephone (+351 22 616 69 50) or email ([email protected]). The Morais Leitão Galvão Teles Soares da Silva & Associados website can be accessed at www.mlgts.pt.
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