No recommended fees for professionals

I refer to the article No Recommended Fees For Professionals Possible by Mariosa Vella Cardona, published in the Business supplement (July 7).

Dr Vella Cardona illustrated her article by referring to a decision of the EU Commission to fine the Belgian Architects Association €100,000 because of their scale of recommended minimum fees. It is perhaps necessary to go further into detail into this incident if anything to correct the impression that from now on no fee scales are allowed.

Although it is true that the aim of the Commission is to introduce more competitiveness and transparency even in the matter of professional fees, the Directive on Services in the Internal Market (COM (2003) 755 final) acknowledges that conditions of practice vary from one country to another and that therefore it may not be possible or advisable to remove fee scales in certain cases.

The Irish Consultation document published by Forfas, on behalf of the Irish Department of Enterprise Trade and Employment, states (p.11 para.13) that "There are a number of authorisation requirements which are permissible, though they have to be non-discriminatory, necessary and proportional. This is referred to as the grey list. As with the black list, there will be a requirement on each member state to screen their current legislation to see if these requirements are contained in existing legislation and if necessary, to amend them". One of these requirements listed is "fixed minimum or maximum tariffs". (Another section deals with advertising in that "Any total prohibition on advertising in the regulated professions is banned, though regulation is allowed if it relates to the independence, dignity and integrity of the profession as well as professional secrecy". But more of that later).

The Architects Council of Europe (ACE), to which the Kamra tal-Periti (Chamber of Architects) is affiliated, has issued a press release in this decision and perhaps it is worth reproducing at this stage.

"The Architects' Council of Europe notes the decision of the European Commission to impose a fine on the Belgian Ordre des Architectes for infringement of Community anti-trust legislation.

"This is a landmark decision and the ACE wishes to draw attention to what appears to be a persistent misunderstanding about the exact nature and the specific features of the architecture profession.

"Noting that the Commission is keen to rely on consumer organisations when it comes to assessing the actual value of a service against its proposed cost, the ACE wishes to stress that the model that the Commission has in mind simply does not operate in the case of architectural services. This is because the client for the vast majority of procurements, whether public or private, is not the actual 'consumer' nor the end-user of the building or construction realised through the provision of the contracted service. In some countries, like Belgium, where the systematic recourse to the architect is regulated by law, the missions of the architect include elements of 'public service' delegated to him/her by the state.

"It is a fact that the mission of the architects cannot be compared from one country to another. Therefore, it is necessary to have specific rules for each situation. The price is not the only criterion for judging the quality of a service. Regulatory bodies, such as, for instance an order or a chamber, which are institutions usually created by a government decision to, among other things, guarantee the quality of the services provided by its members, are highly conscious, since a long time, of the necessity to assess the elements of the service that are necessary to carry out a quality mission. For obvious reasons, notably the lack of available expertise, consumer organisations are not in a position to judge the resources necessary to accomplish the mission of the architect in order to deliver quality for a sustainable built environment. The ACE has therefore engaged in working out a comprehensive Quality Charter that has consumer protection as a central element and it has already adopted principles to this end.

"The ACE is committed to achieving the Lisbon Agenda. The pursuit of the realisation of the internal market in Europe, the enlargement of the Union to new member states and globalisation are major economic, social and cultural challenges. Thus, there is a certain incoherence in the fact that the Commission is pursuing a policy, which aims to achieve a new EU governance through a better involvement of and dialogue with civil society and, at the same time, it is further implementing its competition policy without taking due account of the differences between different sectors of the economy.

"At any rate, it is clear that the dimension of the public and general interest makes it essential to have professional rules in place to guarantee good professional practice. The ACE and its members have the public interest at the heart of their concerns. This is why the ACE actively supported the adoption by the European Council, in February 2001, of a council resolution on architectural quality in the urban and rural environments. In this resolution the council has called on the Commission, in particular, to ensure that architectural quality and the specific nature of architectural services are taken into consideration in all its policies, measures and programmes."

As a council member of the KTP I have been following the issue concerning our Belgian colleagues. The Report on Competition in Liberal Professions (COM (2004) 83 final) was published on February 9 accompanied by a press release which stated inter alia that "The European Commission calls on member states, the professions and their regulatory bodies to reform or eliminate price-fixing and other restrictions which prevent competition between, among others, lawyers and architects unless clearly justified by public interest considerations".

There are certain similarities but also important differences between the Belgian tariff and ours. In both cases the fee scale is a minimum, however theirs is recommended while ours is mandatory. The Belgian recommended minimum fee scale is meant to apply to all architectural services provided in Belgium, regardless of whether the intervention of an architect is legally required or not. In our case the tariff only applies to services rendered by a perit. Interestingly the Belgian fee scale dates back to 1967, which is about the same time that our fee scale was drawn up.

There is however one fundamental difference. The Belgian tariff, although drawn up in 1967, was never formally endorsed by the state. Our tariff forms part of the Code of Organisation and Civil Procedure. From discussions with our European colleagues it appears that once the tariff forms part of national law then it cannot be challenged. Even if this were the case there is no room for complacency. The Chamber of Architects has already begun a revision of the present tariff and is taking careful note of both the directive on services and the report on competition.

In conclusion, the directive and report indicate the way forward but allow the opportunity for each country to assess its needs and, if these are found to be in conflict with the proposal, to present a case for retention or at least modification of the status quo.

The Ministry for Competitiveness and Communication has just published a consultation document on this directive. Constituted bodies and professional organisations should now be prepared to give their input so that the final document representing the Maltese government's position will reflect the commitment of these organisations to providing the best possible professional service to the community.