On the edges of the market: the Court of justice of the European Union and information asymmetry in the regulated professions

Some characteristics of the regulated professions cast doubt on whether it is appropriate to apply competition rules to them. Unlike traditional activities, the professions contain a substantial personal aspect relating to the practitioner, who draws on years of training and experience in his field to provide his services. This characteristic, particularly the intellectual aspect, places these activities on the edges of the market, not far from the practice of an art. Competition between professionals focuses on quality, the personally-tailored relationship with clients and speed of execution. In contrast to traditional economic activities, relations between the professional and his client are marked by high information asymmetry. In this context, professional rules (for instance, advertising bans or tariff regulation) that go against EU competition rules can nonetheless help to prevent adverse selection and moral hazard phenomena, and work in favour of the public interest. At a time when economic justification of European law decisions has become very important, can the economic concept of information asymmetry be an argument, a means of legal challenge, actionable before the courts? Can it lead to moderation of the application of competition rules in the regulated professions? To answer these questions, we look specifically at case law issued by the Court of Justice. The first section deals with the gradual emergence of the concept of information asymmetry in the opinions issued by the Court's Advocates General on the question of regulation of professions. The second section discusses the only two decisions that have referred to the concept, and the third and final section concludes on the specific irreducibility of the regulated professions, which in our opinion justifies consideration of the information asymmetry phenomenon by the Court.