THE EFFECTS OF WOUTERS ON PROFESSIONAL REGULATION:

INTERTWINING PUBLIC POLICY, PROPORTIONALITY

AND THE RULE OF REASON?

 

Alberto Martinazzi*

 

Introduction.
 
“In all markets, whenever one encounters a market problem […], the best response is to correct the market imperfection and then allow the market to work. The wrong response is to assume that the market cannot work and regulate it in such a way that there is no market at all”( [1] ).
Members of the liberal professions in Europe are subject to a level of regulation unrivalled by any other market operators.
In most cases, this regulation affects the number of  entrants into the professions, the minimum and maximum prices professionals can charge, the organizational structure of the professional body, the ability to advertise and the inter-professional links (mergers, cooperation, exchanges of information) allowed.
The constraints on competition deriving from these rules have been justified because of the need to maintain an adequate level of professional ethics (deontology) and the necessity of protecting (often uninformed) consumers from the abuses that might come from highly specialized knowledge (asymmetrical information).
In the Wouters ( [2] ) judgment, the European Court of Justice (hereafter also referred to as the ECJ or the Court) decided that insofar as regulations and rules can be considered as inherent to a particular profession (because they are inspired by the abovementioned objectives), they do not restrict competition.
This paper aims at analysing the logical path followed by the ECJ with particular attention to the concept of necessity and reasonableness of professional rules, and tries to depict the legal framework within which any future investigation by the Commission into such rules shall take place.
 
The issues in Wouters.
 
In 1993, the Netherlands Bar Association adopted the Regulation on Joint Professional Activity (hereafter: the Regulation) regarding partnerships between lawyers and other practitioners. Under the Regulation certain professionals (such as notaries, tax consultants and patent agents) were allowed to integrate their activities with those of lawyers, while accountants were prevented from entering partnership with lawyers.
According to the Bar Association, the Regulation – adopted pursuant to the Advocatenwet, the law establishing the Bar and its powers – excluded any full integration between legal and accountancy services (multi-disciplinary partnerships, hereafter MDPs) in order to guarantee the independence of the legal profession in the Netherlands.
Two members of the Bar, Mr. Wouters and Mr. Savelbergh, appealed before the General Council of the Bar against the decision of the Association to deny them entry into a partnership with accountancy firms Arthur Andersen and Price Waterhouse. Both the Council and the Rechtbank (District Court) on appeal rejected the arguments put forward by the appellants.
The Rechtbank argued that the Bar Association is a body governed by public law, established by statute to pursue a public interest and to guarantee the independence and the deontology of the members. Therefore it is not an association of undertakings and the Treaty provisions on competition do not apply.
The parties appealed to the Raad van State (hereafter: the Raad), the Court of last instance, which decided to refer several questions to the ECJ under the art. 234 EC procedure.
The first question was whether the Regulation is to be regarded as a decision of an association of undertakings within the meaning of art. 81(1) EC. In particular, the Raad asked whether the fact that the power to adopt rules is conferred on  the Bar by means of statute has any relevance and whether the pursuit of the interest of its members shall by itself prove that it is an association of undertakings or whether the pursuit of the public interest objective in the fulfilment of certain activities is sufficient to undermine this status.
The Dutch Court then asked whether the binding rules on the formation of MDPs, adopted in order to guarantee the independence and loyalty to the client of the members of the Bar, are capable of infringing art. 81 EC.
Further questions regarded the status of the Bar as an undertaking or group of undertakings for the purposes of art. 82 EC (collective dominance) and art. 86(2) EC (undertakings entrusted with the operation of services of general economic interest).
Lastly, the Raad enquired about the applicability of the combined provision of art. 3(g), 10 and 81 EC – whether it precludes a Member State from allowing the Bar to regulate the cooperation relationships with members of other professions – and about the compatibility of the Regulation with the Treaty provisions on right of establishment and freedom to provide services.
 
Is the Nederlandse Orde van Advocaten an association of undertakings?
 
The first question referred by the Raad shows that, notwithstanding the consistent case law on the point, there is still some uncertainty at national level about the applicability of the art. 81(1) concept of association of undertakings to public law bodies.
In Hoefner, the ECJ had held that the concept of undertaking “encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed” ( [3] ).
Such a broad definition led the way to the acknowledgment that professionals could be considered undertakings despite the fact that they are members of  public law-regulated professions.
In Commission v. Italy (CNSD), the Court found that the profession of customs agent functionally entails the economic character of an undertaking, notwithstanding Italy’s complaint that the requirement of an authorization for the practice of the profession and the compliance with certain conditions prevented such a classification ( [4] ).
 Since its judgment in CNSD, the Court has come to identify two defining criteria based on the composition and the legal framework of the organization’s activity, in order to assess whether professional bodies are to be held as associations of undertakings.
The composition criterion is meant to make clear whether the professional body truly represents its members or, on the other hand, undergoes an external interference of public powers as regards the decision-making process, while the legal framework focuses on the pursuit by the organization of either the professional interest, typical of an association of undertakings, or the general interest of a given economic sector, which is proper of a body of independent experts entrusted with a general public task ( [5] ).
In COAPI, the Commission applied the Court’s test, and found industrial property agents in Spain to be undertakings, regulated by public law ( [6] ).
In Wouters, doubts were raised by the wording of the Advocatenwet, according to which the Netherlands Bar is required to exercise its regulatory powers in the public interest, ensuring that individuals are granted access to the law and to judicial remedies; on the other hand, the same piece of legislation established that the Association is entrusted to defend and pursue the interests of its members.
Advocate General Léger’s analysis on this point is very interesting, though it was only partly considered by the Court.
The AG’s Opinion  was clearly influenced by the ruling in CNSD, as he sought to apply the criteria of composition and legal framework in the assessment of the applicability of art. 81(1) to professional associations.
The Netherlands Bar and some of the intervening parties ( [7] ) argued that the attribution of public interest regulatory powers under national law is sufficient to exclude the existence of an association of undertakings, referring to the judgments in BNIC, Reiff and Gebhard ( [8] ).
According to the AG’s Opinion, this argument is immaterial. Firstly, the Bar is only composed of elected representatives of its members and the power conferred to the Government to annul regulations adopted by the Association when they are contrary to the public interest is not sufficient to prove either the legal duty to review regulations nor the effective exercise of this power by the State.
Secondly, the power of adopting regulatory and disciplinary powers conferred by statute is not in itself a sign of the exercise of public law functions, and has not prevented the Court from finding that the governing bodies of customs agents and medical specialists are associations of undertakings respectively in CNSD and in the later  Pavlov case ( [9] ).
Furthermore, as regards the legal framework criterion, the requirement established in the Advocatenwet that the Bar shall take into account “the interest of the proper practice of the profession” when laying down a regulation is vague and insufficiently precise to effectively bind the Association ( [10] ).
Finally, the Advocate General rejected a functional approach to the concept of association of undertakings, as proposed by some interveners.
 According to this argument, a distinction should be drawn between the pursuit of the exclusive interest of the members of the Bar, a practice that falls within the art. 81(1) definition, and the fulfilment of obligations arising from a conferral of general interest powers, which – as in the case of the 1993 Regulation – is liable to escape competition law as such ( [11] ).        
The Opinion underlined that the nature of the interest pursued by the measure cannot exclude the application of art. 81(1) ratione personae. If a body is composed, as the Bar is, exclusively of private economic operators, all its activities shall be analysed in the light of the Treaty rules on competition ( [12] ).
However, the Court seemed to be influenced by the argument on functional distinction, when it assessed the question of the applicability of the notion of an association of undertakings to the Bar “where it adopts a regulation such as the 1993 Regulation”, implying that it shall be established with regard to the specific activity under scrutiny ( [13] ).
The Court proceeded on a well-established path of case law, recalling the Hoefner principle and its complementary elements defined in Pavlov (the complex and technical nature of the services provided by an association cannot exclude its economic activity) and concluded that lawyers are undertakings ( [14] ).
When it came to evaluate whether the Bar is an association of undertakings, the ECJ quite unexpectedly went for a negative approach and analysed all possible reasons for the Bar to escape the art. 81(1) definition. It had to acknowledge that neither the entrustment of a solidarity task (Poucet and Pistre) nor the exercise of powers of a public authority (Sat Fluggesellschaft and Calì) are to be found in the present case ( [15] ).
The Court then considered an argument raised by the German Government, according to which if bodies entrusted by the State with regulatory powers were treated as associations of undertakings, this would frustrate the principle of institutional autonomy, each Member State having the right to decide, “within the framework of national sovereignty”, how to organize and delegate the exercise of powers and rights it possesses ( [16] ).
Thus it was argued by Germany that the regulations drafted by a public law-governed body such as the Bar are instruments of “mediate” administration by the State and not acts of an association representing private interests.
In the Court’s view, the application of the criteria first applied in CNSD and reshaped through the successive jurisprudence is not liable to “erode” the institutional autonomy that Member States enjoy as regards the organization of the public administration.
The States, in fact, are free to choose between two systems of organization. In the first case, they can entrust a professional association with regulatory powers, being careful to define the public-interest criteria and the essential principles to be respected in the drafting of regulations and maintaining a last-resort power to overrule, or at least interfere in the activity of the body. The measures adopted are then State measures and the application of competition law is excluded ( [17] ).
 In the second case, the State doesn’t play any part in the rule-making process and the activity of the association is attributable to it alone; the professional body is an association of undertakings and, insofar as art. 81(1) is applicable, must notify its decisions to the Commission.
Such a burden is not capable of “unduly paralys[ing] the regulatory activity of the professional associations […] since it is always open to the Commission inter alia to issue a block exemption pursuant to art. 85(3) [now art. 81(3)] of the Treaty” ( [18] ).
The outcome of the ECJ reasoning matched the Advocate General’s proposal. The Bar, when adopting the 1993 Regulation, acts as association of undertaking within the meaning of art. 81 EC.
 
Does the 1993 Regulation restrict competition?
 
The answer to this question is closely linked to the acknowledgment that the Bar is an association of undertakings. Once this is established, it remains to be seen  whether its decision (the Regulation) has the object or effect of restricting competition.
The rules laid down by a professional association are more likely to have an anticompetitive effect rather than an object, that is to result in a sometimes subtle prevention, distortion or restriction of competition as a (not necessarily pursued) direct or indirect consequence of their adoption ( [19] ).
The ECJ has confirmed in a number of judgments that where competition is appreciably restricted, professional regulations fall within the prohibition of art. 81(1) ( [20] ).
In Wouters, the Court concentrated on the effects produced on the professional markets concerned by the Regulation. In the absence of that rule, competition would be likely to develop, as MDPs between lawyers and accountants could improve quality and quantity of their services and bring additional advantages to customers through integrated services.
The ECJ found that the restriction of competition – consisting in a limitation of production and technical development within the meaning of art. 81(1)(b) – is appreciable, since it has direct effect on operators which have a major position on the Netherlands market for legal services, and is capable of affecting trade between Member States, since it extends to the whole of a Member State and has the effect of partitioning markets on a national basis ( [21] ).
 
3.4. Is art. 81(1) EC infringed? A new ‘reasonableness’ approach. 
 
“However, not every agreement between undertakings or any decision of association of undertakings which restricts the freedom of action of the parties or of one of them necessarily falls within the prohibition laid down in Article [81(1)] of the Treaty. For the purposes of the application of that provision to a particular case, account must […] be taken of its objectives […], qualifications, professional ethics, supervision and liability, in order to ensure that the ultimate consumers of legal services and the sound administration of justice are provided with the necessary guarantees in relation to integrity and experience […]”( [22] ).
From the above, it would seem that the ECJ took an approach based on the reasonableness of the MDP ban established in the Regulation.
According to a public interest justification, which the European Court of Justice recalled from the Reisebüro Broede judgment given in the context of the freedom of services under art. 49 EC, the anticompetitive effects of the ban are inherent in the pursuit of the mentioned objectives, since the Regulation is aimed at laying down ethical rules of conduct for the members of the profession.
Lawyers, according to the ECJ, have the “duty to act for clients in complete independence and in their sole interest […], to avoid all risk of conflict of interests and the duty to observe strict professional secrecy”; these requirements don’t bind accountants in the same way, and this can produce a degree of incompatibility between the activities pursued by these two professional categories ( [23] ).
It seems that the “reasonableness” standard applied by the ECJ is not based on an absolute, objective assessment of what might be considered necessary to ensure the proper practice of the profession, but rather on what the professional body itself could believe to be reasonable.
 To an extent, the European Court of Justice accepts the AG’s argument that “each professional rule must be examined on a case-by-case basis, depending on its subject matter, context and purpose”( [24] ).
This far-reaching affirmation confirms the view of AG Léger stressing the public service importance of the lawyers in the administration of justice.
However, the Advocate General warned that the introduction of a public interest justification amounts to a misconstruction of the ratio legis of the competition rules, “liable to negate a great part of the effectiveness of art. [81(3)] and [86(2)] of the Treaty” ( [25] ).
The Advocate General rejected the arguments of some interveners who, relying on the IPR decision ( [26] ), supported the application of a rule of reason based on public interest.
Art. 81(3) is suitable to be applied to cases like Wouters – and this seems to be confirmed by the already mentioned para. 68-70 of the judgment – but it is up to the Commission to grant an individual exemption. In IPR, it decided to avoid the question of previous notifications of professional rules which are liable to have anticompetitive effects by applying a rule of reason-type approach which in the substance had the result of an ex post exemption ( [27] ). 
The “public service” importance of lawyers has another significance. The Opinion proposed to assess lawyers as undertakings entrusted with the operation of services of general economic interest within the meaning of art. 86(2) of the Treaty ( [28] ).
 The Court didn’t follow this advice nor did it address the question of the applicability of art. 86(2) to lawyers. This approach remains open to debate ( [29] ). 
 
Intertwining internal market and competition law.
 
Many points of view have been proposed in order to clarify the Court’s unexpected move in Wouters.
The Advocate General, at paragraphs 113 and 155 of the Opinion, argued in favour of an application of art. 86(2). By assessing lawyers as undertakings entrusted with a public task the problem is cut at the root and the anti-competitiveness of the 1993 Regulation justified, without  the need to deny the entrepreneurial nature of lawyers or to acknowledge a debatable overall pro-competitive effect ( [30] ).
AG Léger secondarily pointed out that cases such as Wouters should be dealt with under art. 81(3), whereas he underlines that there are no infringements of competition law which are per se incapable of exemption. The wording of art. 81(3) makes it possible to achieve a rule of reason-style assessment that takes into account the particular nature of certain economic sectors, social concerns and “to a certain extent, considerations connected with the pursuit of the public interest” ( [31] ).
One piece of advice for the present case (apply art. 86(2) to legal profession) and one for the future ones (professional decisions shall be matter for the Commission under an art. 81(3) assessment). Surprisingly the Court didn’t follow this path and, whether or not the result is appreciated, it will take time for its implications to be fully understood.
As regards the academic writing on Wouters, commentators have seen either the existence of a pure rule of reason-based approach or the representation of the well known ancillary restraints doctrine ( [32] ).
In my opinion, the present case doesn’t provide an application of the rule of reason, or at least not in the terms of the procedure under U.S. law.
Departing from one of the core requirements of the American-style method, the ECJ didn’t carry on a general pro-competitive evaluation of the 1993 Regulation, nor had the parties intended to rely on this point, which was raised only by one intervener (the Luxembourg Government) who sought to highlight the beneficial effects of the ban as regards the risks of a collective dominance by a small number of larger operators on the market, which means a very limited part of the question ( [33] ).
The American and European antitrust systems differ significantly. EC competition law is based on the possibility of individual exemptions granted by the Commission under art. 81(3), whereas in U.S. law the purpose of the rule of reason is to by-pass the absence of a similar rule.
Because of this exemption process, under EC law there are no per se infringements of art. 81(1) which cannot be exempted under art. 81(3), as the CFI stated in Matra Hachette ( [34] ).
On the other hand, the ancillary restraints doctrine fails to explain why non-economic external factors, such as the proper functioning of the legal profession, are capable of justifying competition constraints, whereas the constant case law has so far only accepted contractual restrictions within a certain agreement ( [35] ).
 Similarly, a U.S. rule of reason approach fails to prove that, given the relevant market, pro-competitive effects of the MDP ban exceed anticompetitive effects within it. The benefits of the ban are produced to a different extent, to preserve the value of ethics and coherence of the legal profession.
In this regard, the reference  by the Court to the Reisebüro Broede case can be seen as the introduction of a new broad public interest justification, which applies transversally to competition and free movement rules.
There have been many trends in the ECJ case law of comprehensive considerations where principles developed in one ambit have been applied to the other ( [36] ).
Faced with the question of whether the 1993 Regulation constitutes a restriction to the right of establishment and to the freedom to provide services, the Court repeated the same justification stated few paragraphs before, when dealing with the restriction of competition.
The judges didn’t even repeat the justification formula but simply recalled the number of the  previous paragraphs where the reasonableness theory was applied to restriction of competition. This could be taken that the Court didn’t feel the necessity to repeat an acknowledged principle and may lead one to believe this is a definitive statement.
When considering the effect of the MDP ban on the provision of services and establishment, the Court admitted that those freedoms are likely to be restricted, exactly as it previously admitted that the ban is liable of restricting competition.
Once the restriction is found, the question of whether it can be justified comes next, reintroducing the same argument approach used in the paragraphs on competition: at this point, the cryptic answer of the ECJ on the free movement issue may require the reader to remember some passages of the reasoning on the anti-competitiveness of MDPs.
It is possible that the Court believed more explanations to be unnecessary given the quite long interpretation on the competition question. It is also possible it assessed that a second answer, although similar or even identical to the first one, could imply that competition and free movement matters shall still need to be dealt with individually, although they involve to the same principles.
The Wouters outcome has been hailed as the creation of a new European-style rule of reason, a “universal” justification instrument that the Court can apply to allow national legislations restricting free movement rules and private anticompetitive agreements when they both pursue public and general interests which are relevant at European level ( [37] ).
The consequences of this new definition may bring to an end the debate on the existence of a distinction between grounds for justification established by the Treaty and mandatory requirements derived under the Cassis de Dijon doctrine.
Could it now be correct to rely on this general justification ground to dismiss the problem and accept the “access to market” test proposed by Advocate General Jacobs in the Leclerc-Siplec case ( [38] )?
On this point, it is first of all evident that the Court reaffirmed in Wouters its competence to interpret the Treaty, which includes the power to elaborate grounds for justification according to the very fundamental principles of EC law: workable competition, single market imperative and public policy restraints.
Both Cassis de Dijon and Wouters are meant to guide and reunite the line of reasoning of the ECJ’s previous case law, and in both circumstances the European Court of Justice needed to limit the risks of far-fetched interpretations of its decision, capable of deeply undermining the rights of the Member States with regard to public policy.
The approach represents the difference between the two judgments: in Cassis the Court chose a mandatory categorization of justificatory grounds, while in Wouters it adopted a general statement, being probably aware that a list of justifications might not only be incomplete, but also expose the Court’s reasoning to dangerous a contrario arguments.
It is here submitted that the ECJ acknowledged the “access to market” test in its very essence, that is the necessity of a valid reason in order to restrict free movement and competition within the internal market.
The convergence point between the access to market and the reasonableness theories arises from the fact that both of them stem from the general principle of proportionality.
Consequently the question is, on the one hand, whether the national rule impeding the market access is proportionate to the justifiable aim pursued according to the fundamental rules of the Treaty and the case law; on the other, whether the restriction to competition is both justified under one of the public interest grounds and proportionate within the overall situation of the market concerned. 
It is thus apparent that a justification based upon ground of public policy is not able, by itself, to impede either free movement or competition without an assessment of the necessity and proportionality of the restrictions it entails.
When thinking about admissible constraints to competition, it ought to be remembered that the case-by-case approach of the European Courts involves the consideration of both justifications upon grounds of reasonableness and policy justifications as they result in the given situation.
Given this necessity to broaden the spectrum of the elements considered in the analysis, an artificial distinction between competition and internal market issues cannot be accepted anymore.
Until now, the European Courts have maintained a separation between the two spheres, according to the different position they enjoy under the EC Treaty.
 The new converging trend seems to be justified by the full establishment of the internal market – where the creative contribution of the Court ceases to be as necessary as before – and by the increasing need for coordination between different and sometimes conflicting Community policies in the next phase of market integration.
It is therefore up to the Community institutions to acknowledge the flexibility of the Treaty rules and of the case law when and where they are required to apply them.
In its White Paper on Modernization ( [39] ) the Commission rejected the notion that a pure U.S. style rule of reason approach could be a solution to its enforcement and procedure problems as identified, for example, by the CFI in European Night Services ( [40] ).
 Nevertheless, this position should not be read in the sense that the Commission won’t adopt a positive assessment of justifiable constraints, where these enable the parties to successfully achieve legitimate objectives.
For example in the ENIC press release ( [41] ) the Commission has reshaped the reasoning in Wouters to the sport integrity justification – originally elaborated in Bosman for free movement restrictions – confirming that the intertwining of principles between competition and free movement ambits is now an accepted practice. However to what extent this is the case, it is, as yet, too early to say.
Furthermore, given the application of regulation 1/2003 establishing the competence of national competition authorities and courts to directly enforce art. 81 EC, it might be interesting to see to what extent a European-style rule of reason will be correctly applied by those national institutions according to Community-wide public policy grounds, rather than national-oriented general interests.
The final word will be for the European Court of Justice, which might have the opportunity in the near future to confirm the principle in Wouters to a more general extent, therefore definitively upholding and clarifying – primarily for guidance purposes – the intertwining of justification causes.
This would be by any means necessary for professional self-regulation. If the Court decides to go on dismantling any differences in justificatory arguments between the two sectors, professional associations would surely benefit from the legal certainty deriving from the knowledge of the public policy restrictions allowed under EC law, while members of the professions and final consumers would be better aware of their legal position with regard to regulatory activities.
 
The aftermath of Wouters: a lesson for the Commission?
 
Despite the widespread necessity of judicial clarification, it appears, reading trough the lines of Wouters, that the Court’s interpretation is primarily motivated by the desire not to come across similar questions in the future.
It is a message to the Commission to promptly tackle the issue of the limits of professional regulation and undertake a global assessment of its impact on competition.
 Once the ECJ has set the discrimen (professional rules shall be allowed only insofar as necessary to protect the proper functioning of the professions), the Commission shall verify that the professional associations do not lay down rules restricting competition beyond that limit.
The call hasn’t remained unanswered. The Commission requested a study from the Vienna Institute of Advanced Studies on the economic impact of regulation in the field of liberal professions ( [42] ), which was delivered in January 2003.
The study compared the rules affecting notaries, lawyers, accountants, pharmacists, architects and engineers in the fifteen Member States and came to the conclusion that, given the very different level of regulation across the EU, in countries with lighter regulation consumers are no less satisfied with the quality of the services received, and there is a spur to overall wealth creation because of the higher number of professionals competing on the market.
On the basis of the encouraging results of the study, the Commission launched in March an “invitation to comment on the regulation in liberal professions” ( [43] ), consisting of a questionnaire addressed to professionals in all Member States which aims at collecting an insider perception of the issue.
The third step of the Commission approach to professional regulation took place in October 2003 by way of a public consultation with consumers’ representatives, members of the liberal professions and businesses which concluded the research and information phase ( [44] ).
Successively on 9 February 2004, the Commission has presented its final report on competition in professional services, with an aim to summarising the findings of the research and consultation proceedings and to providing guidance to the interested regulatory subjects as to the next steps towards modernisation in liberal professions ( [45] ).
Whilst pointing out that “the best way to achieve overall change would be by voluntary action of those responsible for setting the existing restrictions” primarily by means of reviewing the existent regulation through a proportionality-based approach, the Commission made clear that “a simple elimination of anti-competitive mechanisms may not be enough to bring about more competition to this sector” and therefore that “both regulatory authorities and professional bodies should explore the need to use pro-competitive accompanying mechanisms which increase transparency and enhance consumer empowerment”. Such mechanisms include active monitoring by consumer associations, collection and publication of survey-based historical data or public announcements of the abolition of tariffs.
 The Commission concluded by stressing that it will keep monitoring the regulatory progress, in particular, as from 1 May 2004, trough co-ordination in the European Competition  Network. Should the above proactive efforts result in failure, it does not exclude to resort to infringement procedures at a later stage.
What lesson shall the European Commission, the national competition authorities and the regulatory and professional bodies take from the Wouters judgment when asked to assess the anti-competitiveness of professional regulation?
Speaking before the German Bar Association, Commissioner Monti recognized that the distinction between rules which are covered by competition law and rules which are not “has to be decided on a case by case basis or more to the point, rule by rule, profession by profession” ( [46] ).
It is evident that in many States professional associations set unnecessary burdens, therefore breaching the Wouters principle. It is now for the concerned bodies to take an appropriate, measured action.
 
 
 

·            Hammonds Rossotto, Milan; LL.M., King’s College London. The author wishes to thank Dr. Andrea Biondi and Louisa Petais for their support and advice.
 
[1] Competition in Professional Services: New Light and New Challenges, Speech by Commissioner Monti to the Bundesanwaltskammer, Berlin 21 March 2003. Available at http://europa.eu.int/comm/competition/speeches/text/sp2003_007_en.pdf.
[2] Wouters and o. v. Algemene Raad van de Nederlandse Orde van Advocaten, case C-309/99, judgment of 19 February 2002.
[3] Hoefner and Elser, case C-41/90, [1991] ECR I-1979, para. 21.
[4] Commission v. Italy, C-35/96, [1998] ECR I-3851, para. 37.
[5] See the reconstruction offered by AG Léger in Wouters, para. 66 of the Opinion.
[6] Commission Decision of 30 January 1995, [1995] OJ L 122/37.
[7] The following Member States have intervened in the proceeding: Austria, Germany, Luxembourg, Denmark, Portugal,  and Liechtenstein (the latter being a member of the EFTA).
[8] As regards the pursuit of the general interest, reference is made by contrast to the BNIC case, where the Court held that the attribution of public interest powers cannot prevent the application of art. 81(1) to an association entrusted with the defence of particular private interests. The Members of the Bar are first of all elected to the pursuit of general interests, and, according to Reiff, do not take into account  the professional interest when exercising a public function; BNIC v. Clair, cases 123/83, [1985] ECR 391; Reiff, case C-185/91, [1993] I-5038. The proper functioning of the legal profession which was considered in Gebhard as liable to justify certain legal, administrative and regulatory provisions was also put forward by the German Government. Gebhard, case C-55/94, [1995] ECR, I-4165.
[9] Pavlov, cases C-180-184/98, [2001] 4 CMLR 30. See Wouters, Opinion, para. 72 and 78.
[10] Ibid., para. 74.