The Board of the Association rejected their requests in accordance with a 1993 regulation on cooperation with other professional categories. While that regulation permits cooperation with professions such as notaries, tax consultants and patent agents, it does not authorise lawyers to set up integrated offices with accountants, in order to guarantee the independence of lawyers.

The two lawyers and the firms concerned brought administrative appeals before the Council of the Bar Association and then, on the dismissal of their appeals, they brought proceedings before the competent Netherlands courts.

The Raad van State, the final court of appeal, has referred to the Court of Justice of the European Communities the question of the application of Community competition law to the professions.

The Advocate General, whose views are not binding on the Court, gives his Opinion today. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the case assigned to them.

Mr Léger believes that the Netherlands association of lawyers, as a professional association, is an association of undertakings within the meaning of the Treaty.

Given that the association of Netherlands lawyers is composed exclusively of representatives of the profession and that it is not required by statute to take its decisions in the public interest, it is, according to the Advocate General, an association of undertakings in respect of all its activities and in particular where it adopts rules prohibiting professional collaboration.

According to Mr Léger, that prohibition of multi-disciplinary partnerships produces effects restrictive of competition. He concludes that application of the regulation leads to restriction of competition on the Netherlands market for legal services. It deprives consumers of the opportunity of using integrated services, that is to say, a broad spectrum of services offered by one single firm.

That regulation, applying to all lawyers, and having regard to the position of the two firms concerned on the Netherlands market, has appreciable negative effects on competition, in the Advocate General's view. It may also affect trade between Member States in so far as, inter alia, firms established in other Member States are affected.

The Advocate General believes, however, that lawyers are entrusted with the operation of services of general economic interest. Performing duties which are essential in a State governed by the rule of law (defence and representation of individuals), lawyers are given particular tasks by act of the public powers in the Netherlands.

According to Mr Léger, application of the competition rules to authorise multi-disciplinary partnerships would compromise the obligations which are peculiar to the legal profession, namely independence, respect for professional secrecy and the need to avoid conflicts of interest. In the Advocate General's view, there is a certain incompatibility between those advisory activities and the supervisory activities of an accountant. To his mind, the very essence of the legal profession may preclude the establishment of a community of financial interests with members of the professional category of accountants.

In those circumstances, the restriction of competition caused by the Netherlands regulation seems to him to be lawful, especially as it does not forbid lawyers and accountants separately to offer their services to clients established in other Member States. It is, to his mind, the measure least damaging to competition (other forms of cooperation between the two professions remain possible).

The Advocate General, conscious of the need to lay down criteria which will make it possible to strike a balance between the need to recognise a certain power of self-regulation for the professions and the need to avoid the risks of anti-competitive conduct inherent in the granting of such powers, considers that a Member State may confer on a professional association of lawyers the power to adopt binding measures if two conditions are satisfied:

.    the public authorities must reserve the power to determine, directly or indirectly, the content of the essential rules of the profession;

.    members of the profession must be able to seek legal redress before the courts of general jurisdiction.

He considers that it is for the national court to determine whether those two conditions are satisfied.

N.B. Today Advocate General Léger is also giving his Opinion in Case C-35/99 (criminal proceedings against Manuelle Arduino)

        

Unofficial document for media use only; not binding on the Court of Justice. Available in Dutch, English, French, German, Italian and Spanish. For the full text of the Opinion, please consult our Internet page www.curia.eu.int  at approximately 15.00 hrs today. For further information please contact Fionnuala Connolly: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731