PRESS RELEASE No 15/02
19 February 2002
Judgment in Case C-309/99
J.C.J. Wouters, J.W. Savelbergh, Price Waterhouse Belastingadviseurs
BV v Algemene Raad van de Nederlandse Orde van Advocaten
THE NETHERLANDS RULES PROHIBITING MULTI-DISCIPLINARY PARTNERSHIPS BETWEEN
MEMBERS OF THE BAR AND ACCOUNTANTS ARE COMPATIBLE WITH THE TREATY
The Supervisory Board of the Bar refused Mr Wouters and Mr Savelbergh, lawyers
enrolled at the Amsterdam and Rotterdam Bars, authorisation to enter into partnership
with accountancy firms Arthur Andersen and Price Waterhouse, both established
in the Netherlands.
The General Council of the Netherlands Bar based its rejection of their appeal
on a Netherlands regulation of 1993 ("Samenwerkingsverordening", regulation
on joint professional activity), adopted by the Bar itself, concerning partnerships
of members of the Bar with other professional categories. The Regulation allows
partnership with certain professions (notaries, tax consultants and patent agents)
subject to conditions but, in order to guarantee the independence of members
of the Bar, it does not authorise them to enter into integrated partnership
with accountants.
The two lawyers and the firms concerned brought administrative appeals before
the Netherlands Bar and, when those were rejected, appealed to the competent
Netherlands courts.
The Raad van State, the court of last instance, has referred questions to
the Court of Justice of the European Communities relating to the application
of Community competition law to the professions.
First, the Court considers that the Netherlands Bar, as the governing body
of a profession adopting a regulation which is binding on all its members, must
be regarded as an association of undertakings for the purposes of Community
law.
According to the Court, since that professional body is composed solely of members of the Bar and since it is not required by statute to take its decisions in the public interest, it constitutes an association of undertakings where it adopts rules prohibiting partnerships with other professions.
The prohibition of such multi-disciplinary partnerships produces effects
restrictive of competition on the Netherlands market in legal services.
Furthermore, it means clients cannot avail themselves of one-stop-shop services,
that is to say, a wide range of services offered by a single firm.
Moreover, the Netherlands rules affect trade between Member States
in that they apply to visiting lawyers enrolled at the Bar in another Member
State, economic and commercial law more and more frequently regulates transnational
transactions and, lastly, the firms of accountants looking for lawyers as partners
are generally international groups present in several Member States.
Nevertheless, having regard to the way in which the legal profession is envisaged
in the Netherlands, where the Netherlands Bar is entrusted by the Advocatenwet
(the law on the Bar) with responsibility for adopting regulations designed to
ensure the proper practice of the legal profession, the essential rules adopted
for that purpose are considered to be, in particular, the duty to act for clients
in complete independence and in their sole interest, the duty to avoid all risk
of a conflict of interests and the duty to observe strict professional secrecy.
In this connection, there may be a degree of incompatibility between the
'advisory' activities carried out by a lawyer and the 'supervisory' activities
carried out by an accountant. Accountants, who perform a task of certification
of accounts, are not, in the Netherlands, subject to a duty of secrecy comparable
to that of members of the Bar.
That being so, it was reasonable for the Netherlands rules to impose
binding measures, despite the effects entailed which are restrictive of competition,
because those measures are necessary for the proper practice of the legal
profession.
Furthermore, even if multi-disciplinary partnerships of lawyers and accountants
are allowed in some Member States, the Netherlands Bar is entitled to consider
that the objectives pursued by the Regulation cannot, having regard in particular
to the legal regimes by which members of the Bar and accountants are respectively
governed in the Netherlands, be attained by less restrictive means.
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Languages available: all. For the full text of the judgment please see our website www.curia.eu.int
at approximately 3 pm today For further information please contact Ms Fionnuala Connolly The hearing can be viewed on "Europe by Satellite" |