C-309/99

C — The Samenwerkingsverordening of 1993 I-1585

II — Facts and procedure I-1586

III — The questions referred I -1589

IV — The subject-matter of the questions I -1591

V — Article 85(1) of the Treaty I-1592

A — The definition of an undertaking I -1593

E — Conclusion I-1618

VI — Article 86 of the Treaty I-1618

VII— Article 90(2) of the Treaty I-1623

A — The conditions for the application of Article 90(2) of the Treaty I-1623

B — The factual circumstances of the dispute in the main proceedings I-1627

1 — Original language: French.

1. This reference for a preliminary ruling 3. This case has much in common with two raises the difficult question of the appli- other references for a preliminary ruling cation of Community competition law to referred by the Pretore di Pinerolo (Magis- the professions. 2 trate, Pinero) (Italy) in Case C-35/99 Arduino and by the Giudice di Pace di Genova (Italy) in Case C-221/99 Conte. Those Italian courts are called upon to determine whether the professional tariff scales for services provided by lawyers and architects in their country are compatible 2. A dispute has been brought before the with the Community rules on competition. Nederlandse Raad van State (Netherlands Council of State) concerning the legality of a regulation adopted by the Netherlands Bar Association. The regulation in issue prohibits lawyers practising in the Nether- lands from entering into multi-disciplinary partnerships with members of the profes- sional category of accountants. It is for the Court to decide whether the Treaty provi- sions on competition are applicable and, if necessary, whether they preclude such a prohibition of cooperation. 4. Although the three cases raise the same issues, the differences distinguishing their 2 — This topic is the subject of learned debate. See, in particular, C. Ehlermann, 'Concurrence et professions libérales: antag- legal and factual backgrounds lead me to onisme ou compatibilité?' in Revue du marché commun et present a different Opinion. 3 This Opinion de l'Union européenne. 1993, p. 136; L. Misson and F. Baert, 'Les barèmes d'honoraires des avocats sont-ils relates to the request from the Nederlandse illégaux?' in journal des tribunaux. 1995, p. 485; L. Idot, 'Quelques réflexions sur l'application du droit communaut- Raad van State in Case C-309/99 Wouters aire de la concurrence aux ordres professionnels', in journal des tribunaux de droit europeen. April 1997, p. 73; and Others. H. Nyssens, 'Concurrence et ordres professionnels: les trompettes de Jéricho sonnent-elles?' in Revue de droit commercial belge. 1999, p. 475; and A.-M. Van den Bosselle, 'Voor economische vrijheid en mededingingsrecht: 3 — See my Opinion presented today in Case C-35/99 Arduino hoe vrij is de plichtenleer in het beperken van de econ- 12002] ECR I-1529, I-1522 and my Opinion presented on omische keuzevrijheid van vrije beroepers?' in Tudschrift 12 July 2001 in Case C-221/99 Coure [2001] ECR I-9359, voor Privaatrecht, 2000, p. 13. I-9361.

9. According to Article 26 of the Advoca- tenwet,

(3) Supervision of the governing bodies shall be governed by statute. Their decisions may be annulled only where they 'the General Council and the Supervisory are contrary to law or to public interest.' Boards shall ensure the proper practice of

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the profession and have the power to adopt 'decisions of the Committee of Represen- any measures which may contribute to that tatives, the General Council or other bodies end. They shall defend the rights and of the Association may be suspended or interests of lawyers as such, ensure that annulled by royal decree in so far as they the obligations of the latter are fulfilled and are contrary to law or the public interest.' discharge the duties imposed on them by regulation.'

10. Article 28(1) of the Advocatenwet pro- vides: C — The Samenwerkingsverordening of 1993

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OPINION OF MR LÉGER — CASE C-309/99

on certain conditions, with lawyers regis- Wouters, Mr Savelbergh, the partnership tered in other States. Arthur Andersen & Co. Belastingadviseurs (tax consultants), the partnership Arthur Andersen & Co. Accountants and the private company Price Waterhouse Belast- ingadviseurs BV (tax consultants). 16. By contrast, where lawyers wish to enter into partnership with members of a different professional category, that other category must form the subject of auth- orisation by the General Council of the Bar Association. 20. Mr Wouters was registered as a lawyer at the Amsterdam Bar. He became a partner in Arthur Andersen & Co. Belast- ingadviseurs on 1 January 1991.

27. The five applicants then appealed to the Arrondissementsrechtbank (District Court, 'the Rechtbank'), Amsterdam. They Furthermore, the Supervisory Board con- claimed, inter alia, that the decisions of the sidered that Mr Wouters could not, with- General Council of the Association were out contravening Article 8 of the Regu- incompatible with the Treaty provisions on lation, enter into a partnership the collec- competition, right of establishment and tive name of which included the name of freedom to provide services. the natural person Arthur Andersen.

28. On 7 February 1997 the Rechtbank 23. Mr Savelbergh is registered at the Amsterdam Bar. declared inadmissible the appeals brought by Arthur Andersen & Co. Belastingadvi- seurs and Arthur Andersen & Co. Accoun- tants. Moreover, it dismissed as unfounded the arguments put forward by Mr Wouters, Mr Savelbergh and Price Waterhouse 24. In spring 1995 he informed the Super- Belastingadviseurs BV. visory Board for that district that he intended to enter into a multi-disciplinary partnership with the company Price Water- house Belastingadviseurs BV, a branch of the international body Price Waterhouse, which includes not only tax consultants, 29. The Rechtbank considered that the but also accountants. Treaty provisions on competition did not apply to the circumstances of the case.

25. On 5 July 1995 the Amsterdam Super- visory Board declared the partnership con- It held that the Association was a body templated by Mr Savelbergh to be contrary governed by public law, established by to Article 4 of the Regulation. statute in order to further a public interest.

For that purpose it makes use of the According to the Rechtbank, there is no regulatory power conferred on it by cross-border factor in the case in point, so Article 28 of the Advocatenwet. The that those provisions are not applicable. In Association is required to guarantee, in any event, the prohibition on partnerships the public interest, the independence and is justified by overriding reasons relating to 'partiality' 5 of lawyers providing legal the public interest and is not dispropor- assistance. In the Rechtbank's view, the tionately restrictive. Furthermore, it con- Association is not, therefore, an association sidered that the Regulation is not incom- of undertakings within the meaning of patible with the right of establishment. In Article 85 of the EC Treaty (now the absence of Community provisions in Article 81 EC). that field, the Member States remain free to make the exercise of the legal profession on their territory subject to rules intended to guarantee the independence and partiality of lawyers providing legal assistance. With regard to the plea based on Article 86 of the EC Treaty (now Article 82 EC), the Rechtbank considered that the Association could be regarded neither as an undertak- ing nor as an association of undertakings. Furthermore, Article 28 of the Advocaten- 31. The appellants in the main proceedings wet does not transfer any powers to private appealed against the decision of the Recht- operators in such a manner as to undermine bank to the Raad van State. the effectiveness of Articles 85 and 86 of the Treaty. In consequence, that provision is not incompatible with the second para- graph of Article 5 of the EC Treaty (now the second paragraph of Article 10 EC), read in conjunction with Article 3(g) of the 32. The respondent in the proceedings is EC Treaty (now, after amendment, the General Council of the Association. It is Article 3(1)(g) EC) and Articles 85 and 86 supported in its pleadings by the Raad van of the Treaty. de Balies van de Europese Gemeenschap (the Council of the Bars and Law Societies of the European Community, 'the CCBE'), an association established under Belgian law which has been granted leave to inter- 30. Nor did the Rechtbank follow the vene in the main proceedings. appellants' argument that the Regulation is incompatible with the right of establish- ment (Article 52 of the EC Treaty (now, after amendment, Article 43 EC)) and the freedom to provide services (Article 59 of the EC Treaty (now, after amendment, 33. By judgment given on 10 August 1999, Article 49 EC)). the Raad van State confirmed that the appeals brought by Arthur Andersen & Co. Belastingadviseurs and Arthur Andersen & 5 — 'Partijdigheid': this term, which is apparently peculiar to the Co. Accountants were inadmissible. As Netherlands legal system, seems to refer to partisan defence of the client's interests. regards the other appeals, it considered

'1 (a) Is the term "association of under- (c) If the answer to Question 1(b) is takings" in Article 85(1) of the EC that Community law is relevant, Treaty (now Article 81(1) EC) to can the adoption under a statutory be interpreted as meaning that power by an institution such as the there is such an association only if [Netherlands] Bar Association of and in so far as it acts in the universally binding rules, designed undertakings' interest, so that in to safeguard the independence and applying that provision a distinc- loyalty to the client of lawyers tion must be made between activ- providing legal assistance, on the ities of the association carried out formation of multi-disciplinary in the public interest and other partnerships between lawyers and activities, or is the mere fact that members of other professions be an association can also act in the regarded for the purposes of Com- undertakings' interest sufficient for munity law as pursuing the public it to be regarded as an association interest? of undertakings within the mean- ing of the provision in respect of all its actions?

2. If the answers to the first question indicate that a rule such as the Regu- Is the fact that the universally lation ... is to be regarded as a decision binding rules adopted by the rel- of an association of undertakings

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within the meaning of Article 85(1) of an institution such as the Bar Associ- the EC Treaty (now Article 81(1) EC) ation enjoys a dominant position, does is such a decision, in so far as it adopts such an institution abuse that position universally binding rules, designed to if it regulates the relationships of the safeguard the independence and loyalty lawyers affiliated to it with others on to the client of lawyers providing legal the market in legal services in a manner assistance, on the formation of multi- which restricts competition? disciplinary partnerships such as the one in question to be regarded as having as its object or effect the restriction of competition within the common market and in that respect affecting trade between the Member States?

7. Are both the Treaty provisions on the right of establishment and those on the IV — The subject-matter of the questions freedom to provide services applicable to a prohibition on cooperation between lawyers and accountants such as that in question, or is the EC Treaty 35. The order for reference made by the to be interpreted as meaning that such Raad van State raises five groups of ques- a prohibition must comply, depending tions. for example on the way in which those concerned actually wish to model their cooperation, with either the provisions on the right of establishment or with those relating to the freedom to provide services? 36. The first group of questions concerns the interpretation of Article 85(1) of the Treaty. These questions seek to determine whether a professional association of law- yers, such as the Association, infringes that 8. Does a prohibition on multi-disciplin- provision where it adopts a binding provi- ary partnerships including lawyers and sion prohibiting lawyers practising in the accountants such as the one in question territory of the Member State concerned constitute a restriction of the right of from entering into multi-disciplinary part- establishment or the freedom to pro- nerships with members of the professional vide services, or both? category of accountants.6

9. If it follows from the answer to the 37. The second group of questions essen- previous question that one or both of tially seeks to ascertain whether a profes- the abovementioned restrictions exists, sional association of lawyers, when adopt- is the restriction in question justified on ing a provision entailing such a prohibition the ground that it constitutes merely a on partnership, abuses its dominant pos- "selling arrangement" within the ition within the common market or in a meaning of Keck and Mithouard and therefore there is no discrimination, or on the ground that it satisfies the 6 — Question 1(a), (b) and (c), and Question 2.

38. The third group of questions arises if the contested provision is to be regarded as a restriction on competition or an abuse of a dominant position. In that case, it is a matter of ascertaining whether, on a proper construction of Article 90(2) of the Treaty, V — Article 85(1) of the Treaty application of the Community rules on competition to a professional association of lawyers which adopts such a measure is liable to frustrate the performance of the 41. Article 85(1) of the Treaty prohibits particular task assigned to it by the public 'all agreements between undertakings, authorities.8 decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market'. 39. The fourth group of questions concerns Article 5 in conjunction with Articles 85 and 86 of the Treaty. It seeks to ascertain whether a Member State infringes those provisions where it confers on a profes- 42. The appellants in the main proceedings sional association of lawyers the power to consider that, in the circumstances of this adopt binding measures which determine case, the conditions for application of that whether it is possible for lawyers practising provision have been satisfied. The argu- in its territory to enter into multi-disciplin- ments they put forward are as follows. ary partnership with accountants, when the Member State concerned does not reserve the right to substitute its own decisions for the measures adopted by the association.9 First, they argue that the Association is an 'association of undertakings'. Like any other professional body, it ensures the defence of the collective and individual interests of its members. The fact that it 40. Last, the fifth group of questions relates may act in the public interest or be granted to the issue of whether it is contrary to the regulatory powers is immaterial in this connection. 7 — Questions 3 and 4. 8 — Question 5. 9 — Question 6. 10 — Questions 7, 8 and 9.

43. The Association, the CCBE, the Com- mission and most of the Member State Governments which have intervened 1 1take 46. The national court pointed out that, up the opposite position. In their view, under Community competition law, the there is no breach of Article 85(1) of the definition of an undertaking includes 'any Treaty. The purpose of the prohibition on entity engaged in an economic activity, partnership laid down in the Regulation is regardless of its legal status and the way in to guarantee the independence and loyalty which it is financed'.13 It considered that to the client of the lawyer. It cannot, Netherlands lawyers fell within that defi- therefore, be in one way or another taken nition since they offered, in return for account of or prohibited by Article 85(1) of remuneration, services on a particular mar- the Treaty. ket, namely the market in the provision of legal services.

11 — Pursuant to the Protocol on the EC Statute of the Court of Justice, written observations were submitted by the Danish, German, French, Dutch, Portuguese and Swedish 12 — English translation, p. 10. Governments and the Government of Liechtenstein. The 13 —Judgment in Case C-41/90 Hofuer and Elser [19911 ECU Luxembourg Government submitted oral observations. I-1979, paragraph 21.

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50. The activities carried out by lawyers are traditionally centred on two essential First, lawyers may perform their services roles: the first, that of legal adviser (includ- for, and under the direction of, another ing consultation, negotiation and drawing person who pays them remuneration in up certain documents), and the second, that return. In that case, lawyers are employed of assisting and representing the client 'workers' and, as such, do not fall within

14 — See the order for reference (English translation, pp. 6 and 15 — Case C-35/96 Commission v Italy [1998] ECR I-3851, 10), the Association's observations (paragraph 27) and the paragraphs 36 to 38 ('CNSD'); and Joined Cases C-180/98 written observations of the Netherlands Government to C-184/98 Pavlov and Others [2000] ECR I-6451, (paragraph 19). paragraphs 73 to 77.

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the scope of Community competition 55. I shall therefore start from the principle law. 16 Second, it may happen that lawyers that lawyers registered in the Netherlands do not really work under their employer's do constitute undertakings for the purposes direction and that their remuneration is of Community competition law. directly linked to the latter's profits and losses. In that case, lawyers belong to the 'borderline categories' mentioned by Advo- cate General Jacobs in his Opinion in Pavlov.17

B — The definition of association of undertakings

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59. It explains that, according to the state- not it is classified as an association of ment of reasons for the Advocatenwet, the undertakings (Question 1(a)); Association is required to exercise its regulatory power in the public interest. It must ensure that individuals have access to the law and to justice. Nevertheless, pur- suant to Article 26 of the Advocatenwet, the Association is expressly charged with (3) Whether, if the Association's activities the defence of the rights and interests of are to be considered separately, Com- lawyers. The Association therefore exer- munity law establishes those cases in cises its regulatory power with a view to which a professional organisation acts furthering the collective and individual in the public interest and those in interests of its members. which it acts in its members' interest (Question 1(b));

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62. The concept of an association of under- 64. In the light of the importance of that takings does, however, play a particular case to the present dispute, its principal role in Article 85(1) of the Treaty. elements should be brought to mind.

65. In Italy the activity of customs agent is It seeks to prevent undertakings from being a profession. 22 The practice of that pro- able to evade the rules on competition on fession is dependent on possession of account simply of the form in which they approval and entry in a national register. coordinate their conduct on the market. To At departmental level, the activities of ensure that this principle is effective, customs agents are supervised by depart- Article 85(1) covers not only direct mental councils under the guidance of the methods of coordinating conduct between National Council of Customs Agents undertakings (agreements and concerted (CNSD). Pursuant to the Italian legislation, practices) but also institutionalised forms the CNSD was responsible inter alia for of cooperation, that is to say, situations in setting the tariffs for the professional ser- which economic operators act through a vices provided by customs agents. collective structure or a common body.

The Commission had decided to initiate 63. The Court has frequently been called proceedings against the Italian Republic for upon to give a ruling in cases concerning failure to fulfil obligations. It alleged that associations of a purely commercial nature. Italy had infringed Articles 5 and 85 of the CNSD is the first case in which the Court Treaty by forcing the CNSD to set a applied the concept of an association of compulsory tariff for all customs agents. undertakings to a professional associ- ation. 21

The Court pointed out that 'members of the CNSD can only be registered customs agents, since they are elected from among 69. In consequence, the CNSD was the members of the Departmental Councils regarded as an association of undertakings on which only customs agents sit'. 25 It also on the ground that: remarked that, following a legislative amendment introduced in 1992, 'the Direc- tor-General of Customs no longer acts as chairman of the CNSD'. 26 Last, it appeared that 'the Italian Minister for Finance, who is responsible for the super- 'the members of the CNSD cannot be vision of the professional organisation in characterised as independent experts... question, cannot intervene in the appoint- and... they are not required, under the law, ment of the members of the Departmental to set tariffs taking into account not only Councils and the CNSD'. 27 the interests of the undertakings or associ- ations of undertakings in the sector which has appointed them but also the general interest and the interests of undertakings in other sectors or users of the services in question'. 30 68. As regards the second criterion, the Court found that 'nothing in the national

23 — In particular, Case C-185/91 Reiff [1993] ECR I-5801; Case C-153/93 Delta Schiffahrts- und Speditionsgesells- 70. It follows from that judgment that a chaft [1994] ECR I-2517; Case C-96/94 Centro Servizi Spediporto [1995] ECR I-2883; and Joined Cases body will not be classified as an association C-140/94, C-141/94 and C-142/94 DIP and Others [1995] ECR I-3257. 24 — CNSD, paragraph 41. 25 — Ibid., paragraph 42. 28 — Ibid., paragraph 41. 26 — Ibid., paragraph 42. 29 — Ibid., paragraph 43. 27 — Ibid., paragraph 42. 30 — Ibid-, paragraph 44.

73. With regard to the second criterion, the 71. Those two criteria must be applied to observations presented by the parties dur- the Association. ing the written stage of the proceedings contained little information. At the hear- ing, I invited the representatives of the Association and of the Netherlands Gov- ernment to explain their arguments in 72. As regards composition, the Advoca- greater detail. I asked them whether, in tenwet provides that the Association and Netherlands law, there existed provisions, the district associations are to be governed binding in nature, which might require the by the General Council and the Supervisory Association to take into consideration pub- Boards respectively. 32 The members of the lic-interest criteria in the exercise of its Supervisory Boards are to be elected from regulatory powers. among the members of the district associ- ation concerned. 33 The members of the General Council are elected by a committee of representatives, 34 who are themselves elected at meetings of the various district On this point, the Netherlands Government a s s o c i a t i o n s . 35 The w o r d i n g of noted that, pursuant to Article 30 of the Article 24( 1 ) of the Advocatenwet confirms Advocatenwet, the Crown has the power to that only lawyers may be elected as annul regulations adopted by the Associ- members of the General Council, the com- ation where they are contrary to the public mittee of representatives and the supervis- interest. The Association, for its part, ory boards. observed that Articles 26 and 28 of the Advocatenwet require its governing bodies to exercise their powers 'in the interests of the proper practice of the profession'.

First, the Crown's power of annulment, sets of considerations, reflecting the con- however real it may be, is completely a cerns expressed by the national court in its matter of chance. As the appellants in the questions. Their arguments are as follows. main proceedings have stated, the fact that review of this kind exists does not mean that the Association is legally required to give positive expression to the public inter- est when exercising its regulatory powers. Second, the term 'the interests of the proper First, the Association carries on no econ- practice of the profession' is vague and omic activity. It is a body governed by does not, of itself, lay down any criteria. public law responsible for laying down The information supplied by the national rules of an ethical nature. court 37 demonstrates, furthermore, that that term may be used as a basis by the Association in the defence of the common interests of lawyers registered in the Netherlands. Second, the Association constitutes a 'sub- division' of the State and is thus possessed of public authority rights and powers. It has the power to adopt legal rules (regula- It must therefore be held that, when tory power), the power to judge (disciplin- exercising its regulatory powers, the ary power) and, generally, the power to Association is not bound, pursuant to supervise the conduct of its members. provisions of Netherlands law, to take into account 'the general interest and the inter- ests of undertakings in other sectors or users of the services in question'. 38

Third, the Association has a public-interest role linked to the administration of justice. That role is essential in a State governed by 75. In accordance with the Court's case- the rule of law. The Association, like the law, the Association must therefore be professional associations of lawyers in classified as an association of undertakings other Member States, is responsible for within the meaning of Article 85(1) of the ensuring that individuals have access to the Treaty. law and to justice, guaranteeing the integ- rity of lawyers, watching over the proper practice of the profession and maintaining public confidence in the profession.

Since judgment was given in BNIC, it has been settled case-law that 'the legal frame- work within which such agreements [be- Moreover, the fact that it possesses regula- tween undertakings] are made and such tory and disciplinary powers is immaterial. decisions [of associations of undertakings] That conclusion follows from CNSD and are taken and the classification given to Pavlov. that framework by the various national legal systems are irrelevant as far as the applicability of the Community rules on competition and in particular Article 85 of the Treaty are concerned'. 39 In Pavlov the Court classified as an associ- ation of undertakings a professional associ- ation of specialist doctors in the Nether- lands when that body, like the Association, possessed regulatory powers conferred on it Moreover, for an entity to be classified as by statute. 42 Similarly, the CNSD was an association of undertakings it is not considered to be an association of under- necessary that it should itself carry on any takings when it possessed disciplinary economic activity. 40 Article 85(1) of the powers pursuant to Italian legislation. That Treaty applies to associations in so far as 4 1 — C a s e 71/74 Frubo v Commission [1975] ECR 563, paragraph 30; Van Landewyck, paragraph 88, and IAZ, 39 — C a s e 123/83 B M C [1985] ECR 391, paragraph 17. See paragraph 20. also CNSD, paragraph 40, and Pavlov, paragraph 85. 42 — Pavlov, paragraphs 84 and 87. The Court has relied on the 40 — Joined Cases 209/78 to 215/78 and 218/78 Van same approach with regard to the definition of an under- Landewyck and Others v Commission [1980] ECR 3125, taking. It considered that Article 86 of the Treaty applied paragraphs 87 and 88; and Joined Cases 96/82 to 102/82, to the regulatory activity of a public telecommunications 104/82, 105/82, 108/82 and 110/82 IAZ and Others v undertaking (Case 41/83 Italy v Commission [1985] ECR Commission | 1 9 8 3 | ECR 3369, paragraphs 19 and 20. 873, paragraphs 16 to 20).

43 — CNSD, paragraph 7, and the Opinion of Advocate General 46 — See Advocate General Tesauro's Opinion in Poucet and Cosmas in that case (point 71). Pistre, point 8. 44 — Höfner and Eher, paragraph 21. 47 — See Mr Jacobs' Opinion in Case C-67/96 Albany [1999] 45 — That is so in the case of bodies entrusted with the ECR 1-5751, paragraph 312. management of certain compulsory social security schemes 48 — See, inter alia, Case C-244/94 Fédération Française des based on the principle of national solidarity (Joined Cases C-159/91 and C-160/91 Poucet and Pistre [1993] ECR Sociétés d'Assurance and Others [1995] ECR I-4013, I-637, paragraph 18), and bodies the activities of which paragraph 20; Albany (paragraph 86); and Pavlov (para- constitute a task in the public interest which forms part of graph 118). the essential functions of the State and which is connected 49 — See the Report for the Hearing in BNIC, paragraph 1.1, by its nature, its aims and the rules to which it is subject the judgment (paragraph 16), and Commission Decision with the exercise of powers which are typically those of a 82/896/EEC of 15 December 1982 relating to a proceeding public authority (Case C-364/92 SAT Fluggesellschaft pursuant to Article 85 of the EEC Treaty (IV/29.883 — [1994] ECR I-43, paragraph 30; and Case C-343/95 Diego UGAL/BNIC) (OJ 1982 L 379, p. 1), recitals 2 and 3 of Calì & Figli [1997] ECR I-1547, paragraphs 22 and 23). the reasoning.

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the nature of the interest pursued by the law have been clearly set forth by Advocate measure and consider that the entity con- General Jacobs in his Opinion in Albany. stitutes an association of undertakings only According to Mr Jacobs: 50 where it is acting in the exclusive interest of its members.

Now, at this stage of the analysis, the Court cannot adopt a restrictive approach. CNSD and Pavlov have clearly established the circumstances in which an entity may avoid Article 85 of the Treaty. Those are cases 84. On the other hand, the interveners' where, because of the composition and argument arises, to my mind, from the legal framework of its activities, the entity confusion of two different matters: one, is to be regarded as an organ of the State. defining the scope ratione personæ of By contrast, if a body is composed, as it is competition law, and the other, identifying in this case, exclusively of private economic a restriction of competition or a possible operators, the competition authorities must justification for the measure. necessarily be allowed to scrutinise all its actions in the light of the Treaty. 50 — Paragraph 184. Those considerations concerning the scope ratione materia; of the rules on competition may be transposed to their scope ratione personæ. 51 — See also A. Bach, note on Reiff; Case C-2/91 Meng [1993] ECR I-5751; and Case C-245/91 Obra Schadeverzeker- ingen [1993] ECR I-5851, in Common Market Law Review, 1994, p. 1357, footnote 14. The author states that, 'Instead of presuming corporate rule-making to be in the public interest, however, it seems much more justified The reasons which must underpin a broad to presume that this kind of rule follows the economic interests of those participating in the rule-making and interpretation of the field of competition creates restrictive conditions for newcomers and outsiders'.

52 — See, in particular, IAZ. In that case, the Anseau had concluded, with various manufacturers and importers of washing-machines, an agreement to monitor the conform- ity of the machines with the requirements laid down by Belgian, law with a view to preserving the quality of drinking water. The agreement was, however, imple- mented in such a way as to hinder parallel imports into Belgium. The Court ruled that 'the purpose of the agree- C — Restriction of competition ment ... is appreciably to restrict competition within the common market, notwithstanding the fact that it also pursues the objective of protecting public health' (para- graph 25, emphasis added). The public-interest objective pursued by the agreement did not, therefore, prevent the Court from finding that the Anseau was an association of 88. The second question seeks to ascertain undertakings within the meaning of Article 85(1) of the Treaty (paragraphs 19 to 21). whether, in forbidding lawyers to enter into

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multi-disciplinary partnership with accoun- Such is the case as regards horizontal tants, the Regulation has as its 'object or agreements for fixing the sale price of effect the prevention, restriction or distor- goods 57 or services,58 horizontal agree- tion of competition'. ments intended to partition national mar- kets, 59 vertical agreements including a clause prohibiting export 60 and, in general, any agreement the object of which is to bring about an artificial partitioning of the market. 61 89. In general, the Court passes through two successive stages in determining whether or not an agreement is compatible with Article 85(1) of the Treaty. 53

92. In either case, the criterion used to determine whether an agreement is liable to The Court thus declares agreements or restrict competition consists of considering decisions of associations of undertakings competition within the actual context in the sole purpose of which is to restrict or distort competition between the parties or between the parties and third persons to be 57 — Case 73/74 Groupement des fabricants de Papiers Peints de Belgique and Others v Commission [1975] ECR 1491, contrary to Article 85(1) of the Treaty. paragraph 10; and BNIC, paragraph 22. 58 — Verband der Sachversicherer v Commission, paragraphs 39 to 43. 59 — Case 41/69 ACF Chemiefarma v Commission [1970] ECR 53 — Case 56/65 Société Technique Mimere [1966] ECR 235, 661, paragraph 128. p. 359. 60 —Case 19/77 Miller v Commission [1978] ECR 131, 54 — Joined Cases 29/83 and 30/83 CRAM and Rheinzink v paragraph 7. Commission [1984] ECR 1679, paragraph 26. 61 — Consten and Grundig, pp. 342 and 343. 55 — Joined Cases 56/64 and 58/64 Consten und Grundig v 62 — Société Technique Minière, pp. 249 to 250; and Case Commission [1966] ECR 299, 342. C-234/89 Delimitis [1991] ECR I-935, paragraph 13. 56 — Case 45/85 Verband der Sachversicherer v Commission 63 — Case T-35/92 Deere v Commission [1994] ECR II-957, 11987) ECR 405, paragraph 39. paragraph 61.

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which it would occur in the absence of the 95. On that point, I would note that agreement. 64 proceedings under Article 234 EC are based on a clear separation of functions between the national courts and the Court of Justice, and that any assessment of the facts in the case is a matter for the national court. 70 The Court of Justice is empowered only to give rulings on the interpretation or 93. Furthermore, whether conduct is com- validity of a Community provision on the patible with Article 85(1) must be assessed basis of the facts which the national court in the economic and legal context of the puts before it. 71 case, 65 taking into account the nature of the product 66or service 67 and the struc- ture and actual conditions in which the market functions. 68

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(b) The effects of the Regulation sional secrecy or to guarantee the proper functioning of the [Office]'. 73

96. On the other hand, the Raad van State asks the Court to consider whether the effects produced by the Regulation are According to the Commission, the provi- restrictive of competition on the Nether- sions of the code of conduct laying down lands market for legal services. such rules 'are not liable to restrict compe- tition if they are applied objectively and without discrimination'. 74

97. The Association, the CCBE and some of the Governments which have intervened consider that this question calls for a negative answer. In support of their pos- 98. The interveners submit that the Com- ition, they in essence rely on Decision mission's reasoning, although it related to 1999/267 adopted by the Commission in patent agents, applies to all professions. 75 the IPR case. Inasmuch as the purpose of the contested prohibition on partnership is to guarantee the independence and loyalty to clients of lawyers, it will therefore fall outside the scope rattorte materiœ of Article 85(1) of the Treaty.

In that case, the Commission was called upon to decide on the legality of the rules in the code of conduct of the Institute of Professional Representatives before the European Patent Office (the IPR). The In its written observations, the Commission Commission took the view that most of did not take up a position on that matter. the rules considered fell outside the pro- In answer to a question raised by the Court, hibition laid down by Article 85(1) of the it replied briefly that the contested regu- Treaty on the ground that: lation was not liable appreciably to restrict competition in that it seeks to guarantee the independence of lawyers and to avoid conflicts of interests.

99. In essence, the arguments put forward necessary to interpret the Sherman Act in a by the parties invite the Court to adopt a more 'reasonable' way. In the first place, form of 'rule of reason'. That 'rule of they developed the theory called 'ancillary reason' would enable all professional rules restrictions': they held that restrictions of which are intended to ensure observance of competition necessary to the performance the ethical rules particular to the legal of an agreement lawful in itself fell outside profession to evade the prohibition laid the prohibition laid down in section 1 of down by Article 85(1) of the Treaty. the Sherman Act. 77 Then, the Supreme Court of the United States of America changed its point of view and adopted what might be called the 'competition balance-sheet method'. 78 That method is defined as being: 100. Before I examine that idea, it should be observed that the Treaty provisions on competition are set out according to a precise structure. Article 85(1) lays down the principle that agreements restrictive of competition are prohibited. In their respect- 'An analytical method intended to draw up, ive spheres of application, Articles 85(3) for every agreement in its own context, the and 90(2) provide opportunities for balance-sheet of its anti- and pro-competi- derogating from that principle. tive effects. If it shows a positive balance, because the agreement stimulates compe- tition more than it restricts it, section 1 of the Sherman Act will not apply.' 79

101. The rule of reason theory was devel- oped in the American law on agreements. In the United States, section 1 of the Sherman Act prohibits all obstacles to 102. In Community competition law, the competition without distinction as to 'rule of reason' may carry several mean- degree or motive. 76 Unlike Article 85 of ings. 80 However, it is not in the circum- the Treaty, that legislation does not provide stances of this case necessary to recall the for any possibility that the authorities learned disputes concerning the definition might exempt an agreement. of that concept or the advisability of its introduction into Community law. 81

— clauses essential to the performance of a franchise agreement do not constitute restrictions of competition within the meaning of Article 85(1) of the — selective distribution systems constitute Treaty; 85 an aspect of competition which accords with Article 85(1) of the Treaty, pro- vided that resellers are chosen on the basis of objective criteria of a quali- tative nature and that such conditions are laid down uniformly for all poten- — a provision in the statutes of a cooper- tial resellers and are not applied in a ative purchasing association, forbid- discriminatory fashion; 82 ding its members to participate in other forms of organised cooperation which are in direct competition with it, is not caught by the p r o h i b i t i o n in Article 85(1), so long as that provision is restricted to what is necessary to ensure that the cooperative functions properly and maintains its contractual power in relation to producers. 86 — the dissemination of a new agricultural product encourages competition and the grant of an 'open' exclusive licence for its cultivation and marketing in the territory of a Member State may be 104. It follows from those judgments that, necessary if that competition-encour- irrespective of any terminological dispute, aging objective is to be achieved; 83

84 — Remia and Others v Commission, paragraphs 17 to 20. 82 — Case 26/76 Metro v Commission [1977] ECR 1875, 85 — Case 161/84 Pronuptia [1986] ECR 353, paragraphs 14 to paragraphs 20 to 22. 27. 83 — Case 258/78 Nungesser and Eisele v Commission [1982] 86 — Case C-250/92 DLG [1994] ECR I-5641, paragraphs 28 ECR 2015, paragraphs 54 to 58. to 45.

87 — See, to that effect, Case 107/82 AEG v Commission [1983] ECR 3151, paragraphs 33 to 36. However, if we attempt to analyse the 88 — At the hearing, the Luxembourg Government nevertheless Commission's reasoning, it would appear argued that the Regulation had positive effects on compe- tition. It explained that, in forbidding lawyers to form partnerships with accountants, the Regulation made it possible to avoid practice being concentrated in the hands of a few large international firms and, thereby, to maintain a sufficient (if not very large) number of practitioners on 89 — H. Nyssens, cited above, paragraph 4.1.2. the market. I fully share the concerns expressed by the 90 — Article 9(1) of Council Regulation No 17 of 6 February Luxembourg Government. The risk of witnessing such acts 1962: First Regulation implementing Articles 85 and 86 of of concentration is genuine, having regard to the size of the Treaty (OJ, English Special Edition 1959-62, p. 87). certain law firms and certain firms of accountants. On 27 September 2000 the Commission presented to the However, from a legal point of view, this question must Council a proposal for a regulation on the implementation be examined in the light of other provisions of Community of the rules on competition laid down in Articles 81 and 82 law. Structural concentration operations fall within the of the Treaty and amending Regulations (EEC) ambit of Council Regulation (EEC) No 4064/89 of No 1017/68, (EEC) No 2988/74, (EEC) No 4056/86 and 21 December 1989 on the control of concentrations (EEC) No 3975/87 ('Regulation implementing Articles 81 between undertakings (OJ 1989 L 395, p. 1). The conduct and 82 of the Treaty') COM(2000) 582 final (OJ 2000 of integrated structures must be examined in the light of C 365 E, p. 284). Article 1 of this proposal declares, inter the provisions of Article 86 of the Treaty. alia, that Article 81(3) EC is to be directly applicable.

In the first place, it amounts to introducing into the wording of Article 85(1) of the Treaty considerations which are linked to the pursuit of a public-interest objective. In the second, it sets all the questions of fact 110. In his Opinion in Pavlov, Mr Jacobs and of law in the context of that provision. stated that: 'Owing to the heterogeneity of It implies that the Court should consider, in the professions and the specificities of the the light of Article 85(1) of the Treaty markets on which they operate, no general exclusively, not only the question of deter- formula can be applied'. 92 I fully concur mining whether a restriction of competition with that analysis. exists but also whether or not it might be justified. Such an interpretation is liable to negate a great part of the effectiveness of 91 — Paragraph 64. Articles 85(3) and 90(2) of the Treaty. 92— Section 89.

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It seems to me to be impossible to identify a metric information'. 93 In so far as the single formula which might cover all the consumer is rarely in a position to assess professional rules relating to all the pro- the quality of the services provided, certain fessions in the various Member States. Each rules might prove necessary in order to professional rule must be examined on a ensure that the market operates in normal case-by-case basis, depending on its sub- competitive conditions. Thus, there are ject-matter, context and purpose. those who claim that rules restricting advertising make it possible to avoid intro- ducing systematic enticement into the mar- ket and, in the long term, a falling-off in the general quality of the services. 94

infringements which are inherently inca- 115. Inasmuch as I propose that the inter- pable of qualifying for an exemption under veners' argument be rejected, it remains 100 Article 85(3) of the Treaty. 96 be considered whether the Regulation pro- duces effects restricting competition on the Netherlands market for legal services.

According to the case-law, the wording of Article 85(3) makes it possible to take account of the particular nature of different 116. In that regard, the arguments put branches of the economy, 97 social con- forward by the appellants in the main cerns 98 and, to a certain extent, consider- proceedings are persuasive. In the absence ations connected with the pursuit of the of the contested prohibition on partnership, public interest. 99Professional rules which, competition would be likely to develop in in the light of those criteria, produce various ways. economic effects which are positive, taken as a whole, should therefore be eligible for exemption under Article 85(3) of the Treaty.

By being associated with members of the legal services. They also offer services in legal profession, accountants could benefit such areas as the certification of accounts, from their experience. Their opinions, auditing, book-keeping and management consultations and the documents they draw consultancy. 100 Creating an associative up in various areas of the law could be structure with accountants would enable more reliable, better informed and, as a lawyers to offer a distinctly more varied result, offer significant gains. Furthermore, range of services to their clients. accountants would be able to extend the range of services they offer to their clients. As a result of their partnership with lawyers, the common structure could undertake the representation of their clients' interests before the judicial auth- orities in the event of litigation. 119. Second, integrating those various ser- vices into a single structure would bring additional advantages both for the profes- sionals concerned and for consumers.

services which were better adapted to their market. It hinders the appearance on the needs since the structure would possess market of associative structures capable of overall and in-depth knowledge of their offering 'integrated' services for which policies (commercial policy, sales strategy, there exists potential demand on the part personnel management, etc.) and the dif- of consumers. The effect of the contested ficulties they encounter. In addition, clients Regulation is therefore to 'limit or control ought to be able to save both time and production, markets, technical develop- money. They would not themselves need to ment or investment' within the meaning coordinate the services offered by the two of Article 85(1)(b) of the Treaty. 102 professional categories (lawyers and accountants), and could simply communi- cate to just one person all the information necessary for handling their business.

(c) Whether the restriction of competition is appreciable

120. In this connection, a study carried out at national level 101 indicates that under- takings are not unanimous in demanding 122. It is clear from established case-law the establishment of such multi-disciplinary that Article 85(1) of the Treaty prohibits structures. In those States in which they are only those restrictions of competition that authorised, it seems that each undertaking are appreciable. 103 individually chooses the type of organi- sation which it finds most suited to its needs (single structure or multiple pro- viders). None the less, the conclusion to be drawn from that study is that there is a genuine demand for that kind of structure, 123. In this case, several factors make it including lawyers and members of the possible to state that the Regulation professional category of accountants. appreciably restricts competition on the Netherlands market for legal services.

D — Whether trade between Member States is affected

128. It has been consistently held that 'in According to information supplied by the order that an agreement, decision or con- parties to the main proceedings, the market certed practice may affect trade between share held by the legal profession on the Member States it must be possible to market for legal services in the Netherlands foresee with a sufficient degree of prob- amounts to between 35 and 50%. The ability on the basis of a set of factors of law market shares held by firms of accountants or fact that it may have an influence, direct have not been communicated to the Court. or indirect, actual or potential, on the Nevertheless, certain official documents pattern of trade between Member States indicate that Arthur Andersen Worldwide such as to give rise to the fear that the and Price Waterhouse achieve 17 to 20% realisation of a single market between of turnover from the one area of tax Member States might be impeded'. 108 advisory services. 104 The turnover of each firm worldwide is between EUR 8 billion and EUR 10 billion. 105 106 — See, in that regard, Pavlov, paragraphs 94 to 97. 107 — Metro v Commission, paragraphs 20 to 22. 108 — Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 20. See also, inter alia, Société Technique Minière, p. 235, Consten and Grundig v 104 — Decision 1999/152, recital 70 in the statement of reasons. Commission, p. 495; L'Oréal, paragraph 18; and DLG, 105 — H. Nallet, cited above, p. 21. paragraph 54.

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The purpose of this partnership is, in particular, to offer 'integrated' services to 129. The condition relating to an effect on clients established in other Member States. intra-Community trade is also satisfied in Moreover, the national court has found 112 the circumstances of this case. that lawyers and tax advisers established in other Member States and belonging to Arthur Andersen or to Price Waterhouse could also have the intention of offering, in partnership with Mr Wouters and Mr Savelbergh, 'integrated' services in or from the territory of the Netherlands. Finally, as the appellants in the main proceedings have 130. First, it is not disputed that the con- pointed out, firms of lawyers and of tested Regulation covers the whole of the accountants often effect cross-border trans- territory of the Netherlands. The Court has actions involving simultaneously the legal repeatedly held that 'an agreement extend- systems of several Member States. ing over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the compartmentali- sation of markets on a national basis, thereby holding up the economic interpén- étration which the Treaty is designed to bring about'. 111

109 — Miller v Commission, paragraph 15; and Perrière Nord v Commission, paragraph 19. 110 — Joined Cases 240/82 to 242/82, 261/82, 262/82, 268/82 132. In consequence, the contested regu- and 269/82 Stichting Sigarettenindustrie and Others v lation is capable of affecting patterns of Commission [19851 ECR 3831, paragraph 49. 111 — CNSD, paragraph 48. See also Case 8/72 Vereeniging van intra-Community trade in 'integrated' ser- Cementhandeiaren v Commission [1972] ECR 977, vices. paragraph 29; Case 126/80 Saloma [1981] ECR 1563, paragraph 14; Remta and Others v Commission, para- graph 22; Case T-29/92 SPO and Others v Commission [19951 ECR II-289, paragraph 229; and SCK and FNK v Commission, paragraph 179. 112 — Order for reference, English translation, pp. 19 and 21.

113 — Question 3. 114 — Question 4. 'Any abuse by one or more undertakings of 115—Joined Cases T-68/89, T-77/89 and T-78/89 SIV and Others v Commission [1992] ECR II-1403, paragraph a dominant position within the common 358. market or in a substantial part of it shall be 116 — Paragraph 21.

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The Court has also held that any activity omic activity. 121 That in essence consists of consisting in offering goods or services on a activities carried on through an association given market is an 'economic activity'. 117 called 'BaliePlus'. As a general rule, an activity is economic in nature if it is capable of being carried on, at least in principle, by a private undertaking with a view to profit. 118

140. That argument is irrelevant.

117 — See, inter alia, Case 118/85 Commission v Italy [1987] 121 — Written observations of the appellants in the main ECR 2599, paragraph 7; CNSD, paragraph 36; and proceedings (paragraph 121). Pavlov, paragraph 75. 122 — See Mr Jacobs' Opinion in Albany, paragraph 207. 118 — See the Opinions of Mr Tesauro in Poucet and Pistre, 123 — According to the term used by I.. Idot, 'Nouvelle invasion point 8, and in SAT Fluggesellschaft, point 9. ou confirmation du domaine du droit de la concurrence? 119 — Van Landewyck, paragraphs 87 and 88. and IAZ, À propos de quelques développements récents ...', m Europe, January 1996, p. 1 (paragraph 24). paragraphs 19 and 20. 124 — See, inter alia, Commission v Italy, paragraph 7, and 120 — Case T-61/89 Dansk Pelsdyravlerforening v Commission Diego Cali & Pigli, paragraphs 16 to 18. [1992] ECR II-1931, paragraph 50.

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143. As the Raad van State noted in its dominant position with respect to Nether- third question, such activity is not econ- lands lawyers. The subject of the third omic in nature. The Association exercises question is confined to the issue of whether its regulatory power with a view to organis- the Association is to be regarded as an ing the legal profession in the Netherlands. undertaking within the meaning of It does not offer any service for reward on Article 86 of the Treaty. However, inas- the market. It is, moreover, difficult to much as the question of a collective domi- imagine that a private operator could, on nant position is likely to be of some interest its own initiative, undertake such regula- for the remainder of the main proceedings, tory activity for profit. I shall briefly consider the arguments put forward by the appellants.

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148. The precise meaning of the concept of undertakings concerned being so linked as the 'links' which must connect undertak- to their conduct on a particular market that ings is uncertain. 128 As case-law now they present themselves on that market as a stands, it is possible to consider that those collective entity vis-à-vis their competitors, links can be structural, 129 legal 130 or their trading partners and consumers'. 135 economic. 131 In addition, certain judg- ments 132 give grounds for thinking that the notion of 'economic links' covers mere economic interdependence between the members of an oligopoly. 133

149. Lastly, on several occasions 136 the Court seems to have indicated that one of the features of a collective dominant pos- ition is the absence of competitive relations between the various economic operators concerned. 137

With regard to links of a legal kind, the Court has noted that an agreement, decision or concerted practice within the meaning of Article 85(1) of the Treaty could lead to the creation of a collective 150. Traditionally, a collective dominant dominant position. Admittedly, the mere position is a situation in which economic fact that several undertakings are linked by operators occupy an oligopolistic position an agreement, a decision of an association on the market. However, in the light of the of undertakings or a concerted practice principles identified in the case-law, the cannot of itself constitute a sufficient basis possibility of applying that concept to the for such a finding. 134 None the less, the professions cannot be ruled out. 138 Court has held that an agreement, decision or concerted practice may 'undoubtedly, where it is implemented, result in the

compulsory membership of the competent duct of the profession may be justified association, professionals are part of a objectively. 142 Lastly, it may be asked collective entity the object of which is to whether, in accordance with the provisions define and apply common conditions for of Article 90(2) of the Treaty, the restric- the practice of the profession. 139 More- tion of competition caused by the abusive over, the rules imposed on the members of conduct is necessary in order to ensure the the profession may limit, sometimes sig- performance of the public-service task nificantly, the competition which operates which may be entrusted to the members between them by means of prices, services of the profession. and advertising. It is therefore possible that the rules governing the profession may on examination prove to be decisions of associations of undertakings which, when implemented, 'result in the undertakings concerned being so linked as to their conduct on [the] market that they present 153. In this case it is, however, impossible themselves on that market as a collective to take up a position on those various entity vis-à-vis their competitors, their questions. The consideration requested by trading partners and consumers'. 140 the appellants in the main proceedings cannot be carried out because the file does not contain the matters of law and fact necessary to that end.

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V I I— Article 90(2) of the Treaty vides that: undertakings (first condition) entrusted (second condition) with the oper- ation of a service of general economic interest (third condition) are to be subject to the rules contained in the Treaty in so far 155. The fifth question concerns the inter- (fifth condition) as the application of those pretation of Article 90(2) of the Treaty. rules does not obstruct (fourth condition) That provision is worded as follows: the performance of the particular tasks assigned to them, subject to the reservation that the development of trade (sixth con- dition) must not be affected to such an extent as would be contrary to the interests of the Community. 'Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-produc- ing monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct 158. We should bear in mind the principles the performance, in law or in fact, of the identified in the case-law relating to each of particular tasks assigned to them. The those conditions. I shall then examine the development of trade must not be affected factual circumstances of the dispute in the to such an extent as would be contrary to main proceedings in the light of those the interests of the Community.' principles.

156. The Raad van State asks whether the Association is liable to fall within the ambit of Article 90(2). More specifically, the A — The conditions for the application of national court wishes to know whether Article 90(2) of the Treaty the Association may be regarded as an entity entrusted with the operation of a 'service of general economic interest' in so far as it has adopted the contested Regu- lation for the specific purpose of preserving the independence and loyalty to clients of 159. The first condition laid down by lawyers. Article 90(2) does not pose any problems.

There can be no doubt that the undertak- ing's activities must be of 'general econ- omic interest exhibiting special character- Originally, it held that Article 90(2) did not necessarily require a legislative measure or 147 — Case C-159/94 Commission v France [1997] ECR I-5815, paragraph 66. 143 — See, to that effect, Pavlov, paragraph 77. 148 — Almelo, paragraph 47. 144 — Case 127/73 BRT II [1974] ECR 313, paragraph 20. 149 — C-159/94 Commission v France, paragraph 66. 145 — BRT II, paragraph 20; and Case 66/86 Ahmed Saeed 150 — Paragraphs 98 to 111. Flugreisen and Stiver Line Reisebüro [1989] ECR 803, 151 — In this connection, see the observations of L. Gyselen, paragraph 55. note on Albany; Joined Cases C-115/97 to C-117/97 146 — Case 172/80 Züchner [1981] ECR 2021, paragraph 7; Brentjens· [1999] ECR I-6025; and C-219/97 Drijvende and Case 7/82 GVL v Commission [1983] ECR 483, Bokken [1999] ECR I-6121, in Common Market Law paragraphs 29 to 32. Review, 2000, p. 425, at p. 445.

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164. By virtue of the fourth condition set by Article 90(2), undertakings entrusted 163. The Court has thus considered that the following fall within the ambit of 158 — Case 155/73 Sacchi [1974] ECR 409, paragraphs 13 to 15. 159 — Ahmed Saeed Flugreisen and Silver Line Reisebüro, 152 — Case C-179/90 Merci Convenzionali Porto di Genova paragraph 55. [1991] ECR I-5889, paragraph 27; Case C-242/95 GT- 160 — Almelo, paragraph 48; and Case C-157/94 Commission v Link [1997] ECR I-4449, paragraph 5 3 ; and Case C-266/96 Corsica Ferries France [1998] ECR I-3949, Netherlands [1997] ECR I-5699, paragraph 41. paragraph 45. 161 — Albany, paragraph 105. 153 — Case C-320/91 Corbeau [1993] ECR I-2533, paragraph 162 —Case C-18/88 GB-lnno-BM [1991] ECR I-5941, para- 19. graph 16. 154 — Corsica Ferries France, paragraph 45. 163 — Corbeau, paragraph 15. 155 — Ibid., paragraph 60. 164 — Case C-209/98 Sydhavnens Sten & Grus [2000] ECR 156 — F. Blum, 'De Sacchi à Franzén en passant par la Crespelle: la jurisprudence récente de l'article 90', in Gazette dit I-3743, paragraph 75. Palais, 1999, No 20, p. 12, at p. 21. 165 — Corsica Ferries France, paragraphs 45 and 60. 157 — Case C-202/88 France v Commission [1991] ECR I-1223, 166 — Merci Convenzionali Porto di Genova, paragraph 27; paragraph 12; and Albany, paragraph 103. and GT-Link, paragraphs 52 and 53. 167 — Corbeau, paragraph 19. I - 1625

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with the operation of services of general holder to perform its task in economically economic interest may avoid the appli- acceptable conditions. 169 cation of the competition rules if such application 'obstructs' the performance of the particular tasks assigned to them.

It follows that restrictions on competition from other economic operators are allowed only 'in so far as they are necessary in order to enable the undertaking entrusted with In that regard, the Court considers that it is such a task of general interest to perform not necessary, for the conditions for appli- it.' 170 The proportionality test thus leads to cation of Article 90(2) to be fulfilled, that establishing whether the undertaking's par- the survival, economic viability or financial ticular task might not be accomplished by balance of the undertaking should be measures less restrictive of competition. 171 threatened by the application of the com- In other words, it requires the solution petition rules. 168 It is enough that, in the absence of special or exclusive rights con- ferred by the State, performance of the 169 — Pavlov, paragraph 107. The Court has thus considerably particular tasks assigned to the undertaking relaxed its requirements relating to the fourth condition imposed by Article 90(2) of the Treaty. It had originally is obstructed or that maintenance of those required proof that the application of the competition rules was incompatible with the performance of the rights is necessary in order to enable their undertaking's particular tasks (see Sacchi, paragraph 15; Case 311/84 CBEM [1985] ECR 3261, paragraph 17; Höfner and Elser, paragraph 24; and Case C-260/89 ERT [1991] ECR I-2925, paragraph 33). 168 — Case C-159/94 Commission v France, paragraphs 59 and 170 — Almelo, paragraph 49. See also Corbeau, paragraph 14. 95, and Pavlov, paragraph 107. 171 — Sydhavnens Sten & Grus, paragraph 80.

To my knowledge, the Court has never yet 167. In this case, several of the interveners ruled on the content and scope of that maintain that the Association falls within requirement. In its judgments in Commis- the scope of Article 90(2) of the Treaty. sion v Netherlands, Commission v Italy and Commission v France, 173 it stated that 'it was incumbent on the Commission ... to define, subject to review by the Court, the Community interest in relation to which the development of trade must be assessed'. They submit that the Association is It is, however, difficult to draw any con- entrusted with public-interest tasks since it clusions from those judgments since they has to further the proper practice of the were given in the particular context of legal profession and to draw up rules infringement proceedings. The obligation intended to ensure that individuals have incumbent on the applicant institution is access to the law and to the courts of the explained, therefore, by the rules governing Netherlands. According to those inter- the burden of proof in such cases. veners, if the Court were to consider that the Association constitutes an association of undertakings for the purposes of 172 — In the words of R. Kovar, 'La Cour de justice et les entreprises chargées de la gestion d'un service d'intérêt économique général. eUn pas dans le bon sens vers une dérégulation réglée (2 partie)', in Europe, 1994, p. 2. 174 — Sec Advocate General Rozès' Opinion in Case 78/82 173 — Case C-157/94 Commission v Netherlands, paragraph Commission v Italy [1983] ECR 1955, point VI-C; and 69; Case C-158/94 Commission v Italy [1997] ECR Advocate General Cosmas' Opinion in the abovemen- I-5789, paragraph 65; and Commission v France, para- tioned Joined Cases C-157/94, C-158/94, C-159/94 and graph 113. C-160/94, point 126.

170. I do, however, believe that 175 — See point 51 above. Article 90(2) may apply to the lawyers 176 — Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraph 23; and the preamble to the Charter of who practise in the Netherlands. The con- Fundamental Rights of the European Union (OJ 2000 C 364, p. 1). ditions for the application of that provision 177 — With regard to the Community legal order, see Case seem to me to be satisfied so far as that 26/62 Van Gend & Loos [1963] ECR 1, at p. 12.

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judicial nature. They have also laid down as assisting 179 and collaborating 180 in the principle that individuals must in any justice. circumstances be able to turn to those authorities for recognition or enforcement of their rights.

175. It follows that lawyers perform activ- ities which are essential in a State governed by the rule of law. They make it possible 174. Nevertheless, on account of the com- for individuals to have a better knowledge plexity of legislation and of the organi- and understanding of the rights granted to sation of judicial power, individuals are them and to enforce those rights more rarely in a position to defend by themselves efficiently. In other words, in a State the rights they enjoy. Lawyers lend them governed by the rule of law, lawyers ensure the assistance which is essential for that the effectiveness of the principle of access purpose. to the law and to the courts.

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characteristics as compared with the gen- to suffice for a finding that lawyers practis- eral economic interest of other economic ing in the Netherlands are 'entrusted' with activities'. 182 their particular tasks by the Netherlands authorities. 183

177. In addition, various provisions of Netherlands law give grounds for stating 178. In consequence, I consider that law- that lawyers registered in the Netherlands yers registered in the Netherlands consti- are in fact 'entrusted' with particular tasks tute undertakings entrusted with the oper- by act of the public authorities. ation of a service of general economic interest within the meaning of Article 90(2) of the Treaty.

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181. Independence requires lawyers to represent parties whose interests are, or in carry out their advisory duties and those the past were, opposed. In addition, law- of assistance and representation in the yers may not use to the benefit of one client client's exclusive interest. Independence information concerning, or obtained from, must be demonstrated vis-à-vis the public another client. authorities, other operators and third parties, by whom they may never be influenced. Independence must also be demonstrated vis-à-vis the client who may not become his lawyer's employer. Inde- pendence is an essential guarantee for the individual and for the judiciary, with the 184. In the light of those features, the result that lawyers are obliged not to get prohibition on partnership laid down in involved in business or joint activities the contested Regulation may be necessary which threaten to compromise it. if lawyers are to be able to perform the particular tasks assigned to them.

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Lawyers might no longer be in a position to The risk of violating legal professional advise and defend their clients indepen- secrecy is the greater because, in some dently if they were to belong to an organi- circumstances, accountants are required by sation that had also to give an account of law to impart to the competent authorities the financial results of the transactions in information concerning their clients' activ- which they acted. In other words, setting ities. up a body with financial interests in common with members of the professional category of accountants poses the risk of tempting — even forcing — lawyers to take account of considerations other than those exclusively linked to their clients' interests. 187. In consequence, I believe that the restriction of competition caused by the Regulation is necessary if features which form part of the very essence of the legal profession in the Netherlands are to be protected in the public interest.

186. In the second place, the existence of multi-disciplinary partnerships between lawyers and accountants is such as to constitute a major obstacle to observance of lawyers' professional secrecy. 188. In the fourth place, the contested ban on partnership does not affect the develop- ment of trade to such an extent as would be contrary to the interests of the Community.

The contested Regulation is capable only of decision-making power and final responsi- restricting intra-Community trade in 'inte- bilities. 187 Outside that particular method grated' services. It does not prohibit law- of association, lawyers and accountants are yers and accountants from separately offer- authorised to pursue any other form of ing their services to clients established in joint activity on the Netherlands mar- other Member States. Nor does it affect the ket. 188 opportunity for lawyers and accountants established in other Member States to respond separately to demand from Netherlands clients. There are, therefore, no grounds for considering that the Regu- lation significantly obstructs the develop- 192. Second, I think that the independence ment of trade within the meaning of and professional secrecy of lawyers cannot Article 90(2) of the Treaty. be safeguarded by measures less restrictive of competition.

In the first place, it is not disputed that the another Member State does not mean that Association's authorities cannot monitor the latter's rules are disproportionate and the members of the profession generally hence incompatible with Community and permanently. Moreover, such monitor- law'. 192 It is therefore immaterial that ing would not appear to be desirable, given other Member States, such as the Federal the atmosphere of distrust which it would Republic of Germany, authorise multi-dis- create within the profession. ciplinary partnerships of lawyers and accountants. 193

195. In the third place, I would note that, according to established case-law, the Court considers that: 'the fact that one Member State imposes less strict rules than 198. First, it is the appellants' contention that the rules adopted by the Association 190 — See the written observations of the Association, para- graph 252, and the resolution of the CCBE on integrated forms of cooperation between lawyers and persons not 192 — Case C-384/93 Alpine Investments [1995] ECR I-1141, belonging to the profession, adopted in Athens on paragraph 51; Case C-3/95 Reisebüro Broede [1996] 12 November 1999 [http://www.ccbe.org (p. 3)]. ECR I-6511, paragraph 42, and Case C-108/96 Mac 191 — To the same effect, H. Nallet, cited above, considers that: Quen and Others [2001] ECR I-837, paragraph 33. 'the networks must provide written guarantees concern- 193 — It ought, however, to be observed that in German law ing the way in which they will ensure the independence of accountants are subject to professional regulation the professions vis-à-vis each other and of lawyers within broadly identical to that of lawyers. In particular, those networks. The principle must remain the prohib- accountants are not subject to an obligation to pass ition of fee-sharing' (p. 107). information to third parties.

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are discriminatory. They point out that the that that conclusion is transposable in full Association expressly authorises lawyers to to multi-disciplinary partnerships between enter into multi-disciplinary partnerships lawyers and accountants. The status and with notaries, tax advisers and patent scope of that report were discussed at the agents. By contrast, the Association forbids hearing. The Court is not in a position to them to enter into multi-disciplinary part- make an assessment of that question either. nerships with members of the professional category of accountants.

199. Second, the appellants have produced a report drawn up in July 1999 by a working group set up within the Ministry of Justice and the Ministry of Economic Affairs. 194 They maintain that the working group reached the conclusion that the prohibition of multi-disciplinary partner- 201. I therefore propose that the Court ship between notaries and accountants was should reply to the fifth question to the disproportionate and could not be justified effect that it is not contrary to Article 90(2) on objective grounds. The appellants claim of the Treaty for a professional association of lawyers, such as the Association, to adopt a binding measure prohibiting law- 194 — 'Interdisciplinaire Samenwerking door Notarissen', Inter- yers practising in the territory of the ministerial Report of the Netherlands Ministry of Justice Member State concerned from entering and the Netherlands Ministry of the Economy (Annex 13 to the written observations of the appellants). into multi-disciplinary partnership with

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members of the professional category of 205. In this connection, the Court's case- accountants, if it appears that that measure law lays down the following principles. 195 is necessary in order to safeguard lawyers' independence and professional secrecy.

195 — See, in particular, Case 13/77 GB-Inno-BM [1977] ECR 2115, paragraphs 29 to 31; Case 311/85 Vereniging van 204. When examining the third question Vlaamse Reisbureaus [1987] ECR 3801, paragraphs 22 to 24; Case 267/86 Van Eycke [1988] ECR 4769, referred, I decided that Article 86 of the paragraph 16; Ahmed Saeed Flugreisen and Silver Line Treaty was not applicable to the Associ- Reisebüro, paragraph 48; Meng, paragraph 14; Reiff, paragraph 14; Ohra Schadeverzekeringen, paragraph 10; ation. The scope of the sixth question will Delta Schiffahrts- und Speditionsgesellschaft, paragraph 14; Centro Servizi Spediporto, paragraphs 20 and 21; therefore be confined to the interpretation DIP and Others, paragraphs 14 and 15; Sodemare, paragraphs 41 and 42; CNSD, paragraphs 53 and 54; of Article 5 in conjunction with Article 85 Corsica Ferries France, paragraphs 35 and 49; and of the Treaty. Albany, paragraph 65.

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196 — See the operative part of the judgments in Meng and The Court considers that legislation keeps Obra Schadeverzekeringen. its official character if the public authorities 197 — Cited above. reserve for themselves the power to set the 198 — Opinion in Meng and Obra Schadeverzekeringen. 199 — Opinion in Reiff. 200 — Opinion in DIP and Others. 201 — See, in particular, Corsica Perries France, paragraphs 50 203 — See, to that effect, my Opinion in Arduino. to 54; Albany, paragraph 66, and Pavlov, paragraphs 99 204 — R. Joliét, 'National Anti-competitivc Legislation and and 100. Community Law', in Fordbam International Law Jour- 202 — Opinion in Pavlov, points 160 to 164. nal, 1989, p. 163 (at p. 172).

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essential terms of the economic 209. The question of the delegation of decision.205 Such is obviously the case powers in the economic sphere is crucially where the State measure itself lays down important when we come to the profes- the prohibition the effects of which may be sions. The matters at stake in this question restrictive of competition.206 Such is also were clearly set forth by Mr Jacobs in his the case where the decision is taken by Opinion in Pavlov. He observed that: private economic operators but where the public authorities possess the power to approve, reject or amend it, or to replace it with their own decision. 207 In that situation, the official character of legis- lation is not called in question merely because it was adopted following consul- tations with representatives of private economic operators. 208

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210. The Court is therefore called upon to authorities seems to me insufficient to lay down criteria which will make it poss- guarantee effective review by the public ible to strike a balance between, on the one authorities. Such review would mean that hand, the need to allow the professions a professionals should have the right to apply certain power of self-regulation and, on the to the courts of general jurisdiction, that is other, the need to avoid the risks of anti- to say, to jurisdictions outside the profes- competitive conduct inherent in the grant- sion. Review by the courts and tribunals ing of such a power. would have to cover not only decisions of an individual nature but also measures of general application.

211. In this respect, I think that two con- ditions might bring about such a balance. 214. The facts of the case in the main proceedings must be examined in the light of those two conditions.

Netherlands authorities were closely sufficient prior scrutiny if it finds that there involved in the procedure for adoption of exists a constant practice whereby the its regulations. The Association has indi- bodies of the Association are obliged to: cated that it systematically communicated (1) communicate to the Minister for Justice its draft regulations to the Minister for draft regulations concerning the essential Justice, so as to enable the minister to rules of the legal profession in the Nether- follow with attention developments in the lands, and (2) take into consideration the profession. In its order for reference, 212 the observations made by the Minister for Raad van State found, however, that the Justice about those drafts. provisions of the Advocatenwet did not provide for the public authorities to play any part in drafting the Association's regu- lations.

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220. I do not think so. sions of a regulation concerning practice as a salaried employee (1977). In addition, the Crown has threatened to use its powers should certain regulations be adopted by the Association. It has also threatened to use its power of annulment in connection 221. It seems to me that the condition laid with a regulation relating to practice as a down in the Court's case-law — that the salaried employee (1977) and in connection public authorities must be able to substitute with an amendment to the training regu- their own decisions for the measures lation relating to 'external employers' adopted by private economic operators — (1984). is no more than the expression of a more general principle, requiring the control exercised by the public authorities to be effective. In the circumstances, the power of direct substitution is only one of the possible methods of exercising State con- trol. As for the third factor, the appellants have stated that 'even after a regulation has been annulled, the Association remains compet- ent to settle for itself, independently, the content of the (new) regulation'. 214 222. The question arising is therefore that of determining whether the power to annul and suspend given to the Crown amounts to effective control. In my view, to that end three points need consideration. They relate to: (1) the frequency with which the power 224. It is my belief that that information is to annul or suspend is exercised; (2) the insufficient to enable the Court to take up a subject-matter of the measures annulled or position on the matter of the subsequent suspended; and (3) the mandatory nature of review exercised by the Crown. the grounds leading to annulment or sus- pension.

The crucial criterion in this respect is to The facts giving rise to this dispute show ascertain whether the Crown does in fact that it was open to Mr Wouters and Mr take steps to monitor the compatibility, in Savelbergh to turn to the courts of general the light of the public interest, of regu- jurisdiction in order to challenge an indi- lations which are essential to access to, and vidual decision affecting them taken by practice of, the profession. bodies of the Association. When those proceedings were brought, the parties con- cerned were able to plead that the general measure (the contested Regulation) was unlawful, having regard to the provisions of competition law. Accordingly, lawyers registered in the Netherlands have an effective remedy before the courts of gen- 226. As regards the third factor, I find it eral jurisdiction against decisions of indi- difficult to imagine that the Association vidual or general character adopted by the might, after the Crown has intervened, Association's bodies. adopt a regulation identical to one that has been annulled or suspended. The rationale of the system set up by the Netherlands legal order would seem rather to demand that the Association should be obliged to adopt a fresh regulation in keeping with the grounds that led to the annulment or suspension. If such is actually the case, the national court may conclude that the public authorities have reserved to themselves the — indirect — power to decide the content of the rules relating to the legal profession in the Netherlands. 228. On the basis of the foregoing con- siderations, I propose that the Court should state in answer to the sixth question that it is not contrary to Articles 5 and 85 of the Treaty for a Member State to confer on a professional association of lawyers, such as the Association, the power to adopt bind- ing measures governing whether or not it is possible for lawyers practising in its terri- tory to enter into multi-disciplinary part- B — The existence of a legal remedy avail- nership with members of the professional able to members of the profession category of accountants, subject to the twofold condition that (1) the authorities of the Member State concerned should reserve to themselves the power to deter- mine, directly or indirectly, the content of the essential rules of the profession and (2) 227. The second condition, relating to the the members of the profession should have existence of a legal remedy available to an effective legal remedy before the courts members of the profession, is clearly satis- of general jurisdiction against the decisions fied in the circumstances of the case. adopted by the association's bodies.

A — The provisions applicable to the dis- pute in the main proceedings 231. By its eighth question, the national court wishes to know whether the con- tested ban on partnership amounts to an obstacle to the right of establishment and/or the freedom to provide services. 234. Let me make the preliminary obser- vation that the Treaty provisions on free- dom of movement for persons and the free movement of services are not applicable only to measures taken by the public authorities. They also extend to measures 232. Finally, the ninth question concerns of another kind which seek to regulate, the reasons which might justify an obstacle collectively, the employment of workers to freedom of movement for persons. More exactly, the Raad van State wishes to know whether the prohibition of multi-disciplin- 215—Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, paragraph 16. ary partnerships of lawyers and accoun- 216 —Case C-55/94 Gebhard [1995] ECR I-4165, paragraph tants may be treated as similar to a 'selling 37.

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217 — See, inter alia, Case 36/74 Walrave and Koch [1974] ECR 1405, paragraph 17; Case 13/76 Donà [1976] ECR 1333, paragraph 17; Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, paragraph 47; and Case 239. In this instance, there is no evidence to C-281/98 Angonese [2000] ECR I-4139, paragraphs 30 to 36. support a finding that the dispute in the 218 — With regard to Article 59 of the Treaty, see, inter alia, Case 52/79 Debauve and Others [1980] ECR 833, main proceedings has any such connection paragraph 9; Höfner and Elser, paragraph 37; Reisebüro to Article 52 of the Treaty. Broede, paragraph 14; and Deliège, paragraph 58. With regard to Article 52 of the Treaty, see, inter alia, Case 204/87 Bekaert [1988] ECR 2029, paragraph 12; and Joined Cases C-54/88, C-91/88 and C-14/89 Nino and Others [1990] ECR I-3537, paragraph 11. 220 — Appellants' written observations, paragraph 162. 219 — Appellants' written observations, paragraph 162. 221 — Gebhard, paragraph 25, emphasis added.

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other Member States. 225 Moreover, contrary to what the appellants seem to suggest, there is nothing to support the argument that Arthur Andersen & Co. Belastingadviseurs and Price Waterhouse Belastingadviseurs BV have been given a special power to act on behalf of 'practi- tioners working together with them' and established in another Member State. That being so, the appellants cannot to advan- tage plead the Treaty provisions concerning the right of establishment. 223 241. It follows that the contested Regu- lation must be examined in the light of

None the None the less, the question is, in the circumstances, less, the question is, in the circumstances, hypothetical hypothetical since there is no evidence in the file to since there is no evidence in the file to suggest that the suggest that the persons concerned are parties to the persons concerned are parties to the proceedings before proceedings before the Raad van State. the Raad van State.

Alpine Investments carried on business in the Netherlands. It specialised in commod- ities futures. The Netherlands authorities had forbidden it to resort to 'cold calling', '[C]ontrary to what has previously been or contacting individuals by telephone decided, the application to products from without their prior consent in writing in other Member States of national provisions order to offer them various financial ser- restricting or prohibiting certain selling vices. Alpine Investments challenged that arrangements is not such as to hinder directly or indirectly, actually or poten- tially, trade between Member States within 226 — Keck and Mitbouard, paragraph 16, emphasis added. the meaning of the Dassonville judgment 227 — Keck and Mitbouard, paragraph 17. 228 — See also, to this effect, the Opinion of Mr Lenz in Case (Case 8/74 [1974] ECR 837), so long as C-391/92 Commission v Greece [1995] ECR I-1621, those provisions apply to all relevant paragraph 18. 229 — The Court has already transposed the criterion of 'access traders operating within the national terri- to the market' to the field of freedom of movement for tory and so long as they affect in the same workers. See Case C-415/93 Bosman [1995] ECR I-4921, paragraph 103, and Case C-190/98 Graf [2000] ECR manner, in law and in fact, the marketing I-493, paragraphs 23 to 26.

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230 — Alpine Investments, paragraph 33. 232 — Ibid., paragraph 38, emphasis added. 231 — Ibid., paragraph 28. 233 — See also Gourmet International Products, paragraph 38.

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lic of Germany, authorise the setting-up of 250. The contested Regulation must now multi-disciplinary structures including be considered in the light of those four members of both professional categories. conditions. Clients established in those States might therefore wish to make use of 'integrated' services offered by operators established in the Netherlands. 251. To that end, I refer for the greater part to the considerations set out above when I examined the fifth question concerning the interpretation of Article 90(2) of the Treaty. 248. In consequence, the ban on partner- ship in issue cannot be equiparated to a 'selling arrangement' within the meaning of Keck and Mithouard. It constitutes an obstacle to freedom to provide services and must be examined in the light of the 252. In its order for reference, 235the Raad conditions laid down by Article 59 of the van State found that the contested regu- Treaty. lation satisfied the first condition laid down in Gebhard.

In the field of freedom of movement of 256. Finally, as regards the last condition, I persons, the Court has invariably held that have explained why several factors support the application of professional rules to the conclusion that the contested Regu- lawyers — in particular, rules relating to lation does not go beyond what is necessary organisation, qualifications, professional in order to safeguard lawyers' indepen- ethics, supervision and liability — pursue dence and professional secrecy. 239 I have, an objective in the public interest. 237 The however, indicated that to my mind the Court considers that the application of such Court was not in possession of all the professional rules ensures that the ultimate information required in order itself to settle consumers of legal services are provided the question of the Regulation's propor- with the necessary guarantees in relation to tionality. 240 In consequence, consideration integrity and experience and contributes to of that question must be referred back to the sound administration of justice. 238 the national court.

X — Conclusion

258. In the light of the foregoing, I therefore propose that the questions referred to the Court by the Raad van State should be answered as follows:

(1) On a proper construction of Article 85(1) of the EC Treaty (now Article 81(1) EC), the concept of association of undertakings is applicable to a professional association of lawyers such as the Nederlandse Orde van Advocaten.

If a professional association of lawyers is composed exclusively of members of the profession and is not required by law to take its decisions in compliance with a number of public-interest criteria, it must be considered to be an association of undertakings within the meaning of Article 85(1) of the Treaty in respect of all its activities, irrespective of the subject-matter and purpose of the measure adopted.

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(5) It is not contrary to Article 5 of the EC Treaty (now Article 10 EC) and Article 85 of the Treaty for a Member State to confer on a professional association of lawyers, such as the Nederlandse Orde van Advocaten, the power to adopt binding measures governing whether or not it is possible for lawyers practising in its territory to enter into multi-disciplinary partnership with members of the professional category of accountants, subject to the twofold condition that (1) the authorities of the Member State concerned should reserve to themselves the power to determine, directly or indirectly, the content of the essential rules of the profession and (2) the members of the profession should have an effective legal remedy before the courts of general jurisdiction against the decisions adopted by the association's bodies. It is for the national court to determine whether that is the case.

(6) Article 52 of the EC Treaty (now, after amendment, Article 43 EC) is not applicable to situations which are purely internal to a Member State.

(7) It is not contrary to Article 59 of the EC Treaty (now, after amendment, Article 49 EC) for a professional association of lawyers, such as the Nederlandse Orde van Advocaten, to adopt a binding measure prohibiting lawyers practising in the territory of the Member State concerned from entering into multi-disciplinary partnership with members of the professional category of accountants if that measure is necessary in order to safeguard lawyers' independence and professional secrecy. It is for the national court to determine whether that is the case.