ERA Academy of European Law Trier

ERAAcademy of European Law Trier

Competition rules and regulation of legal professions – Case law of the ECJ • 4th Annual conference on EU Law • Institute for European Studies • Ass. jur. Jens Hamer, Maître en droit européen • Head of Section “European Business Law”, ERA 2

Setting the scene • Articles 81 ff EC and their application to legal professions • NOT Art. 49 EC – Services • Not an exhausting list of Case-law • Consequences difficult to predict • Follow-up by the Commission 3

The cases • C-309/99 Wouters (Judgment) • C-35/99 Arduino (Judgment) • C-198/01 CIF (Judgment) • C-250/03 Mauri (Order) • C- 94/04 Cipolla (AG Maduro) • C-202/04 Macrino (AG Maduro) 4

C-309/99 Wouters • In Brief: • Netherlands rules prohibiting multi-disciplinary partnerships between Bar Members and Accountants are compatible with the EC Treaty • Qualification of the Netherlands Bar as an association of undertakings opens the scope of Art. 81 EC for National Bar Associations • No requirement to take decisions in the public interest 5

C-309/99 Wouters • Prohibition of one-stop-shop produces effects restrictive of competition and affects trade between MS • BUT incompatibility between the services (duty of secrecy) • Measure reasonable and necessary for proper practice of legal profession 6

C-309/99 Wouters • No per-se exclusion from EC Competition rules of • to avoid misuse of the Regulatory power • for rules adopted which are attributable to it alone (Para 68, 69). • Strengthening of proper practice of legal practice (Para 109, 110) • for professional duties and essential rules and • no benefit of art. 86 Para. 2 exemption (Para 111 ff). 7

C-35/99 Arduino • The compulsory tariffs for the fees payable to Italian Bar Members are compatible with the EC Treaty. • The Italian procedure which consists in the approval by the Government of a draft scale of fees payable to members of the Bar - proposed by the National Council - is not contrary to EC Competition law. 8

C-35/99 Arduino • Entrusting a professional organisation with this task does not bring it into the scope of Art. 81 EC, as: - MS has the last word (Wouters!) - No delegation to private economic actors through the procedure (Para.39) • BUT results of the judgement - only applicable to the Italian procedure - not to all MS and professional Regulations 9

C-198/01 CIF • Consortium of match manufacturers allocates production quotas and price fixing • Companies cannot be fined for their conduct under the national rules which are not compatible with Art. 81 EC • Relation to Arduino with regard to price fixing and conduct of state: - Does the MS legitimizes or reinforces the effects of the conduct, specifically with regard to price-fixing in entrusting a professional body? (Para. 45, 46, and 58) - According to Arduino national procedure is determining 10

C-250/03 Mauri • Composition of examination jury • Court examines: • Does the MS requires or encourages the adoption of agreements etc or reinforces their effects by delegating to private economic operators responsibility for taking decisions affecting the economic sphere ? (Para. 29, 30) • It does not appear that, in the circumstances of the main proceedings, the State has divested its own rules on access to the profession of advocate of the character of legislation by delegating to advocates responsibility for taking decisions concerning access to their profession • ECJ examines the national procedure: No delegation 11

C-94/04 Cipolla • Prohibition of derogation from the scale of lawyer’s fee’s (minimum and maximum) • AG Maduro follows Arduino (Para. 40) • But underlines anti-competitive effect • a national measure preventing lawyers and their clients from derogating from the scale of lawyers’ fees does not infringe Art. 10 and 81 EC on condition that the measure has been subject to effective supervision by the State and where the court’s power to derogate from the amounts fixed by the scale is interpreted in accordance with Community law 12

C-204/04 Macrino • concerns out-of-court services in the scale of lawyers’ fees • increased anti-competitive effect in relation to a scale which concerns only court-related services • AG Maduro nevertheless follows Arduino • a national measure fixing a scale for lawyers’ fees, even as regards out-of-court services, does not infringe Art. 10 and 81 EC provided that the measure has been subjected to effective supervision by the State and where the power of the court to derogate from the amounts fixed by the scale is interpreted in accordance with Community law 13

Follow-up by the Commission • http://ec.europa.eu/comm/competition/sectors/professional_services/overview_en.html • the first report of 9 February 2004 'Report on Competition in Professional Services' • followed on 5 September 2005 by the report 'Professional Services - Scope for more reform‚ • Seeks better regulation of professional services 14

Conclusions • “State Action Defence” can be brought forward by National Bar’s • ECJ decisions only concerned specific situations in the MS • It follows from the settled case-law, that MS must have “the last word to say” • Destinction seems to be: • when it grants regulatory powers to a professional association, is careful to define the public-interest criteria and the essential principles with which its rules must comply and also retains its power to adopt decisions in the last resort • the rules adopted by the professional association are attributable to it alone (Wouters and Maduro) • As such the national procedure/ proceeding decides 15

Conclusions • With regard to core values of the profession proportionality applies • Core values can only justify restrictions to the extent proportionality is given • In Wouters: • Take account of the national context • But no leeway for not adopting least restrictive measures • Again national context seems to be decisive 16

Thank you very much for your attention!www.era.int 17

ERA Academy of European Law Trier