Opinion of the Advocate General — ECLI:EU:C:2001:390
Date: 2001-07-10
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Right of establishment;Freedom to provide services;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 
1. Competition — Community rules — Undertaking — Definition — Members of the 
Bar — included 
(EC Treaty, Arts 85, 86 and 90 (now Arts 81 EC, 82 EC and 86 EC» 
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SUMMARY — CASE C-309/99 
2. Competition — Agreements, decisions and concerted practices — Decisions taken by 
associations of undertakings — Definition — Regulation applicable to professional 
partnerships of members of the Bar with other professions adopted by the Bar of a 
Member State — Included 
(EC Treaty, Art. 85 (now Art. 81 EC)) 
3. Competition — Agreements, decisions and concerted practices — Prejudicial to 
competition — Partnerships of Members of the Bar with accountants prohibited by 
the Bar of a Member State — Assessed with regard to the overall context of the 
prohibition — Justification — Proper practice of the legal profession 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
4. Competition — Dominant position — Collective dominant position — Defini­
tion — Bar of a Member State — Excluded 
(EC Treaty, Art. 86 (now Art. 82 EC)) 
5. Freedom of movement for persons — Freedom of establishment — Freedom to 
provide services — Treaty provisions — Scope — Rules which are not public in 
nature designed to regulate collectively self-employment and the provision of 
services — Included 
(EC Treaty, Arts 52 and 59 (now, after amendment, Art. 43 EC and 49 EC)) 
6. Freedom of movement for persons — Freedom of establishment — Freedom to 
provide services — Restrictions — Prohibition of partnerships of members of the Bar 
with accountants laid down by the Bar of a Member State — Justification — Proper 
practice of the legal profession 
(EC Treaty, Arts 52 and 59 (now, after amendment, Arts 43 EC and 49 EC)) 
1. Members of the Bar carry on an 
economic activity and are, therefore, 
undertakings for the purposes of 
Articles 85, 86 and 90 of the Treaty 
(now Articles 81 EC, 82 EC and 86 
EC), and the complexity and technical 
nature of the services they provide and 
the fact that the practice of their 
profession is regulated cannot alter 
that conclusion. Members of the Bar 
offer, for a fee, services in the form of 
legal assistance consisting in the draft­
ing of opinions, contracts and other 
documents and representation of 
clients in legal proceedings. In addi­
tion, they bear the financial risks 
attaching to the performance of those 
activities since, if there should be an 
imbalance between expenditure and 
receipts, they must bear the deficit 
themselves. 
(see paras 48-49) 
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WOUTERS AND OTHERS 
2. When it adopts a regulation concerning 
partnerships between Members of the 
Bar and members of other professions, 
the Bar of a Member State is neither 
fulfilling a social function based on the 
principle of solidarity, unlike certain 
social security bodies, nor exercising 
powers which are typically those of a 
public authority. It acts as the regula­
tory body of a profession, the practice 
of which constitutes an economic activ­
ity. 
The fact that the governing bodies of a 
Bar are composed exclusively of 
members of the Bar elected solely by 
members of the profession, and that in 
adopting acts such as that regulation, 
the Bar is not required to do so by 
reference to specified public-interest 
criteria, supports the conclusion that 
such a professional organisation with 
regulatory powers cannot escape the 
application of Article 85 of the Treaty 
(now Article 81 EC). 
Moreover, having regard to its 
influence on the conduct of the 
members of the Bar on the market in 
legal services, as a result of its prohib­
ition of certain multi-disciplinary part­
nerships, that regulation does not fall 
outside the sphere of economic activity. 
It is, moreover, immaterial that the 
constitution of the Bar is regulated by 
public law. According to its very word­
ing, Article 85 of the Treaty applies to 
agreements between undertakings and 
decisions by associations of undertak­
ings. The legal framework within 
which such agreements are concluded 
and such decisions taken, and the 
classification given to that framework 
by the various national legal systems, 
are irrelevant as far as the applicability 
of the Community rules on compe­
tition, and in particular Article 85 of 
the Treaty, are concerned. 
It follows that a regulation concerning 
partnerships between members of the 
Bar and members of other liberal pro­
fessions, adopted by a body such as the 
Bar, must be regarded as a decision 
adopted by an association of undertak-
ings w i th in the meaning of 
Article 85(1) of the Treaty. 
(see paras 58, 60-63, 65-66, 71, 
operative part 1) 
3. Prohibition of multi-disciplinary part­
nerships of members of the Bar and 
accountants, such as that laid down in 
a regulation adopted by the Bar of a 
Member State, is therefore liable to 
limit production and technical deve-
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SUMMARY — CASE C-309/99 
lopment within the meaning of 
Article 85(l)(b) of the Treaty (now 
Article 81(l)(b) EC). 
However, not every agreement 
between undertakings or any decision 
of an association of undertakings 
which restricts the freedom of action 
of the parties or of one of them necess­
arily falls within the prohibition laid 
down in Article 85(1) of the Treaty. 
For the purposes of application of that 
provision to a particular case, account 
must first of all be taken of the overall 
context in which the decision of the 
association of undertakings was taken 
or produces its effects, and more par­
ticularly of its objectives, which are 
here connected with the need to make 
rules relating to organisation, qualifi­
cations, professional ethics, supervision 
and liability, in order to ensure that the 
ultimate consumers of legal services 
and the sound administration of justice 
are provided with the necessary guar­
antees in relation to integrity and 
experience. It has then to be considered 
whether the consequential effects 
restrictive of competition are inherent 
in the pursuit of those objectives. 
Account must be taken of the legal 
framework applicable in the Member 
State concerned, on the one hand, to 
members of the Bar and to the Bar 
which comprises all the registered 
members of the Bar in that Member 
State, and on the other hand, to 
accountants. 
A regulation concerning partnerships 
of members of the Bar with members of 
other liberal professions adopted by a 
body such as the Bar of a Member State 
thus does not infringe Article 85(1) of 
the Treaty, since that body could 
reasonably have considered that that 
regulation, despite the effects restrict­
ive of competition that are inherent in 
it, is necessary for the proper practice 
of the legal profession, as organised in 
the Member State concerned. 
(see paras 90, 97-98, 110, 
operative part 2) 
4. Since it does not carry on any economic 
activity, the Bar of a Member State is 
not an undertaking within the meaning 
of Article 86 of the Treaty (now 
Article 82 EC). Nor can it be catego­
rised as a group of undertakings for the 
purposes of that provision, inasmuch 
as registered members of the Bar of a 
Member State are not sufficiently 
linked to each other to adopt the same 
conduct on the market with the result 
that competition between them is elim­
inated. The legal profession is not 
concentrated to any significant degree, 
is highly heterogenous and characte­
rised by a high degree of internal 
competition. In the absence of suffi­
cient structural links between them, 
members of the Bar cannot be regarded 
as occupying a collective dominant 
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WOUTERS AND OTHERS 
position for the purposes of Article 86 
of the Treaty. 
(see paras 112-114) 
5. Compliance with Articles 52 and 59 of 
the Treaty (now, after amendment, 
Articles 43 EC and 49 EC) is also 
required in the case of rules which are 
not public in nature but which are 
designed to regulate, collectively, self-
employment and the provision of ser­
vices. The abolition, as between 
Member States, of obstacles to freedom 
of movement for persons would be 
compromised if the abolition of State 
barriers could be neutralised by 
obstacles resulting from the exercise 
of their legal autonomy by associations 
or organisations not governed by pub­
lic law. 
(see para. 120) 
6. It is not contrary to Articles 52 and 59 
of the Treaty (now, after amendment, 
Articles 43 EC and 49 EC) for a 
national regulation concerning partner­
ships of members of the Bar with 
members of other liberal professions 
to prohibit any multi-disciplinary part­
nership between members of the Bar 
and accountants, since that regulation 
could reasonably be considered to be 
necessary for the proper practice of the 
legal profession, as organised in the 
country concerned. 
(see para. 123, operative part 4) 
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