WRITTEN QUESTION E-3677/00

by Toine Manders (ELDR) to the Commission

(29 November 2000)

Subject: Cooperation between lawyers and accountants

The European Court of Justice (ECJ) will shortly be hearing a matter referred to it by the Dutch Council of State. The ECJ is being asked to give a preliminary ruling on the compatibility, with the provisions of the EC Treaty on competition, freedom to provide services and the right of establishment, of a regulation promulgated by the Dutch Bar (the Nederlandse Orde van Advocaten).

The Dutch Bar regulation, while authorising Bar members to enter into fully integrated partnerships with notaries, patent agents and tax consultants, prohibits Bar members from having any cooperation with (any number of) accountants that involves any degree of fee sharing or any use of a common name.

The European Parliament understands that the Commission in its submission to the Court of Justice may have taken the position that the aforementioned prohibition is legitimate as it is imposed in the general interest to protect clients and third parties. It is hard to believe that such a selective prohibition is either necessary or proportionate as it presumes that any cooperation of a Bar member with (any number of) accountants poses insurmountable problems for the Bar member's profession. This presumption would seem untenable.

In several Member States, including, inter alia, Germany and Spain, Bar members are permitted to enter into cooperation with accountants. In addition, the Law Society of England and Wales recently announced its intention to permit such cooperations. Furthermore, the Dutch Ministries of Justice and Economic Affairs, in a special report released in July 1999, concluded that inter-professional cooperation between notaries, tax consultants, Bar members and accountants should be allowed.

Will the Commission explain why it believes that the total ban imposed by the Dutch Bar is justified or necessary and, in particular, why there are no alternative solutions that are less restrictive to such a total ban? Furthermore, how does the Commission reconcile this position with the freedom (and proposed freedom) to establish cooperation arrangements between Bar members and accountants in Germany, Spain and the UK?

Answer given by Mr Bolkestein on behalf of the Commission

(10 January 2001)

The ban in question may be justified by the overriding reasons relating to the public interest, i.e. the lawyer's independence and professional secrecy for active client protection. Nor does the ban seem disproportionate since we do not envisage any less restrictive measure. More particularly, a separation within the group does not give an adequate guarantee while there remains a conflict of interests.

Moreover, Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 on lawyers right of establishment(1) recognises that such prohibitions are justified by the general interest to protect clients and third parties (Article 11(5), second subparagraph, which refers back to paragraph 1 of the same Article). This subparagraph was added at Parliament's request.

The Directive provides for the Members States to impose this ban, but they are under no obligation to do so. Similarly, although Article 43 (ex Article 52) of the EC Treaty does not oppose this ban, nor does it impose it.

(1) Directive to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ L 77, 14.3.1998).