16.10.1999 EN C 299/15 Official Journal of the European Communities
Appeal brought on 13 August 1999 by the French (As regards the order as to costs:)
Republic against the judgment delivered on 3 June 1999
— Infringement of Article 87(4), alternatively Article 87(6) of by the Third Chamber, Extended Composition, of the
the Rules of Procedure of the Court of First Instance. Court of First Instance of the European Communities in
Case T-17/96 between Télévision Française 1 SA (TF1)
and the Commission of the European Communities sup-(1) Case C-107/95 P Bundesverband der Bilanzbuchhalter v Com-ported by the French Republic mission (1997) ECR I-947.
(Case C-308/99 P)
(1999/C 299/16)
Reference for a preliminary ruling from the Netherlands
Raad van State by judgment of that court of 10 August An appeal against the judgment delivered on 3 June 1999 by1999 in the case of 1. J.C.J. Wouters 2. Council of the Bars the Third Chamber, Extended Composition, of the Court ofand Law Societies of the European Community 3. J.W. First Instance of the European Communities in Case T-17/96Savelbergh 4. Price Waterhouse Belastingadviseurs BV between Télévision Française 1 SA (TF1) and the Commissionand Algemene Raad van de Nederlandse Orde van Advo- of the European Communities supported by the Frenchcaten Republic was brought before the Court of Justice of the
European Communities on 13 August 1999 by the French
(Case C-309/99) Republic, represented by Kareen Rispal-Bellanger and Frédérik
Million, acting as Agents, with an address for service in
(1999/C 299/17) Luxembourg at the French Embassy, 8b Boulevard Joseph II.
Reference has been made to the Court of Justice of the
The appellant claims that the Court should: European Communities by a judgment of the Netherlands
Raad van State (Council of State) of 10 August 1999, whichwas received at the Court Registry on 13 August 1999, for a — set aside point 2 (in so far as it is conceded that the action
preliminary ruling in the case of 1. J.C.J. Wouters, 2. Council under Article 90 of the EC Treaty (now Article 86 EC) is
of the Bars and Law Societies of the European Community 3. admissible) and point 6 of the operative part of the
J.W. Savelbergh 4. Price Waterhouse Belastingadviseurs BV judgment under appeal;
against the Algemene Raad van de Nederlandse Orde van
Advocaten (the Netherlands Bar Council) on the following— grant the form of order sought by the Commission at firstquestions:instance.
1.(a) Is the term ‘association of undertakings’ in Article 85(1)
[now Article 81(1)] of the EC Treaty to be interpreted asPleas in law and main argumentsmeaning that there is such an association only if and in
so far as it acts in the undertakings’ interest, so that in
applying that provision a distinction must be made (As regards the admissibility of the action under Article 90:)
between activities of the association carried out in the
public interest and other activities, or is the mere fact— The Court of First Instance erred in law and in its legalthat an association can also act in the undertakings’characterisation of the facts: The admissibility of an actioninterest sufficient for it to be regarded as an associationfor failure to act is subject to the existence of a duty to act.of undertakings within the meaning of the provision inUnder the Treaty, the Commission is under no obligationrespect of all its actions? Is the fact that the universallyto act pursuant to Article 90(3). That provision confersbinding rules adopted by the relevant institution areupon it a discretion similar to that which it enjoys in theadopted under a statutory power and in its capacity as aapplication of Article 169 of the EC Treaty (now Articlespecial legislature relevant as regards the application of226 EC).Community competition law?
As a subsidiary plea, the French Government expresses the1.(b) If the answer to Question 1(a) is that there is anview that the Court of First Instance could not haveassociation of undertakings only if and in so far as it actsaccepted the characterisation of an ‘exceptional situation’in the undertakings’ interest, is the question of whenwithin the meaning of the case-law of the Court of Justicethe public interest is being pursued also governed bywithout misconstruing the scope of that concept, which isCommunity law?necessarily very restrictive. Exceptional situations, within
the meaning of the judgment in Bundesverband derBilanzbuchhalter (
1) must, the French Government submits, 1.(c) If the answer to Question 1(b) is that Community law is
relevant, can the adoption under a statutory power by be limited to instances where State measures merely ‘ratify’
(encourage or support) anti-competitive conduct engaged an institution such as the [Netherlands] Bar Association
of universally binding rules, designed to safeguard the in on their own initiative by undertakings caught by Article
90, in order to prevent public intervention of that kind independence and loyalty to the client of lawyers provid-
ing legal assistance, on the formation of co-operative from shielding anti-competitive conduct which is to be
prohibited as a matter of course in accordance with associations between lawyers and members of other
professions be regarded for the purposes of Community Articles 85 and 86 of the EC Treaty (now Articles 81 and
82 EC). law as pursuing the public interest?
C 299/16 EN 16.10.1999 Official Journal of the European Communities
2. If the answers to the first question indicate that a rule such way in which those concerned actually wish to model their
co-operation, with either the provisions on the right of as the [Samenwerkingsverordening — Regulation on the
formation of cooperative associations — 1993] is to be establishment or with those relating to the freedom to
provide services? regarded as a decision of an association of undertakings
within the meaning of Article 85(1) [now Article 81(1)] ofthe EC Treaty, is such a decision, in so far as it adopts8. Does a prohibition on integrated co-operative associationsuniversally binding rules, designed to safeguard the inde-between lawyers and accountants such as the one inpendence and loyalty to the client of lawyers providingquestion constitute a restriction of the right of establish-legal assistance, on the formation of co-operative associ-ment or the freedom to provide services, or both?ations such as the one in question to be regarded as having
as its object or effect the restriction of competition within
9. If it follows from the answer to the previous question that the common market and in that respect affecting trade
one or both of the abovementioned restrictions exists, is between the Member States? What criteria of Community
the restriction in question justified on the ground that it law are relevant to the determination of that issue?
constitutes merely a ‘selling arrangement’ within the
meaning of Keck and Mithouard and therefore there is nodiscrimination, or on the ground that it satisfies the criteria3. Is the term ‘undertaking’ in Article 86 (now Article 82) ofthat have been developed in that respect by the Court ofthe EC Treaty to be interpreted as meaning that where anJustice in other judgments, in particular Gebhard?institution such as the Bar Association must be regarded
as an association of undertakings, that institution mustalso be considered to be an undertaking or group ofundertakings for the purposes of that provision, even
though it pursues no economic activity itself?
4. If the previous question is answered in the affirmative and
it must be held that an institution such as the Bar
Association enjoys a dominant position, does such an Action brought on 13 August 1999 by the Italian Republic
against the Commission of the European Communities institution abuse that position if it regulates the relation-
ships of the lawyers affiliated to it with others on themarket in legal services in a manner which restricts(Case C-310/99)competition?
(1999/C 299/18)
5. If an institution such as the Bar Association is to be
regarded as a whole as an association of undertakings forAn action against the Commission of the European Communi-the purposes of Community competition law, is Articleties was brought before the Court of Justice of the European90(2) [now Article 86(2)] of the EC Treaty to be interpretedCommunities on 13 August 1999 by the Italian Republic,as extending to an institution such as the Bar Associationrepresented by its Agent Professor Umberto Leanza, assistedwhich lays down universally binding rules, designed toby Oscar Fiumara, Avvocato dello Stato, with an addresssafeguard the independence and loyalty to the client offor service in Luxembourg at the Italian Embassy, 5 Ruelawyers providing legal assistance, on co-operationMarie-Adelaïde.between lawyers and members of other professions?
The applicant claims that the Court should:
6. If an institution such as the Bar Association is to be
regarded as an association of undertakings or an undertak-— annul the decision of the Commission of the Europeaning or group of undertakings, do Article 3g, the secondCommunities of 11 May 1999 No C(1999)1364 final (
1),paragraph of Article 5 and Articles 85 and 86 (nowin so far as it is contested in the present action;Articles 3g, 10, 81 and 82) of the EC Treaty preclude a
Member State from providing that (an agency of) that
— in the alternative, annul the said decision in so far as it institution may adopt rules concerning inter alia co-
provides for the recovery of sums constituting incompat- operation between lawyers and members of other pro-
ible aid; fessions when review by the relevant public authority of
such rules is limited to the power to annul such a rulewithout the authority’s being able to adopt a rule in its— order the Commission of the European Communities tostead?pay the costs.
7. Are both the Treaty provisions on the right of establish-Pleas in law and main argumentsment and those on the freedom to provide services
applicable to a prohibition on co-operation betweenlawyers and accountants such as that in question, or is the 1. The Commission’s decision appears to be open to challenge
on the grounds of abuse of power and inadequate (illogical) EC Treaty to be interpreted as meaning that such a
prohibition must comply, depending for example on the statement of reasons in relation to the definition of the