MDPs, 'Spinning,' and Wouters v. Nova

Abstract:     
In February 2002, the European Court of Justice issued its opinion in Wouters v. NOVA (Case C-309/99), which addressed a Netherlands Bar rule that prohibited multidisciplinary partnerships (MDPs) between lawyers and accountants. Wouters decided: 1) that the bar was an undertaking that was subject to the competition (antitrust) provision in the EU Treaty; 2) that the Dutch MDP ban restricted competition and that this restriction on competition was appreciable and affected intra-community trade; 3) that the Dutch MDP ban could reasonably be considered necessary in order to ensure the proper practice of the legal profession; and 4) that it was reasonable for the Dutch Bar to conclude that its objectives could not be attained by less restrictive means.

This article, which was written two weeks after the Wouters decision for an MDP Symposium, contends that the Wouters case is extremely significant for the European legal profession. After summarizing the facts of Wouters v. NOVA case, which I first addressed in Laurel S. Terry & Clasina B. Houtman Mahoney, What If...? The Consequences of Court Invalidation of Lawyer - Accountant Multidisciplinary Partnership Bans in Private Investments Abroad - Problems & Solutions in International Business in 1998, Chap. 7 (Matthew Bender 1999), this article continues by noting that much of the publicity connected with the Wouters case has focused on the rulings about MDPS. This publicity has focused on the blow Wouters gave to the MDP movement. This article contends that the more significant rulings are the first two rulings noted above. These rulings are extremely important because they articulate significant conditions to bars' abilities to regulate lawyers. The article also argues that bars should not expect to have all decision-makers in the future act as this European Court of Justice did in deferring so completely to the bars' judgment about whether a rule is necessary and whether an objective could be attained by less restrictive means.

Keywords: Lawyers, legal ethics, MDPs, Wouters v. Nova, trade in legal services, CCBE, EU, EU competition, article 85(1)

JEL Classifications: I8, I84, K33, N70

Accepted Paper Series