The ECJ’s judgment in Case C-309/99 Wouters – that the Dutch legal regulator was an association of undertakings for the purposes of competition law, but that its prohibition on partnerships between lawyers and accountants nevertheless fell outside Article 101(1) having regard to its context and objectives – was a controversial one.
To some it suggested the emergence in European competition law of a “rule of reason”. Professor Whish preferred to treat it as an example of a standalone doctrine of “regulatory ancillarity” that enabled the courts to overlook the incidentally anticompetitive effects of primarily regulatory measures. Whatever the explanation, it was clear that the ECJ had introduced a doctrine which cut across the express wording of Article 101(1) and allowed measures of certain types to benefit from an unwritten exemption. It was unclear whether that doctrine was a new beginning or an evolutionary dead-end. Continue reading