University of Groningen
Book review of Ida Wendt, EU Competition Law and Liberal Professions: an Uneasy
Relationship? Leiden: Brill Academic Publishers, 2012
Vedder, Hans
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Common Market Law Review
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Vedder, H. (2014). Book review of Ida Wendt, EU Competition Law and Liberal Professions: an Uneasy
Relationship? Leiden: Brill Academic Publishers, 2012. Common Market Law Review, 51(4), 1295-1297.
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COMMON MARKET LAW REVIEW
CONTENTS Vol. 51 No. 4 August 2014
Editorial comments: After the European elections: Parliamentary
games and gambles
1047-1056
Articles
R. Bieber and F. Maiani, Enhancing centralized enforcement of
EU law: Pandora’s Toolbox?
E. Drywood, Who’s in and who’s out? The Court’s emerging case
law on the definition of a refugee
A. Semertzi, The preclusion of direct effect in the recently
concluded EU free trade agreements
C. Volpin, The ball is in your court: Evidential burden of proof and
the proof-proximity principle in EU competition law
1057-1092
1093-1124
1125-1158
1159-1186
Case law
A. Court of Justice
Before the law stands a gatekeeper – Or, what is a “regulatory act”
in Article 263(4) TFEU? Inuit Tapiriit Kanatami,
P.-A. Van Malleghem and N. Baeten
Persecution for reason of sexual orientation: X, Y and Z,
M. den Heijer
Secret evidence and due process rights under EU law: ZZ,
N. de Boer
Sneak preview of the future application of European competition
law on the Internet?: Cisco and Messagenet, I. Graef
1217-1234
Book reviews
1281-1310
Survey of Literature
1311-1332
1187-1216
1235-1262
1263-1280
Aims
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COMMON MARKET LAW REVIEW
COMMON MARKET LAW REVIEW
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Siofra O’Leary, Wulf-Henning Roth, Ben Smulders, Stefaan Van den Bogaert
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Kieran Bradley, Luxembourg
Alan Dashwood, Cambridge
Jacqueline Dutheil de la Rochère, Paris
Claus-Dieter Ehlermann, Brussels
Giorgio Gaja, Florence
Walter van Gerven, Leuven
Roger Goebel, New York
Daniel Halberstam, Ann Arbor
Gerard Hogan, Dublin
Laurence Idot, Paris
Francis Jacobs, London
Jean-Paul Jacqué, Brussels
Pieter Jan Kuijper, Amsterdam
Ole Lando, Copenhagen
Miguel Poiares Maduro, Florence
Sacha Prechal, Luxembourg
Gil Carlos Rodriguez Iglesias, Madrid
Allan Rosas, Luxembourg
Eleanor Sharpston, Luxembourg
Piet Jan Slot, Amsterdam
John Spencer, Cambridge
Christiaan W.A. Timmermans, Brussels
Ernö Várnáy, Debrecen
Joachim Vogel†, München
Armin von Bogdandy, Heidelberg
Joseph H.H. Weiler, Florence
Jan A. Winter, Bloemendaal
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Common Market Law Review
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Aims
The Common Market Law Review is designed to function as a medium for the
understanding and analysis of European Union Law, and for the dissemination of legal
thinking on all matters of European Union Law. It thus aims to meet the needs of both the
academic and the practitioner. For practical reasons, English is used as the language of
communication.
Editorial policy
The editors will consider for publication manuscripts by contributors from any country.
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Micr
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Book reviews
1295
Ida E. Wendt, EU Competition Law and Liberal Professions: an Uneasy Relationship? Leiden:
Brill Academic Publishers, 2012. 618 pages. ISBN: 978-90-04-21449-1. EUR 188.
When reviewing this book I was wondering where the time had gone. Wendt initially wrote this
book as a PhD thesis (defended in Maastricht, in 2009). Shortly before she started her research,
the judgment in Wouters (Case C-309/99) was all new, and the Commission has just triggered
a review on the application of the competition rules to the liberal professions. In the meantime,
this topic is no longer at the centre stage of EU competition law. Chasing everyday reality, the
focus is now on technology markets and big pharma. In a way, this shows how fleeting the
attention may be that specific emanations of competition law receive. This must have an
implication for the scholars involved in EU competition law, as such applications invariably
create new questions and challenge vested ideas and the doctrinal integrity of EU competition
1296
Book reviews
CML Rev. 2014
law. Today we could envisage a book that tries to answer the question whether there exists an
uneasy relationship between EU competition law and big ICT firms or the pharmaceutical
industry.
This book, somewhat dated as it may be (the most recent case law cited dates from March
2011), still has its value. It provides a thoroughly reasoned analysis of the application of
competition law to the (self-)regulation of the liberal professions in a way that not only does
justice to the scholars of competition law, but also satisfies the expectations of the members of
those professions. It is research at the crossroads of several debates. Wendt addresses issues
relating to the division of competences between the EU, the Member States, the regulated
entities and consumers, the (perceived) dichotomy between economic and non-economic
objectives and, ultimately, the role of court-made law in a system based on the rule of law. These
issues also arise in relation to the application of EU competition law to – again something of the
past – the energy sector, and the current application to the pharmaceutical industry or ICT
firms.
In relation to the liberal professions, the judgment in Wouters plays a central role. It is not
only analysed in relation to the question of the relation between EU competition law and the
liberal professions, it is also analysed as an attempt by the ECJ to engage in law making in this
political, economic and societal minefield. In a minefield, one had better tread lightly, and this
is exactly what the Court appears to have done in Wouters. The author, however, fortunately
feels no need to tread lightly, and suggests the application of EU competition law. At the same
time, democratically legitimized rules should escape competition law scrutiny.
With this in mind, Wendt’s analysis of Wouters is clear: she characterizes it as a contra legem
solution (p. 303). Indeed, Wouters defies existing legal categories, making it a self-contained
addition to the doctrine on Article 101 TFEU. The problem, however, is that Wouters could have
been a one-off. A simple docket-control mechanism employed by a Court that was faced with a
Commission exemption monopoly and a desire not to be bothered with myriad similar cases.
However, anyone who has studied the aftermath of Keck knows the fate of such attempts by the
Court and indeed the Wouters-exception has consistently recurred in the jurisprudence
(Meca-Medina (Case C-519/04 P), cited in the book, OTOC (Case C-1/12) and CNG (Case
C-136/12), both more recently). So Wouters was meant to stay, even after the Commission lost
its monopoly on the application of Article 101(3) TFEU and after the Court itself had declared
that provision to be directly effective (Case C-439/09, Pierre Fabre).
How then are we to understand something like Wouters and what does it tell us about future
hard cases that will invariably present themselves before the ECJ? To characterize something as
contra legem because it doesn’t fit into our understanding of the law equates this concept to
undoctrinal. Yet another term is coined by General Court Judge Marc van der Woude in his
preface when he recalls that this judgment had been called “opportunistic”. Far worse is the
characterization of this judgment as “surprising”.
Competition law and the effects of its application to any sector in which there are market
failures are far too important to be left to “surprising” judgments. In fact, studies have shown
that the effect of the application of unclear competition law is the creation of excessive red tape,
which can only be to de detriment of the very efficiency and consumer welfare it purports to
protect. In this regard it is good to see that Wendt’s analysis of Wouters as contra legem is just
the starting point for the construction of a model that makes sense of it all and reduces the
element of surprise in the application of the law. In this regard, it could serve as an example for
current or future research on the (un)easiness of the applications of competition law to other
sectors and economic activities.
At times, the book feels a bit “over structured” with paragraph headings to six levels; another
minor quibble concerns the (few) typos and grammatical errors in the text. On a similar note,
some pages consist of footnotes, begging the question what could possibly be so extraordinary
that it did not warrant discussion in the main text but still needed mentioning in small print?
Apart from that, the book is well-researched, contains a wealth of references to relevant acts and
legislation in various Member States and provides a clear and accessible analysis and review of
Book reviews
1297
the law. As an account of a scholar making sense of undoctrinal jurisprudence, it is a timeless
contribution to legal research.
Hans Vedder
Groningen
COMMON MARKET LAW REVIEW
COMMON MARKET LAW REVIEW
Editors: Thomas Ackermann, Loïc Azoulai, Michael Dougan, Christophe Hillion,
Siofra O’Leary, Wulf-Henning Roth, Ben Smulders, Stefaan Van den Bogaert
Subscription information
Online subscription prices for 2014 (Volume 51, 6 issues) are: EUR 722/USD 1024/
GBP 533. Print subscription prices for 2014 (Volume 51, 6 issues):
EUR 764/USD 1080/GBP 561
Personal subscription prices at a substantially reduced rate are available upon request. Please
contact our sales department for further information at +31 172641562 or at sales@kluwerlaw.
com.
Advisory Board:
Ulf Bernitz, Stockholm
Kieran Bradley, Luxembourg
Alan Dashwood, Cambridge
Jacqueline Dutheil de la Rochère, Paris
Claus-Dieter Ehlermann, Brussels
Giorgio Gaja, Florence
Walter van Gerven, Leuven
Roger Goebel, New York
Daniel Halberstam, Ann Arbor
Gerard Hogan, Dublin
Laurence Idot, Paris
Francis Jacobs, London
Jean-Paul Jacqué, Brussels
Pieter Jan Kuijper, Amsterdam
Ole Lando, Copenhagen
Miguel Poiares Maduro, Florence
Sacha Prechal, Luxembourg
Gil Carlos Rodriguez Iglesias, Madrid
Allan Rosas, Luxembourg
Eleanor Sharpston, Luxembourg
Piet Jan Slot, Amsterdam
John Spencer, Cambridge
Christiaan W.A. Timmermans, Brussels
Ernö Várnáy, Debrecen
Joachim Vogel†, München
Armin von Bogdandy, Heidelberg
Joseph H.H. Weiler, Florence
Jan A. Winter, Bloemendaal
Miroslaw Wyrzykowski, Warsaw
Associate Editor: Alison McDonnell
Common Market Law Review
Europa Instituut
Steenschuur 25
2311 ES Leiden
The Netherlands
tel. + 31 71 5277549
e-mail: [email protected]
fax: + 31 71 5277600
Aims
The Common Market Law Review is designed to function as a medium for the
understanding and analysis of European Union Law, and for the dissemination of legal
thinking on all matters of European Union Law. It thus aims to meet the needs of both the
academic and the practitioner. For practical reasons, English is used as the language of
communication.
Editorial policy
The editors will consider for publication manuscripts by contributors from any country.
Articles will be subjected to a review procedure. The author should ensure that the
significance of the contribution will be apparent also to readers outside the specific
expertise. Special terms and abbreviations should be clearly defined in the text or notes.
Accepted manuscripts will be edited, if necessary, to improve the general effectiveness of
communication.
If editing should be extensive, with a consequent danger of altering the meaning,
the manuscript will be returned to the author for approval before type is set.
Submission of manuscripts
Manuscripts should be submitted, together with a covering letter, to the Associate Editor.
At the time the manuscript is submitted, written assurance must be given that the article
has not been published, submitted, or accepted elsewhere. The author will be notified of
acceptance, rejection or need for revision within three to nine weeks.
Authors may be requested to submit a hard copy of their manuscript, in addition to a
digital copy, together with a summary of the contents. Articles should preferably be no longer
than 28 pages (approx. 9,000 words). Annotations should be no longer than 10 pages (approx.
3,000 words). The title of an article should begin with a word useful in indexing and
information retrieval. Short titles are invited for use as running heads. All notes should be
numbered in sequential order, as cited in the text, *Except for the first note, giving the
author’s affiliation.The author should submit biographical data, including his or her current
affiliation.
© 2014 Kluwer Law International. Printed in the United Kingdom.
Further details concerning submission are to be found on the journal’s website
http://www.kluwerlawonline.com/productinfo.php?pubcode=COLA
Payments can be made by bank draft, personal cheque, international money order, or UNESCO
coupons.
Subscription orders should be sent to:
All requests for further information
and specimen copies should be addressed to:
Kluwer Law International
c/o Turpin Distribution Services Ltd
Stratton Business Park
Pegasus Drive
Biggleswade
Bedfordshire SG18 8TQ
United Kingdom
e-mail: [email protected]
Kluwer Law International
P.O. Box 316
2400 AH Alphen aan den Rijn
The Netherlands
fax: +31 172641515
or to any subscription agent
For Marketing Opportunities please contact [email protected]
Please visit the Common Market Law Review homepage at http://www.kluwerlawonline.com
for up-to-date information, tables of contents and to view a FREE online sample copy.
Consent to publish in this journal entails the author’s irrevocable and exclusive authorization
of the publisher to collect any sums or considerations for copying or reproduction payable by
third parties (as mentioned in Article 17, paragraph 2, of the Dutch Copyright act of 1912 and
in the Royal Decree of 20 June 1974 (S.351) pursuant to Article 16b of the Dutch Copyright
act of 1912) and/or to act in or out of court in connection herewith.
Micr
and Micr
editions of this journal are available from University
International, 300 North Zeeb Road, Ann Arbor, MI 48106, USA.
The Common Market Law Review is indexed/abstracted in Current Contents/Social &
Behavioral Sciences; Current Legal Sociology; Data Juridica; European Access; European
Legal Journals Index; IBZ-CD-ROM: IBZ-Online; IBZ-lnternational Bibliography of Periodical literature on the Humanities and Social Sciences; Index to Foreign Legal Periodicals;
International Political Science Abstracts; The ISI Alerting Services; Legal Journals Index;
RAVE; Social Sciences Citation Index; Social Scisearch.