Injunction of dissolution of a competing bar: lack of jurisdiction of the ADLC

 The Paris Court of Appeal confirms thencompetence of
theCompetition Authority
to hear a decision taken by the President of the Bar to oust a newly created competing bar within the jurisdiction of its bar.

Creation of a competing bar and reaction of the President of the Bar

On 21 January 2020, two lawyers registered with the Marseille Bar created the Bar of Provence and the Mediterranean – Eutopia (BPME) by declaration of incorporation with the Marseille Court of Justice.

On April 19, 2022, the President of the Marseille Bar sent them a letter ordering the dissolution of the OSME. This letter mentioned that disciplinary and criminal proceedings could be initiated if they did not comply with this injunction.

Referral to the Competition Authority by the OSME

On 30 May 2022, the statutory President of the OSME seized the Competition Authority arguing that this injunction was a maneuver to exclude it from the legal services market and constituted anti-competitive practices (abuse of domain position and anti-competitive agreements). This referral was accompanied by a request for provisional measures.

By Decision No.22-D-18 of 14 October 2022, the Competition Authority declares this referral inadmissible, and rejects the request for provisional measures. It recalls in particular that:

• its jurisdiction does not extend to administrative acts or decisions on the organization of the public service, which fall within the jurisdiction of the administrative judge;

• professional orders, such as bars, are invested with public service missions and have prerogatives of public authority.

Competence of the President of the Bar and public service role

In this case, it considered that the letter sent by the President of the Marseille Bar was part of the legitimate exercise of his prerogatives, aimed at enforcing the ethical rules. It therefore concluded that the President of the Bar did not exceed his powers and that the actions taken did not constitute a manifest abuse of his prerogatives.

OSME therefore appealed against this decision to the Paris Court of Appeal, considering that by behaving in this way, the President of the Bar would have carried out an exercise “manifestly inappropriate” of its disciplinary power not related to the exercise of its prerogatives of public authority.

However, the Court of Appeal of Paris recalls in accordance with the case law of the Court of Cassation that the finding of the exercise by the President of the Bar of his prerogatives of public authority in the context of the decision which is the subject of the dispute is sufficient to exclude the jurisdiction of the Competition Authority.

Confirmation of the lack of jurisdiction of the ADLC by the Court of Appeal

As a reminder, the President of the Bar has the prerogatives of public authority conferred by the 1971 law governing the profession of lawyer in France and its 1991 decree, which govern the ethical rules and the organization of bar associations.

In the exercise of the missions devolved to him, the President of the Bar has the power to seize the disciplinary commission with regard to the lawyers of his bar. Also, when he threatens to initiate proceedings or issues a prior injunction, he obviously exercises public authority prerogatives.

The Court of Appeal then upholds the decision the Competition Authority, stressing that the President of Marseille was acting within the framework of his public service functions and that his actions did not fall within the competence of the Competition Authority. The Court also rejected the requests for provisional measures by the OSME, considering them as ancillary to a referral on the merits deemed inadmissible.

(Court of Appeal, Paris, Division 5, Chamber 7, 16 January 2025 – No. 22/17546)