The EU, and the European Commission in particular, has always had to walk a tightrope, balancing the need to bring down barriers to the internal market against the need to respect legitimate national and cultural differences. Arguably, it has wobbled, if not fallen off, a few times, and opinions on its successes and failures are often coloured by one's own heritage.


Try to convince a Belgian that there is any merit in allowing something that is largely made of animal fat to be called chocolate. Yet some Brits would defend it as vociferously as the pound, if not more so. When it comes to regulated professions throughout the EU, we see the same variety of opinion between EU countries as to what should be regulated, or even protected. In some countries, the professions include various crafts and tradesmen, subject to all sorts of rules on what they can and cannot do, just as guild members were in Mediaeval times.



A case in point is that of the German 'profession' of chimney sweep. Chimney sweep practices are often kept in the family and can be lucrative businesses. One of the reasons they are profitable is because there are rules that limit the number of professionals who can operate in a particular region and the number of employees they are allowed to have.



Although there are rumours that an Italian is about to be welcomed into the profession, chimney sweeps from other EU countries are on the whole prevented from providing these services in Germany. The commission wants to ensure that the market is open to competition by brushing aside such restrictions.



Some may see this as the commission putting in far more effort than the ensuing benefits would justify - there will be a negligible impact on community trade; there probably is not a wave of Polish or Austrian chimney sweeps waiting to flood over the border. But despite these objections, there are important points of principle - fundamental to European law - that the commission must defend. National rules like these, which constitute disguised protectionism, can only be permitted for good reasons.



This matters to lawyers, because lawyers were among the first professionals to take advantage of these rights under the Treaty of Rome 1957.



The freedom of establishment and freedom to provide services cross-border have been key in allowing us to operate in different EU countries - and to complain when things do not go as they should.



And because the EU has to find the all-important balance between dealing with protectionism while respecting national sensitivities, it has had sometimes to be pragmatic in moving these freedoms forward where it could. The classic example of this is the different way in which property is bought and sold in the different member states.



For example, solicitors in England and Wales can only dream of the kind of monopoly on conveyancing enjoyed by notaries in most continental jurisdictions. DIY conveyances are not possible; nor can you negotiate with your notary on cost, as they all charge more or less the same amount.



On top of this, there are limits as to how many licences are granted, thereby restricting the number of notarial practices that exist in any particular region, and many EU member states retain restrictions that limit notarial practice to their own nationals.



Up to now, however, the commission has been wary of tackling the notarial monopoly because notaries in most countries are counted as state employees and therefore exempt from the chill winds of European competition policy.



However, not content with putting the wind up the German chimney sweeps, the commission, in a bold and controversial move, last month decided to take the first small step in challenging the way in which the notarial profession operates.



In the first stage of the pre-litigation procedure, the commission has requested that 16 of the 25 member states explain why their nationality requirements are necessary. Predicting the notaries' response is not difficult, as they have faced similar challenges in the past and use the defence of 'acting under official authority' as a means of justifying why internal market rules, which apply to a whole host of other professions, should not apply to them.



At the same time the commission's competition directorate-general has commissioned a study on best practice with regard to regulation of the conveyancing market - clearly a market where the notarial professions dominate. The study will look at 20 different jurisdictions, including England and Wales, to draw some parallels between levels of regulation and efficiency, and the Law Society has been asked to contribute to this process.



The commission's role as 'guardian of the treaties' is to enforce the obligations that member states agree to and pursue them when it believes they have not fulfilled those obligations. However, playing the role of honest broker is not always easy when competing interests are pushing from all sides, and the member states start to flex their muscles.



Thankfully, the European Court of Justice is often there as a final arbiter when the commission finds its hands are tied. There are no guarantees of where either the competition cases or the best practice study will end up, but you can be sure that both the Law Society and the profession more generally, will be keeping a close eye on the commission and its work in this direction. Maybe chimney sweeps are lucky after all.



June O'Keeffe is head of the Law Society's Brussels office