We have read that Chris Kenny, chief executive of the Legal Services Board, thinks that the £20m it will take to set up the LSB is not a ‘real issue’ – presumably just small change. Well, I hope that he keeps a penny or two out of it to pay for a minion to keep an eye on what is happening in Europe. That is because the European Court of Justice has been having its own debate about alternative business structures (ABSs), and in what circumstances they should be allowed to be exported across the EU’s internal market. Its most recent decision, just a few weeks ago, has struck a blow against export, and it should make all who are thinking of becoming ABSs in the future sit up and pay attention.

It began in 2005 in the opticians’ case where the court held that Greece could not maintain a law requiring 50% ownership by a qualified optician of an optician’s shop if non-optician investors from outside Greece wanted to buy into the opticians’ market. The Greek government’s claim of public health risks received short shrift from the court.

Then came the pharmacists’ case in the middle of May 2009 – actually, there were two cases, one involving Italy (case C 531/06) and one Germany (joined cases C 171/07 and C 172/07), but they each came to the same conclusion. Italy and Germany both have laws outlawing the running of pharmacies by non-pharmacists, and the issue was whether their laws were compatible with European law. Non-pharmacist-owned outsiders wanted to move in on the market.

This time, the court said that Italy and Germany could keep out the non-pharmacist-owned outsiders, on the grounds that they might represent a risk to public health. The court went out of its way to say that pharmacists are different from non-pharmacists because their training, professional experience and the responsibility they owe provided safeguards and moderated the profit instinct.

The court had no difficulty in distinguishing pharmacists from opticians, either, on the grounds that wrongly consumed medicines can be seriously dangerous to your health, without your realising in advance, and that unjustified sales of medicines affect the public purse much more than unjustified sales of glasses.

The question that arises is what will happen if and when a case eventually makes its way to the court in relation to non-lawyer-owned law firms. The position regarding lawyers is somewhat different. The European legislation concerning the free movement of lawyers across European borders – article 11(5) of the Establishment Directive – already enables a member state to keep out non-lawyer-owned law firms. The German Federal Bar wrote to our parliament in 2006 (here, at page 289) to say that ABSs would infringe professional rules in Germany. But, if a decision to keep out law firm ABSs is made and then challenged, will the court consider lawyers to be more like opticians (that is, not very important to the public good and the public purse) or like pharmacists (very important)?

I am sure that we all want to be more like pharmacists – essential to democracy and the rule of law, the administration of justice, the public purse through legal aid, and so on. But, if ABSs are to be exportable in Europe, it is in the interests of the LSB to make us more like opticians – not very important to anything at all.

So, Mr Kenny, please spend our money well as the LSB draws up the rules which will decide whether lawyers are to be more like opticians or pharmacists. Our identity rests on it.

Jonathan Goldsmith is the Secretary General of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies