Christine Morgenbesser v Consiglio dell'Ordine degli avvocati di Genova.

• Jurisdiction: European Union
• Celex Number: 62001CJ0313
• ECLI: ECLI:EU:C:2003:612
• Docket Number: C-313/01
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 13 November 2003

Case C-313/01


Christine Morgenbesser
v
Consiglio dell'Ordine degli avvocati di Genova


(Reference for a preliminary ruling from the Corte suprema di cassazione (Italy))

«(Freedom of establishment – Enrolment in the register of praticanti – Recognition of diplomas – Access to regulated professions)»

Opinion of Advocate General Stix-Hackl delivered on 20 March 2003

Judgment of the Court (Fifth Chamber), 13 November 2003

Summary of the Judgment

1..

Freedom of movement for persons – Freedom of establishment – Lawyers – Practice of the profession on a permanent basis in a Member State other than that in which the qualification was acquired – Directive 98/5 – Scope – Trainee lawyer – Not included

(Directive 98/5 of the European Parliament and the Council)

2..

Freedom of movement for persons – Freedom of establishment – Workers – Recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration – Scope of Directive 89/48 – Concept of regulated profession – Trainee lawyer – Not included

(Council Directive 89/48)

3..

Freedom of movement for persons – Freedom of establishment – Lawyers – Access to the profession – Enrolment of trainee lawyers in the professional register – Requirement of a law degree issued, confirmed or recognised as equivalent by the authorities of the Member State concerned – Not permissible

(Arts 39 EC and 43 EC)

1.

Directive 98/5 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained concerns only lawyers fully qualified as such in their Member State of origin, and therefore does not apply to persons who have not yet acquired the professional qualification necessary to practise the profession of lawyer but are carrying out a period of practice necessary for admission to the bar. see para. 45

2.

A profession must be regarded as regulated, within the meaning of Directive 89/48, on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration, where access to, or pursuit of, the professional activity in question is governed by laws, regulations or administrative provisions that create a system under which that professional activity is expressly reserved for those who fulfil certain conditions and access to it is prohibited to those who do not fulfil them. However, even if it is reserved for persons who fulfil certain conditions and prohibited to those who do not, the period of practice necessary for admission to the bar cannot be regarded as a regulated profession within the meaning of Directive 89/48, since it is limited in time and is designed to constitute the practical part of the training necessary for access to the profession of lawyer, and, unless an aptitude test is passed before that period expires, pursuit of the activities carried out during that period is not authorised. see paras 49-52

3.

Community law precludes the authorities of a Member State from refusing to enrol the holder of a legal diploma obtained in another Member State in the register of persons undertaking the necessary period of practice for admission to the bar solely on the ground that it is not a legal diploma issued or confirmed by a university of the first State. Recognition, for academic and civil purposes, of the equivalence of a diploma obtained in one Member State may be relevant, and even decisive, for enrolment with the bar of another Member State. However, the taking into account of the diploma of the person concerned must be carried out in the context of the assessment of the whole of the training, academic and professional, which that person is able to demonstrate. In that respect, it is the duty of the competent authority to examine whether, and to what extent, the knowledge certified by the diploma granted in another Member State and the qualifications or professional experience obtained there, together with the experience obtained in the Member State in which the candidate seeks enrolment, must be regarded as satisfying, even partially, the conditions required for access to the activity concerned. see paras 64, 66-67, 72, operative part

JUDGMENT OF THE COURT (Fifth Chamber)
13 November 2003 (1)

((Freedom of establishment – Enrolment in the register of praticanti – Recognition of diplomas – Access to regulated professions))

In Case C-313/01,

REFERENCE to the Court under Article 234 EC by the Corte suprema di cassazione (Italy) for a preliminary ruling in the proceedings pending before that court between Christine Morgenbesser

and

Consiglio dell'Ordine degli avvocati di Genova, on the interpretation of Articles 10 EC, 12 EC, 14 EC, 39 EC, 43 EC and 149 EC,

THE COURT (Fifth Chamber),,

composed of: D.A.O. Edward (Rapporteur), acting for the President of the Fifth Chamber, A. La Pergola and S. von Bahr Judges, Advocate General: C. Stix-Hackl,
Registrar: L. Hewlett, Principal Administrator,

after considering the written observations submitted on behalf of:

─

Ms Morgenbesser, by G. Borneto, avvocato,

─

the Italian Government, by I.M. Braguglia, assisted by G. Fiengo, avvocato dello Stato,

─

the Danish Government, by J. Molde, acting as Agent,

─

the Commission of the European Communities, by E. Traversa and M. Patakia, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Ms Morgenbesser, represented by G. Conte, avvocato, and G. Borneto, of the Consiglio dell'Ordine degli avvocati di Genova, represented by M. Condinanzi, avvocato, of the Italian Government, represented by A. Cingolo, avvocato dello Stato, and of the Commission, represented by E. Traversa, at the hearing on 16 January 2003,

after hearing the Opinion of the Advocate General at the sitting on 20 March 2003,

gives the following

Judgment

1

By order of 19 April 2001, received at the Court on 8 August 2001, the Corte suprema di cassazione (Supreme Court of Cassation) referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Articles 10 EC, 12 EC, 14 EC, 39 EC, 43 EC and 149 EC.

2

That question was raised in connection with an appeal by Ms Morgenbesser against the decision of the Consiglio Nazionale Forense (National Bar Council) (Italy), confirming the decision of the Consiglio dell'Ordine degli avvocati di Genova (Bar Council of Genoa) to refuse her enrolment in the register of praticanti.

Legal background

3

Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (OJ 1989 L 19, p. 16) applies, according to Article 2 thereof, to any national of a Member State wishing to pursue a regulated profession in a host Member State in a self-employed capacity or as an employed person.

4

According to Article 1 of Directive 89/48: For the purposes of this Directive the following definitions shall apply:

(a)

diploma: any diploma, certificate or other evidence of formal qualifications or any set of such diplomas, certificates or other evidence:

─

which has been awarded by a competent authority in a Member State, designated in accordance with its own laws, regulations or administrative provisions;

─

which shows that the holder has successfully completed a post-secondary course of at least three years' duration, or of an equivalent duration part-time, at a university or establishment of higher education or another establishment of similar level and, where appropriate, that he has successfully completed the professional training required in addition to the post-secondary course, and

─

which shows that the holder has the professional qualifications required for the taking up or pursuit of a regulated profession in that Member State, provided that the education and training attested by the diploma, certificate or other evidence of formal qualifications were received mainly in the Community ... ...

...

(c)

a regulated profession: the regulated professional activity or range of activities which constitute this profession in a Member State;

(d)

regulated professional activity: a professional activity, in so far as the taking up or pursuit of such activity or one of its modes of pursuit in a Member State is subject, directly or indirectly by virtue of laws, regulations or administrative provisions, to the possession of a diploma. The following in particular shall constitute a mode of pursuit of a regulated professional activity:

─

pursuit of an activity under a professional title, in so far as the use of such a title is reserved to the holders of a diploma governed by laws, regulations or administrative provisions, ...

...

(f)

adaptation period: the pursuit of a regulated profession in the host Member State under the responsibility of a qualified member of that profession, such period of supervised practice possibly being accompanied by further training. This period of supervised practice shall be the subject of an assessment. The detailed rules governing the adaptation period and its assessment as well as the status of a migrant person under supervision shall be laid down by the competent authority in the host Member States;

(g)

aptitude test: a test limited to the professional knowledge of the applicant, made by the competent authorities of the host...