Opinion of Advocate General Bobek delivered on 16 September 2020.

• Jurisdiction: European Union
• Celex Number: 62019CC0218
• ECLI: ECLI:EU:C:2020:716
• Date: 16 September 2020
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 16 September 2020(1)

Case C‑218/19

Adina Onofrei

v

Conseil de l’ordre des avocats au barreau de Paris,

Bâtonnier de l’ordre des avocats au barreau de Paris,

Procureur général près la cour d’appel de Paris

(Request for a preliminary ruling from the Cour de cassation (Court of Cassation, France))

(Reference for a preliminary ruling — Free movement of persons — Freedom of establishment — Access to the profession of lawyer — Exemption from training and professional certificate — National practice limiting the exemption to the civil servants having practised national law, on the national territory and in the national civil service)

I. Introduction

1. Ms Adina Onofrei (‘the appellant’) has both Portuguese and Romanian nationality. She holds two Master’s degrees and a Doctorate in law from the Universités Paris 1 and Paris II. She has worked at the European Commission as an administrator for over eight years. She sought to register with the Ordre des avocats au barreau de Paris (‘the Paris Bar’), relying on one of the exemptions that the French legislation provides from the obligation to hold the professional certificate (and thus from the mandatory professional training) for ‘category A civil servants, or persons treated as civil servants in that category, who have performed legal work for at least eight years, in an administration or a public service or an international organisation’.

2. The appellant’s application was rejected by the Paris Bar on the ground that she is neither a member of the French civil service, nor has she been seconded by the French civil service to an international organisation, nor has she practised on the French territory. The decision of the Paris Bar was upheld on appeal, with the stated reason that the appellant had not demonstrated any previous practise of French law. Seised on appeal on points of law, the Cour de cassation (Court of Cassation, France) now inquires as to the compatibility of such national rules, or rather their interpretation and application practice, with Articles 45 and 49 TFEU.

II. Legal framework

3. Article 11 of Loi no 71‑1130 du 31 décembre 1971 portant réforme de certaines professions judiciaires et juridiques (Law No 71‑1130 of 31 December 1971 on the reform of certain judicial and legal professions) (‘Law No 71‑1130’) provides:

‘No person may enter the profession of lawyer if he does not satisfy the following conditions:

1. Be French, a national of a Member State of the European Union or a party to the Agreement on the European Economic Area …;

2. Hold, subject to the regulatory provisions adopted to give effect to Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005, as amended, and to the regulatory provisions concerning persons who have performed certain functions or activities in France, at least a Master’s degree in law or qualifications recognised as equivalent for admission to the profession of lawyer …;

3. Hold the certificate of competence for the profession of lawyer, subject to the regulatory provisions referred to in paragraph 2, or in the context of mutual recognition, the examination laid down in the final subparagraph of the present article;

4. Not have been the perpetrator of acts which gave rise to a criminal conviction for acts contrary to standards of honour, probity or morality;

…

6. Must not personally have been declared bankrupt or have been subject to any other penalty …’

4. Article 98 of Décret no 91‑1197 du 27 novembre 1991 organisant la profession d’avocat (Decree No 91‑1197 of 27 November 1991 on the organisation of the profession of lawyer) (‘Decree No 91‑1197’) provides that ‘The following are exempt from the theoretical and practical training and from the certificate of competence for the profession of lawyer:

1. Notaries, bailiffs, clerks of commercial courts, court administrators and legal agents for the recovery and liquidation of undertakings, former trustees and court administrators, industrial property lawyers and former patent (inventions) lawyers having carried out their functions for at least five years;

2. University lecturers, assistant lecturers and teaching staff, if they hold a doctorate in law, economics or management, supported by five years of legal education in this capacity in training and research units;

3. In-house lawyers who have completed at least eight years of professional practice within the legal department of one or more undertakings;

4. Category A civil servants and former category A civil servants, or persons treated as civil servants in that category, who have performed legal work in that capacity for at least eight years, in an administration or a public service or an international organisation;

5. Lawyers involved for at least eight years in the legal work of a trade union;

6. Lawyers employed by a lawyer, an association or law society, by an office of an advocate or lawyer in the Conseil d’État (Council of State, France) and in the Cour de cassation (Court of Cassation), who have completed at least eight years of professional practice in this capacity after obtaining the title or degree referred to in paragraph 2 of Article 11 of the Law of 31 December 1971 above;

7. Employees of a member of parliament or senator’s assistants who have carried out a legal activity predominantly in a senior capacity for at least eight years in that role;

Persons referred to in paragraphs 3, 4, 5, 6 and 7 may have carried out their activities in several of the functions covered in these provisions provided that the total duration of these activities is at least equal to eight years.’

5. Article 98‑1(1) of the same decree provides that:

‘Persons benefiting from an exemption provided for in Article 98 must have successfully completed, before the selection panel provided for in Article 69, an examination to review their knowledge of professional ethics and regulations …’

III. Facts, national proceedings and questions referred

6. The appellant, who is of Portuguese and Romanian nationality, holds two Master’s degrees and a Doctorate in law from the Universités Paris 1 and Paris II. For more than eight years, she has worked at the European Commission as an administrator, in particular in the Directorate-General for the Internal Market and the Directorate-General for Competition. During that time, she has predominantly dealt with State aid and cartel cases.

7. The appellant sought to register with the Paris Bar. Satisfying apparently all the other conditions of Article 11 of Law No 71‑1130, including the need to have obtained all the required diplomas in law in France, she sought to rely on Article 98(4) of Decree No 91‑1197 in order to claim dispensation from the otherwise mandatory professional certificate, that being the ‘certificat d’aptitude à la profession d’avocat’ (certificate of competence for the profession of lawyer) (‘certificate of competence’).

8. By the same token, she also sought to be exempted from the otherwise mandatory preparatory training which leads to, when successfully completed, that certificate of competence. The Council of the Paris Bar and the President of the Paris Bar explain that that training lasts 18 months, involves an internship in a law firm and comes to an end upon successful completion of a final examination.

9. The appellant takes the view that the work she has performed at the European Commission meets the conditions of the exemption provided for in Article 98(4) of Decree No 91‑1197.

10. However, the Council of the Paris Bar rejected her application because the appellant was neither a member of the French civil service nor was she seconded by the French civil service to an international organisation. In addition, the Council of the Paris Bar also stated that her professional experience was not acquired on French territory.

11. The appellant challenged that decision before the Cour d’appel de Paris (Court of Appeal, Paris, France). By judgment of 11 May 2017, that court upheld the decision. That court held that the professional experience of the appellant must be examined in concreto so as to establish whether the appellant’s experience corresponds to the training, skills and responsibilities inherent in category A civil servants. It further held that it is necessary to ensure the lawyer’s satisfactory knowledge of national law in order to guarantee the full, relevant and effective exercise of the rights of litigants.

12. The Cour d’appel de Paris (Court of Appeal, Paris) then listed the relevant positions that the appellant assumed within the services of the European Commission. It then outlined the specific tasks that the appellant carried out in those positions. On that basis, that court concluded that those tasks did not reveal any application of French law, thereby not warranting the finding that the appellant had actually practised any national law. Thus, the legal practice acquired by the appellant did not correspond to the criteria of Article 98(4) of Decree No 91‑1197.

13. The appellant brought an appeal on a point of law before the Cour de cassation (Court of Cassation). In her view, the judgment of the Cour d’appel de Paris (Court of Appeal, Paris) construed the relevant exemption too restrictively. The interpretation requiring the practice of French law, as well as the professional experience, to have been obtained in France overlooks, in her view, the fact that EU law is part of national law. That leads to indirect discrimination favouring officials of the French civil service, to the detriment of officials of the EU civil service, and constitutes a restriction to the free movement of workers and the freedom of establishment. While acknowledging that the aim of ensuring an effective defence of the rights of litigants is legitimate, the means employed to that effect are not appropriate and go beyond what is necessary to that...