Grand Duchy of Luxemburg v European Parliament and Council of the European Union.

• Jurisdiction: European Union
• Celex Number: 61998CC0168
• ECLI: ECLI:EU:C:2000:100
• Court: Court of Justice (European Union)
• Docket Number: C-168/98
• Date: 24 February 2000
• Procedure Type: Recurso de anulación - infundado

Important legal notice

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61998C0168

Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 24 February 2000. - Grand Duchy of Luxemburg v European Parliament and Council of the European Union. - Action for annulment - Freedom of establishment - Mutual recognition of diplomas - Harmonisation - Obligation to state reasons - Directive 98/5/EC - Practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was acquired. - Case C-168/98.

European Court reports 2000 Page I-09131

Opinion of the Advocate-General

I - Introduction

1 The Grand Duchy of Luxembourg has brought this action again Directive 98/5/CE of the European Parliament and of the Council of 16 February 1998 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 (1) (hereafter `the Directive'), which was passed with the support of the fourteen other Member States in the Council and with the approval of the Parliament, on the ground that it ought to have been adopted unanimously at the end of the consultation period.

According to Luxembourg, the Directive amends the legal principle that access to the profession of lawyer in a particular Member State is subject to the candidate's acquisition of sufficient knowledge and experience in the law of that State.

Luxembourg also criticises the fact that the Directive would lead to discrimination in a Member State against lawyers who are nationals of that Member State as opposed to their migrant colleagues, and in addition alleges that insufficient reasons were provided for the Directive.

II - Legislative development prior to the Directive

2 The contested Directive forms part of the development in the law intended to give effect to the freedom of movement established in the EC Treaty with regard to the legal profession.

Directive 77/249/EEC

3 The trail-blaze in this direction was Council Directive 77/249/CEE of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (2) (hereafter `Directive 77/249'). That directive, adopted on the basis of what were then Articles 57 and 66 of the EC Treaty, required each Member State to recognise as a lawyer any professional possessing that title in any other Member State, with the following exceptions:

- a lawyer providing services must practise under his home-country professional title, with an indication of the professional organisation by which he was authorised to practise or the court of law before which he is entitled to practise (Article 3);

- Member States may exclude from the ambit of this rule the preparation of formal documents for obtaining title to administer estates of deceased persons and the drafting of formal documents creating or transferring interests in land (Article 1(2));

- Member States may also require lawyers intending to pursue activities relating to the representation of clients in legal proceedings to be introduced to the presiding judge and, where appropriate, to the President of the relevant Bar in the host Member State, and/or to work in conjunction with a practising lawyer, `avoué' or `procuratore' in the host Member State.

Directive 89/48/EEC

4 The next step was taken through the adoption on the basis of former Articles 49, 57(1) and 66 of the Treaty of 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 (3) (hereafter `Directive 89/48').

5 Unlike Directive 77/249, Directive 89/48 is general in nature, applying to all regulated professions to the extent that they have not been the subject of specific measures. Directive 89/48 thus establishes that a host Member State may not refuse to authorise the practice by a migrant worker of a regulated profession without considering the equivalence of qualifications which he has gained in his home country (Article 3).

6 Article 4 of Directive 89/48 also authorises the host Member State to require the applicant either:

(a) to provide evidence of professional experience, where the duration of the education and training is at least one year less than that required in the host Member State; or

(b) to complete an adaptation period not exceeding three years or to take an aptitude test, where there are substantial differences between the education and training received and that required in the host Member State.

7 However, in respect of the legal professions, the following sentence was inserted in the second paragraph of Article 4(1):

`By way of derogation from this principle, for professions whose practice requires precise knowledge of national law and in respect of which the provision of advice and/or assistance concerning national law is an essential and constant aspect of the professional activity, the host Member State may stipulate either an adaptation period or an aptitude test.'

All the Member States, except Denmark, opted for establishing an aptitude test.

III - Directive 98/5/EC

8 Following four years of negotiations within the Council, Directive 98/5 was published on 14 March 1998. Its purpose is to facilitate practice of the profession of lawyer on a permanent basis in a self-employed or salaried capacity in a Member State other than that in which the professional qualification was obtained (Article 1(1)).

9 According to the statement of reasons given for that act, the raison d'être of the Directive is not only that, in relation to the general system of recognition established by Directive 89/48, it offers lawyers an easier route by which to join the profession in the host Member State, but also that it meets the needs of the consumers of legal services who, owing to the increasing trade flows resulting from the internal market, seek advice when carrying out cross-border transactions in which international law, Community law and domestic laws often overlap (fifth recital in the preamble to the Directive).

10 A further reason for the Directive is the need to resolve, at Community level, the problem that only a few Member States permit, and in different forms, the practice of the law, otherwise than by way of provision of services, by lawyers from other Member States practising under their home-country professional titles, and the fact that such a diversity of situations leads to inequalities and distortions in competition which restrict freedom of movement (sixth recital).

11 Article 2 of the Directive states:

`Any lawyer shall be entitled to pursue on a permanent basis, in any other Member State under his home-country professional title, the activities specified in Article 5.

Integration into the profession of lawyer in the host Member State shall be subject to Article 10.'

12 By virtue of Article 4 of the Directive:

`1. A lawyer practising in a host Member State under his home-country professional title shall do so under that title, which must be expressed in the official language or one of the official languages of his home Member State, in an intelligible manner and in such a way as to avoid confusion with the professional title of the host Member State.

2. For the purpose of applying paragraph 1, a host Member State may require a lawyer practising under his home-country professional title to indicate the professional body of which he is a member in his home Member State or the judicial authority before which he is entitled to practise pursuant to the laws of his home Member State. A host Member State may also require a lawyer practising under his home-country professional title to include a reference to his registration with the competent authority in that State.'

13 According to Article 5 of the Directive:

`1. Subject to paragraphs 2 and 3, a lawyer practising under his home-country professional title carries on the same professional activities as a lawyer practising under the relevant professional title used in the host Member State and may, inter alia, give advice on the law of his home Member State, on Community law, on international law and on the law of the host Member State. He shall in any event comply with the rules of procedure applicable in the national courts.

2. Member States which authorise in their territory a prescribed category of lawyers to prepare deeds for obtaining title to administer estates of deceased persons and for creating or transferring interests in land which, in other Member States, are reserved for professions other that that of lawyer may exclude from such activities lawyers practising under a home-country professional title conferred in one of the latter Member States.

3. For the pursuit of activities relating to the representation or defence of a client in legal proceedings and insofar as the law of the host Member State reserves such activities to lawyers practising under the professional title of that State, the latter may require lawyers practising under their home-country professional titles to work in conjunction with a lawyer who practises before the judicial authority in question and who would, where necessary, be answerable to that authority or with an "avoué" practising before it.

Nevertheless, in order to ensure the smooth operation of the justice system, Member States may lay down specific rules for access to supreme courts, such as the use of specialist lawyers.'

14 Article 10 of the Directive provides as follows:

`1. A lawyer practising under his home-country professional title who has effectively and regularly pursued for a period of at least three years an activity in the host Member State in the law of that State including Community law shall, with a view to gaining admission to the profession of lawyer in the host Member State, be exempted from the conditions set out in Article 4(1)(b) of Directive 89/48/EEC...