Opinion of the Advocate General — ECLI:EU:C:2020:716
Date: 2020-09-16
Language of the case: French
Subject matter: Right of establishment;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: France

Summary C-218/19 — 1 
Case C-218/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
12 March 2019 
Referring court: 
Cour de cassation (France) 
Date of the decision to refer: 
20 February 2019 
Applicant: 
XR 
Defendants: 
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 
  
I  Facts and subject matter of the dispute 
1 XR holds a Master’s degree and a Doctorate in law from a French university and 
has primarily worked at the European Commission as an administrator for more 
than eight years, in particular in the Directorate-General for Internal Market and 
the Directorate-General for Competition (State aid, then cartels). XR is currently 
seeking to register at the Paris Bar with exemption from the examinations for the 
‘CAPA’ (certificat d’aptitude à la profession d’avocat (certificate of competence 
for the profession of lawyer)) and from the preparatory training for those 
examinations. 
2 XR takes the view that the work performed at the European Commission meets 
the conditions of the exemption for which French legislation makes provision, 
inter alia, for category A civil servants, or persons treated as civil servants in that 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-218/19 
 
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category, who have performed legal work for at least eight years, in an 
administration or a public service or an international organisation. 
3 Following the rejection of her application, XR appealed to the cour d’appel de 
Paris (Court of Appeal, Paris). 
4 By a judgment of 11 May 2017 (‘the judgment under appeal’), the Court of 
Appeal, Paris upheld the rejection of the application, finding that XR did not 
satisfy the condition relating to the practice of French law since she did not prove 
any practice on her part of national law and had practised only EU law. 
5 XR brought an appeal on a point of law, challenging the restrictive interpretation 
of the provisions governing the profession of lawyer in France adopted by the 
Court of Appeal, Paris, which seeks to restrict the exemption to persons forming 
part of the French civil service. 
II.  Provisions at issue 
A.  EU law 
6 The first paragraph of Article 18 of the Treaty on the Functioning of the European 
Union (‘TFEU’) provides: 
‘Within the scope of application of the Treaties, and without prejudice to any 
special provisions contained therein, any discrimination on grounds of nationality 
shall be prohibited.’ 
7 Article 45(2) TFEU provides: 
[freedom of movement for workers] ‘shall entail the abolition of any 
discrimination based on nationality between workers of the Member States as 
regards employment, remuneration and other conditions of work and 
employment’. 
8 The second paragraph of Article 49 TFEU provides: 
‘Freedom of establishment shall include the right to take up and pursue activities 
as self-employed persons ... under the conditions laid down for its own nationals 
by the law of the country where such establishment is effected ...’ 
B.  French law 
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’) 
9 Article 11 
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‘No person may enter the profession of lawyer if he does not satisfy the following 
conditions: 
… 
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 …; 
3.  Hold the certificate of competence for the profession of lawyer, subject to 
the regulatory provisions mentioned in paragraph 2, or …; 
…’ 
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’ ) 
10 Article 93  
‘The following may be registered at a Bar: 
1.  Holders of the certificate of competence for the profession of lawyer; 
… 
3.  Persons qualifying for one of the exemptions provided for in Article 98 and 
who have passed the ethics and professional regulation examination provided for 
in Article 98-1;  
…’ 
Article 98 
‘The following are exempt from the theoretical and practical training and from the 
certificate of competence for the profession of lawyer: 
…  
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; 
…’ 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-218/19 
 
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III.  Arguments of the parties 
11 In support of her appeal, XR relies upon four grounds of appeal which are 
annexed to the order for reference, in which the Cour de cassation (Court of 
Cassation) combines the first three to form a single ground of appeal in six parts 
and states that it is not necessary to rule on the fourth ground of appeal, alleging 
an infringement of the Revised European Social Charter (version of 3 May 1996). 
12 According to the first part of the ground of appeal, EU law is directly incorporated 
into national law. Assuming that the performance of the legal work referred to in 
Article 98(4) of Decree No 91-1197 is limited to French law, it does not require a 
command of all the branches of that law. In the same vein, the practice for at least 
eight years of any branch of French law, including EU law, is sufficient to satisfy 
that condition. By holding, on the contrary, that XR, a civil servant and 
administrator at the Commission, did not satisfy the condition relating to the 
practice of French law since she had practised only EU law, the judgment under 
appeal infringed Article 11(3) of Law No 71-1130 and Article 98(4) of Decree 
No 91-1197, as well as the principle of the direct incorporation of EU law into 
national law, and Article 88-1 of the French Constitution, which recognises the 
primacy of EU law. 
13 According to the second part of the ground of appeal, as EU law is directly 
incorporated into national law, its practice is equivalent to the practice of any 
other branch of French law. By distinguishing between civil servants who have 
practised certain branches of French law and those who have practised EU law, 
and by excluding the latter from the scope of the exemption laid down by 
Article 98(4) of Decree No 91-1197, the judgment under appeal made a 
distinction which Law No 71-1130 does not make and infringed Article 11(3) of 
Law No 71-1130 and Article 98(4) of Decree No 91-1197, as well as the principle 
of the direct incorporation of EU law into national law, the principle of consistent 
interpretation, and Article 88-1 of the French Constitution, which recognises the 
primacy of EU law. 
14 According to the third part of the ground of appeal, assuming that the exemption 
for which national law makes provision must be understood to be limited to 
category A civil servants and those treated as such who have performed legal 
work for eight years, either exclusively in France, or by applying rules of French 
law which are not based on EU law, those measures necessarily lead to indirect 
discrimination in favour of civil servants in the French civil service, the large 
majority of which is made up of French nationals, and who, in practice, are the 
only people who can satisfy those criteria. That discrimination is prohibited since 
it is not justified on grounds of public policy, public security or public health. The 
judgment under appeal thus infringed Article 11(3) of the Law, Article 98(4) of 
Decree No 91-1197, and Articles 18, 45 and 49 TFEU as interpreted by the Court 
of Justice. 
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15 According to the fourth part of the ground of appeal, a measure which constitutes 
an obstacle to freedom of movement for workers and freedom of establishment is 
acceptable, assuming that it is non-discriminatory, only if it pursues a legitimate 
objective which is compatible with the Treaty and is justified by overriding 
reasons in the public interest, provided that the application of such a measure is 
suitable to ensure the achievement of the objective in question and does not go 
beyond what is necessary to attain that objective. To accept that the exemption 
relied upon should not be available to EU civil servants who have practised only 
EU law (which forms an integral part of French law), on the grounds that that 
practice would not guarantee that the individual would be effectively defended by 
qualified professionals, but that it may be granted to civil servants who have 
practised in only certain branches of French law (other than EU law), who do not 
objectively provide greater guarantees, constitutes a restrictive measure which, 
assuming that it pursues the legitimate goal of protecting the individual, is 
nevertheless not suitable to ensure the achievement of the objective in question 
and goes beyond what is necessary to attain it. The judgment under appeal 
therefore infringed Articles 18, 45 and 49 TFEU as interpreted by the Court of 
Justice, and Article 11(3) of Law No 71-1130 and Article 98(4) of Decree No 91-
1197, as well as the principles of the direct incorporation of EU law into national 
law and of the consistent interpretation of national law. 
16 In the fifth and sixth parts of the ground of appeal, XR argues, in essence, that the 
Court of Appeal failed to specifically assess her diplomas, qualifications and 
professional experience, and merely held in abstracto that XR had not practised 
‘general’ French law. 
IV.  Assessment of the referring court 
17 The referring court begins by recalling that whilst it follows from the settled case-
law of the Court of Justice (judgment of 10 December 2009, Pesla, C-345/08, 
EU:C:2009:771, paragraphs 34 to 36) that in the absence of harmonisation of the 
conditions of access to a particular occupation, the Member States are entitled to 
lay down the knowledge and qualifications needed in order to pursue it, EU law 
nevertheless sets limits on the exercise of those powers in so far as provisions of 
national law must not constitute an unjustified restriction on the effective exercise 
of the fundamental freedoms guaranteed by Articles 45 and 49 of the Treaty. 
National rules establishing the conditions for national qualifications, even if 
applied without any discrimination on the basis of nationality, may infringe upon 
the exercise of those fundamental freedoms if those rules fail to take account of 
learning, skills and qualifications already acquired by the person concerned in 
another Member State. 
18 According to the case-law of the Court of Justice, all national measures which 
prohibit, impede or render less attractive the exercise of those fundamental 
freedoms constitute restrictions on the freedom of movement for workers and on 
the freedom of establishment (judgments of 18 June 1985, Steinhauser, 197/84, 
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EU:C:1985:260; of 4 December 2008, Jobra, C-330/07, EU:C:2008:685; and of 
5 February 2015, Commission v Belgium, C-317/14, EU:C:2015:63). Those 
national measures may nonetheless be permitted, provided that they serve 
overriding reasons in the public interest, are appropriate for attaining their 
objective and do not go beyond what is necessary in order to attain that objective, 
on the understanding that national legislation will be appropriate for ensuring 
attainment of the objective relied upon only if it genuinely reflects a concern to 
attain that objective in a consistent and systematic manner (judgment of 18 May 
2017, Lahorgue, C-99/16, EU:C:2017:391). 
19 The objective of the protection of consumers, which includes the protection of 
recipients of legal services provided by persons involved in the administration of 
justice, is among those which may be regarded as overriding requirements in the 
public interest capable of justifying a restriction on the freedom to provide 
services (judgment of 18 May 2017, Lahorgue, C-99/16, EU:C:2017:391), so that 
it may, on the same basis, justify a restriction on the freedom of movement for 
workers and on the freedom of establishment. 
20 Whilst overriding reasons in the public interest may be relied upon to justify such 
a restriction, that is on the condition that that restriction is not discriminatory 
(judgments of 22 December 2008, Commission v Austria, C-161/07, 
EU:C:2008:759; of 5 December 2013, Zentralbetriebsrat der gemeinnützigen 
Salzburger Landeskliniken, C-514/12, EU:C:2013:799; and of 28 January 2016, 
Laezza, C-375/14, EU:C:2016:60). 
21 According to the settled case-law of the Court, the principle of non-discrimination 
laid down in Articles 45 and 49 of the TFEU prohibits not only direct or overt 
discrimination on grounds of nationality but also all covert forms of 
discrimination which, by the application of other distinguishing criteria, lead to 
the same result. Unless objectively justified and proportionate to its aim, a 
provision of national law must be regarded as indirectly discriminatory if it is 
intrinsically liable to affect the nationals of other Member States more than the 
nationals of the State whose legislation is at issue and if there is a consequent risk 
that it will place the former at a particular disadvantage (judgments of 23 May 
1996, O’Flynn, C-237/94, EU:C:1996:206, and of 1 June 2010, Blanco Pérez and 
Chao Gómez, C-570/07 and C-571/07, EU:C:2010:300). 
22 The national measure constituted by the combination of Article 11 of the Law, 
which makes entry to the profession of lawyer, inter alia, without the ‘CAPA’, 
dependent on the condition of performance of certain functions or activities in 
France, and of Article 98(4) of Decree No 91-1197, which makes exemption from 
training and obtaining a diploma dependent on belonging to the French civil 
service alone and is interpreted by the French courts as making that exemption 
dependent on knowledge of national law of French origin, can be regarded as 
creating a restriction on the freedom of movement for workers or on the freedom 
of establishment. 
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23 It is therefore necessary to determine whether that restriction applies without 
distinction to nationals of the host Member State or the Member State of 
establishment and to nationals of other Member States, so that it could be justified 
by overriding reasons in the public interest. 
24 The referring court points out that the judgment under appeal held that the 
overriding need to give effect to the complete and effective exercise of the rights 
of the defence, by ensuring that applicants for the profession of lawyer have the 
professional qualifications required, constitutes a legitimate objective which is 
capable of justifying restrictions on entry to the profession of lawyer, and that the 
judgment under appeal infers from this that that requirement, assessed in the light 
of the specific circumstances, does not create discriminatory conditions for entry 
to the profession of lawyer for nationals of the European Union. 
25 The referring court also notes that the judgment under appeal found that the 
conditions for exemption set down by Article 98 of Decree No 91-1197 must be 
interpreted strictly and that persons who cannot successfully rely upon them still 
have the possibility of entering the profession of lawyer in accordance with the 
general rules laid down by Article 11 of Law No 71-1130, from which that 
judgment infers that the restriction on entry to the profession of lawyer is limited 
and proportionate to its aim. 
26 The referring court observes, in addition, that the conditions which must be 
satisfied by a person requesting exemption on the basis of Article 98(4) of Decree 
No 91-1197, relating to the requirement of knowledge of national law of French 
origin, to the performance of certain functions or activities in France and to 
belonging to the French civil service, are cumulative, and that, if EU law were to 
preclude the position whereby the practice of EU law alone may not be taken into 
account in assessing the condition relating to the performance of legal work within 
the meaning of Article 98(4) of Decree No 91-1197, the question which would 
arise is whether the restrictions on the freedom of movement for workers or on the 
freedom of establishment constituted by the other two conditions can be justified 
in view of those freedoms. 
27 The referring court first recalls that by its decision No 2016-551 QPC of 6 July 
2016 (ECLI:FR:CC:2016:2016.551.QPC), the Conseil constitutionnel 
(Constitutional Council) took the view that by requiring, for the exercise of the 
profession of lawyer, the performance of an activity or a function of a legal nature 
for a sufficient period of time on national territory, the legislature had intended to 
guarantee the competence of the persons exercising that profession and, 
consequently, to guarantee respect for the rights of the defence, and that the 
Constitutional Council inferred from that that the difference in treatment created 
by the disputed provisions, which is based on a difference in situations, was 
directly related to the purpose of Law No 71-1130. The Constitutional Council 
also found in that decision that persons who did not satisfy the conditions to 
qualify for the exemption were not deprived of the right to enter the profession of 
lawyer under the conditions of general law, and that it followed that the legislature 
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had adopted measures suitable to reconcile, in a manner which was not manifestly 
unbalanced, respect for the freedom to conduct a business with respect for the 
rights of the defence guaranteed by the French Constitution. 
28 The referring court adds that Article 98(4) of the 1991 Decree does not require a 
person requesting exemption from training and obtaining a diploma to have 
knowledge of a topic of national law specifically relating to the organisation of the 
national courts or to the procedure before those courts. 
29 It explains, moreover, on one hand, that whilst the exemption from training and 
obtaining a diploma laid down by Article 98(4) of Decree No 91-1197 is 
dependent on belonging to a national administration, the latter is, largely, open to 
all Member State nationals, which suggests that that restriction should be regarded 
as a measure which applies without distinction. Pursuant, in particular, to 
Article 5a of loi no 83-634 du 13 juillet 1983 portant droits et obligations des 
fonctionnaires (Law No 83-634 of 13 July 1983 on the rights and obligations of 
civil servants), as amended, with the exception of certain jobs relating to the 
exercise of sovereignty or of public powers, nationals of Member States of the 
European Union are permitted to enter the French civil service.  
30 The referring court points out, however, on the other hand, that Article 11 of Law 
No 71-1130 and Article 98(4) of Decree No 91-1197 could nevertheless be 
regarded as giving rise to indirect discrimination on grounds of nationality since 
the criteria on which they are based, which are linked to the performance of 
certain functions or activities in France, to knowledge of national law and to 
belonging to the French civil service, mean that it is possible to grant the 
exemption, in fact, only to members of the French administration who have 
exercised their profession in France, the large majority of whom are French, and 
that members of the EU civil service are denied the exemption, even though they 
have performed legal work outside France, using national law of French origin. 
31 It emphasises, finally, that for the legal regime established by the national law at 
issue to be classified as discriminatory as regards the condition of belonging to the 
French civil service, the French civil service and the EU civil service must be able 
to be regarded as objectively comparable entities, which could not, consequently, 
be treated differently. However, none of the rules of EU law appears to establish, 
as for diplomas and professional qualifications, that they are equivalent. 
32 It adds that if the two administrations had to be regarded as objectively 
comparable, it could not be argued that the exemption for which Article 98(4) of 
Decree No 91-1197 makes provision would apply without distinction, but there 
would still be a difference in treatment in that whereas the members of the French 
civil service and those of the EU civil service may rely upon identical knowledge 
and qualifications, arising from the application, within an administration, of 
national law or of EU law, the members of the EU civil service would be subject 
to the additional condition of prior entry to the French civil service in order to be 
entitled to rely upon the exemption at issue. 
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33 For those reasons, in view of the fact that the Treaty has created its own legal 
system, which is integrated into the legal systems of the Member States and which 
their courts are bound to apply (judgments of the Court of Justice of 15 July 1964, 
Costa, 6/64, EU:C:1964:66; of 19 November 1991, Francovitch, C-6/90 and 9/90, 
EU:C:1991:428; and of 20 September 2001, Courage, C-453/99, 
EU:C:2001:465), and of the uncertainty as to the meaning to be given to 
Articles 45 and 49 of the TFEU, the Court of Cassation stays proceedings and 
refers the following questions to the Court of Justice of the European Union: 
V.  Questions referred for a preliminary ruling 
34 ‘1. Does the principle that the Treaty establishing the European Economic 
Community, now, after amendment, the Treaty on the Functioning of the 
European Union, has created its own legal system, which is integrated into the 
legal systems of the Member States and which their courts are bound to apply, 
preclude national legislation which makes the grant of an exemption from the 
training and diploma requirements laid down, in principle, for entry to the 
profession of lawyer, dependent on the requirement of sufficient knowledge, on 
the part of the person requesting exemption, of national law of French origin, so 
that similar knowledge of the law of the European Union alone is not taken into 
account?  
35 2. Do Articles 45 and 49 of the Treaty on the Functioning of the European Union 
preclude national legislation which restricts an exemption from the training and 
diploma requirements laid down, in principle, for entry to the profession of 
lawyer, to certain members of the civil service of the same Member State who 
have performed legal work in that capacity, in France, in an administration or a 
public service or an international organisation, and which excludes from the scope 
of that exemption members or former members of the European civil service who 
have performed legal work in that capacity, in one or more fields of the law of the 
European Union, within the European Commission?’