Opinion of the Advocate General — ECLI:EU:C:2014:265
Date: 2014-04-10
Language of the case: Italian
Subject matter: Right of establishment;Social Policy;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (Grand Chamber), 17 July 2014 1. Questions referred for a preliminary ruling — Reference to the Court — National court or tribunal within the meaning of Article 267 TFEU — Meaning — Consiglio Nazionale Forense (National Bar Council) — Included (Art. 267 TFEU) 2. Questions referred for a preliminary ruling — Reference to the Court –Question of interpretation previously answered in an analogous case — Whether open to any national court or tribunal to make a reference — Admissibility of a new request (Art. 267 TFEU) 3. EU law — Abuse of right stemming from EU law — Actions constituting abuse — Elements to be taken into consideration 4. Freedom of movement for persons — Freedom of establishment — Lawyers — Practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained — Directive 98/5 — Return to the Member State of origin soon after the acquisition of a professional qualification in another Member State — Abuse — None (European Parliament and Council Directive 98/5, Art. 1(1) and (3)) 5. Freedom of movement for persons — Freedom of establishment — Lawyers — Practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained — Directive 98/5 — Article 3 — Assessment of validity having regard to respect for the national identity of Member States — Validity (Art. 4(2) TEU; European Parliament and Council Directive 98/5, Art. 3) 1. In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 257 TFEU, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. As regards, more specifically, the independence of the body making a reference, that condition presumes that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them. Further, in order to establish whether a national body, entrusted by law with different categories of function, is to be regarded as a court or tribunal within the meaning of Article 267 TFEU, it is necessary to determine in what specific capacity it is acting within the particular legal context in which it seeks a ruling from the Court. A national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature. (see paras 17-19) 2. As regards the reference of a question for a preliminary ruling, even when there is case-law of the Court resolving the point of law at issue, national courts and tribunals remain entirely at liberty to bring a matter before the Court if they consider it appropriate to do so, and the fact that the provisions whose interpretation is sought have already been interpreted by the Court does not deprive the Court of jurisdiction to give a further ruling. (see para. 32) 3. See the text of the judgment. (see paras 42-46) 4. Article 3 of 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 must be interpreted as meaning that no abuse can be identified in the fact that a national of a Member State who after successfully obtaining a university degree travels to another Member State in order to acquire there the professional qualification of lawyer and returns to the Member State of which he is a national in order to practise there the profession of lawyer under the professional title obtained in the Member State where that professional qualification was acquired. The purpose of Directive 98/5 is to facilitate the practice of the profession of lawyer on a permanent basis in a Member State other than that in which the professional qualification was obtained. In that regard, it must be held that the right of nationals of a Member State to choose, on the one hand, the Member State in which they wish to acquire their professional qualifications and, on the other, the Member State in which they intend to practise their profession is inherent in the exercise, in a single market, of the fundamental freedoms guaranteed by the Treaties. Accordingly, the fact that a national of a Member State who has obtained a university degree in that State travels to another Member State, in order to acquire there the professional qualification of lawyer, and subsequently returns to the Member State of which he is a national in order to practise the profession of lawyer under the professional title obtained in the Member State where that qualification was acquired, constitutes one of the possible situations where the objective of Directive 98/5 is achieved and cannot constitute, in itself, an abuse of the right of establishment stemming from Article 3 of Directive 98/5. Further, the fact that the national of a Member State has chosen to acquire a professional qualification in a Member State other than that in which he resides in order to benefit there from more favourable legislation is not, in itself, sufficient ground to conclude that there is an abuse of rights. Further, that finding cannot be called into question by the fact that the submission of the application for registration in the register of lawyers qualified abroad held by the competent authority of the host Member State took place soon after the professional title was obtained in the home Member State. There is no provision in Article 3 of Directive 98/5 to the effect that the registration of a lawyer wishing to practise in a Member State other than that in which he acquired his professional qualification with the competent authority of the host Member State may be subject to the condition that a period of practical experience as a lawyer in the home Member State has been completed. (see paras 47-52, operative part 1) 5. Article 3 of 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, in so far as it enables nationals of a Member State who obtain the professional title of lawyer in another Member State to practise the profession of lawyer in the State of which they are nationals under the professional title obtained in the home Member State, is not capable of affecting either the fundamental political and constitutional structures or the essential functions of the host Member State within the meaning of Article 4(2) TEU. Article 3 of Directive 98/5 concerns solely the right of establishment in a Member State in order to practise the profession of lawyer under the professional title obtained in the home Member State. That provision does not regulate access to the profession of lawyer nor the practice of that profession under the professional title issued in the host Member State. It necessarily follows that an application for registration in the register of lawyers qualified abroad, submitted pursuant to Article 3 of Directive 98/5, is not such as to make it possible to evade the application of the legislation of the host Member State relating to access to the profession of lawyer. (see paras 56-59, operative part 2)