Judgment — ECLI:EU:C:2010:729
Date: 2010-12-02
Language of the case: Italian
Court formation: Fifth Chamber
Subject matter: Competition;Right of establishment;Principles, objectives and tasks of the Treaties;Freedom to provide services;Free movement of workers
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Limits – General or hypothetical questions – Determination by the Court of its own jurisdiction (Art. 234 EC; European Parliament and Council Directive 98/5, Art. 8) 2. Competition – Community rules – Obligations of the Member States (Art. 3(1)(g), EC, 4 EC, 10 EC, 81 EC and 98 EC) 3. 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 (European Parliament and Council Directive 98/5, Art. 8) 1. Questions concerning Union law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Union law sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. In that connection, a question relating to the interpretation of Article 8 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 cannot be regarded as hypothetical on account of the fact that it was raised in context of a procedure for removing lawyers from the register of the Bar Council concerning lawyers practising that profession in their home State under the professional title obtained in that State. The rule laid down in Article 8 is not intended solely to grant lawyers registered in a host Member State under their home-country professional title the same rights as those enjoyed by lawyers registered in the host Member State under the professional title obtained there. That rule also ensures that the latter do not suffer reverse discrimination, which might arise if the rules which are imposed on them were not applied to the lawyers registered in the host Member State under a professional title obtained in another Member State. (see paras 28,31-32) 2. Articles 3(1)(g) EC, 4 EC, 10 EC, 81 EC and 98 EC do not preclude national rules that prevent public officials who work part-time from practising the profession of lawyer, despite their being qualified to do so, by providing that they are to be removed from the register of the Bar Council. Articles 10 EC and 81 EC are infringed when a Member State requires or encourages the adoption of agreements, decisions or concerted practices contrary to Article 81 EC or reinforces their effects, or when it divests its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere. The fact that a Member State orders the organs of a professional association such as the various Bar Councils to remove from the register members of that profession who are also part-time public officials who have not opted, within the period prescribed, either to remain registered or to continue working for the public body which employs them, does not establish that that Member State has divested its own rules of the character of legislation by the State. The Bar Councils have no influence over the automatic adoption, prescribed by the law, of decisions to remove from the register. For similar reasons, national rules such as those at issue in the main proceedings cannot be regarded as imposing or favouring agreements, decisions or concerted practices contrary to Article 81 EC. Those findings are not shaken by Article 3(1)(g) EC, which envisages action by the European Union regarding a system ensuring that competition in the internal market is not distorted, or by Articles 4 EC and 98 EC, which concern the adoption of economic policy in accordance with the principle of an open market economy with free competition. (see paras 49-53, operative part 1) 3. Article 8 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 it is open to a host Member State to impose on lawyers registered with a Bar in that Member State who are also, whether full or part-time, in the employ of another lawyer, an association or firm of lawyers, or a public or private enterprise, restrictions on the practice of the profession of lawyer concurrently with that employment, provided that those restrictions do not go beyond what is necessary in order to attain the objective of preventing conflicts of interest and apply to all the lawyers registered in that Member State. Article 8 of Directive 98/5 concerns all the rules introduced by the host Member State in order to prevent conflicts of interest which may, in its assessment, lead to a situation in which a lawyer is registered with a Bar and employed by another lawyer, an association or firm of lawyers or a public or private enterprise. Thus, the prohibition imposed on lawyers registered in the Member State concerned of being employed, even part-time, by a public enterprise forms part of the rules referred to in Article 8 of Directive 98/5, at least in so far as that prohibition concerns concurrently practising as a lawyer and working in a public enterprise. Moreover, the fact that the rules may be regarded as strict cannot be criticised per se. The absence of conflicts of interest is essential to the practice of the profession of lawyer and in particular requires lawyers to be in a situation of independence vis-à-vis the public authorities and other operators, by whom they must never be influenced. It is true that the rules laid down in that regard should not go beyond what is necessary to achieve the objective of preventing conflicts of interest. Article 8 requires the rules of the host Member State to be applied to all lawyers registered in that Member State, whether they are registered under the professional title obtained in that Member State or that obtained in another Member State. (see paras 59-62, 64, operative part 2)