Opinion of the Advocate General — ECLI:EU:C:2006:311
Date: 2006-05-11
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Luxembourg

summary, it may be said that an appeal system such as that in the main proceedings does not satisfy the requirements of Community law. 5. Interim conclusion 83. Accordingly, the answer to the first two questions is that Directive 98/5 is to be interpreted as precluding appeal proceedings as provided for under the Law of 1991, as amended by the Law of 2002. V – The third and fourth questions: language knowledge examination 84. In substance, the third and fourth questions concern questions of law which arise also in the infringement proceedings in Commission v Luxembourg. They correspond to the questions of law which the Commission has raised in that case by its first plea in law. 85. For that reason, for the analysis of the third and fourth questions, reference is made to the discussion of the first plea in law in my Opinion in the parallel infringement proceedings. (38) 86. Accordingly, the third question and the first part of the fourth question are to be answered as follows: the Directive is to be interpreted as precluding a national provision according to which the authorities of a Member State may make the practice of the profession of lawyer under the home-country professional title in a Member State other than that in which the qualification was obtained conditional on passing a prior language examination. 87. On the basis of this interpretation, it is unnecessary to answer the second part of the fourth question. VI – Conclusion 88. For the foregoing reasons, I would suggest to the Court that it answer the questions referred as follows: (1) Directive 98/5/EC 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 is to be interpreted as precluding appeal proceedings as provided for under the Law of 1991, as amended by the Law of 2002. (2) Directive 98/5 is to be interpreted as precluding a national provision according to which the authorities of a Member State may make the practice of the profession of lawyer under the home-country professional title in a Member State other than that in which the qualification was obtained conditional on passing a prior language examination. Annex Provisions of national law Law of 10 August 1991 on the profession of lawyer … Article 6 (1) In order to be registered in the Bar Register [of an Ordre des avocats (Bar Association) established in the Grand Duchy of Luxembourg] a person must: (a) satisfy the requirement of good character; (b) prove that he fulfils the requirements for admission to a traineeship. By way of exception the Bar Council (Conseil de l’Ordre) may exempt applicants who have completed their professional training in their home State and who can prove that they have practised the profession for at least five years from certain requirements for admission to a traineeship. (c) be of Luxembourg nationality or a national of a Member State of the European Communities. An applicant who is a national of a State which is not a member of the European Community may be exempted by the Bar Council from this requirement after it has consulted the Minister for Justice and has been provided with proof of mutuality on the part of the State in question. The same applies for applicants who have the status of political refugee and who are granted asylum in the Grand Duchy of Luxembourg. … Article 24 (1) By this Law, there is constituted a Disciplinary and Administrative Committee (Conseil disciplinaire et administratif) consisting of five lawyers registered in List I of the Bar Register, of whom four shall be elected by the Luxembourg Bar Association in general meeting by simple majority, and of whom one shall be elected by the Diekirch Bar Association in general meeting by simple majority. The Luxembourg Bar Association in general meeting shall elect four substitutes and the Diekirch Bar Association in general meeting shall elect one substitute. Where a member is prevented from acting, a substitute appointed by the Bar Association to which he belongs shall act in his place, according to the order of seniority; and if the substitutes elected by his own Bar Association are unable to act, the member shall be represented by a substitute elected by the other Bar Association. (2) The members shall serve for a term of two years from the 15 September following their election. If the office of a member or of a substitute falls vacant, the Disciplinary and Administrative Committee shall appoint a replacement. The term of office of a replacement member and of a replacement representative shall end on the day on which the term of office of the elected member or substitute he replaces would have ended. The members of the Disciplinary and Administrative Committee may be re-elected. (3) The Disciplinary and Administrative Committee shall elect a chairman and a vice-chairman. Where the chairman and vice-chairman are unable to act, the longest serving member shall preside. The most recently appointed member of the Committee shall act as secretary. (4) Members of the Disciplinary and Administrative Committee shall be Luxembourg nationals who have been registered in List I of the Bar Register for at least five years, and shall not be members of the Bar Council. (5) If it is impossible for the Disciplinary and Administrative Committee to be constituted according to the foregoing provisions, its members shall be appointed by the Council of the Bar Association to which the members to be replaced belong. … Article 26 … (7) Where a lawyer registered in the register has been passed over, registration or re-registration of a lawyer has been refused, or the seniority of a registered lawyer has been disputed, as well as in the cases falling within Articles 22(2), 23, 34(3) and 40(1), the person concerned may apply to the Disciplinary and Administrative Committee within 40 days of the delivery, issue, or communication under the procedure provided for in paragraph 6 of the decision complained against. It is not necessary to appoint a representative for the proceedings. … Article 28 (as amended by the Law of 2002) (1) The parties to the proceedings, the State Attorney’s Office and the relevant Bar Association Council may appeal against all decisions of the Disciplinary and Administrative Committee with the exception of those specified in Article 22(2). (2) For that purpose there shall be appointed a Disciplinary and Administrative Appeals Committee (Conseil disciplinaire et administratif d’appel), which shall consist of two judges of the Cour d’appel (Court of Appeal) and three lawyers registered in List I of the Bar Register sitting as assessors. The members of the Committee who are judges, their substitutes and the clerk appointed to the Committee shall be appointed for a term of two years by Grand Ducal Order on a proposal by the Cour supérieure de justice (Supreme Civil Court). Their remuneration shall be fixed by Grand Ducal Regulation. The assessors and their substitutes shall be appointed for a term of two years by Grand Ducal Order. They shall be appointed from a list of five lawyers, who have been registered for at least five years in List I of the Bar Register, to be submitted by each Bar Association Council for each vacancy. Members of a Bar Association Council and members of the Disciplinary and Administrative Committee shall not be eligible for appointment as a legal assessor. The Disciplinary and Administrative Appeals Committee shall sit in the offices of the Cour supérieure de justice, whose administrative division shall also carry out any tasks arising. The longest serving judge shall preside in the Disciplinary and Administrative Appeals Committee. (3) An appeal shall be lodged at the offices of the Cour supérieure de justice within a period of 40 days, which shall be commenced in respect of the parties to the proceedings, the State Attorney’s Office and the Council of the relevant Bar Association by the notice issued by the chairman of the Disciplinary and Administrative Committee by registered post. (4) The provisions of Article 26 concerning hearings and procedure shall apply mutatis mutandis to the Disciplinary and Administrative Appeals Committee. Article 29 (1) The parties to the proceedings, the State Attorney’s Office and the Council of the relevant Bar Association may apply for constitutional review of the judgment given on the appeal. (2) The civil procedure rules shall apply mutatis mutandis to the application for constitutional review, the conduct of hearings and the decision. The time-limit for applying for constitutional review shall start to run on the day that the appeal decision is notified by an authorised official by registered post. … Law of 13 November 2002 transposing Directive 98/5/EC 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, and 1. Amending the Law of 10 August 1991 on the profession of lawyer, as amended, 2. Amending the Law of 31 May 1999 on authorising acceptance of service on behalf of companies … Article 3 (1) In order to practise the profession of lawyer in the Grand Duchy of Luxembourg under a home-country professional title, a European lawyer must be registered with one of the Bar Councils of the Grand Duchy of Luxembourg. For that purpose he must submit a complete application in French to the president (bâtonnier) of the Bar Council of the court district in which he wishes to establish himself. In addition to the submission of the documents and information specified in paragraph 2, the European lawyer must state in his application whether he is member of a category of lawyers in his home State and, if so, provide all relevant details of the category. (2) The Bar Council of the Grand Duchy of Luxembourg, when considering a European lawyer’s application to practise the profession of lawyer under his home-country professional title, shall register him in the Bar Register of the Bar Association following a hearing enabling the Bar Council to verify whether the European lawyer is proficient in at least the languages specified in Article 6(1)(d) of the Law of 10 August 1991, and upon presentation of the documents specified in Article 6(1)(a), (c), first sentence, and (d) of the Law of 10 August 1991, and the certificate of registration of the European lawyer in question with the competent authority of his home Member State, the Bar Association Council shall register the European lawyer in the register of lawyers who are members of that Bar Association. The aforementioned certificate from the home Member State shall be submitted anew each year in January and shall not be more than three months old. If the certificate is not submitted the Bar Association Council may cancel the European lawyer’s registration. Registration of a European lawyer in the Bar Register of the Bar Association shall be effected by registration in List IV as designated by point 4 of Article 8(3) of the Law of 10 August 1991, which comprises lawyers who practise the profession of lawyer under their home-country professional title. The Bar Association Council which effects registration shall notify the competent authority of the home Member State thereof. (3) Decisions to refuse registration under paragraph 2 or to cancel such registration shall state the reasons on which they are based. Such decisions must be notified to the European lawyer by registered post. Such decisions may be challenged on the conditions and subject to the rules laid down in Article 26(7) et seq. of the Law of 10 August 1991. (4) If one of the Bar Associations of the Grand Duchy of Luxembourg publishes the names of lawyers registered with it, it shall also publish the names of the European lawyers registered with it who practise the profession of lawyer under their home-country professional title. (5) If the competent authorities of a Member State other than Luxembourg register a lawyer who is registered with one of the Bar Associations of the Grand Duchy of Luxembourg, the information specified in Article 3(2) of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 shall be provided to the president of the Bar Association of the Grand Duchy of Luxembourg with which the lawyer is registered. … Article 14 The Law of 10 August 1991 on the profession of lawyer, as amended, is amended as follows: … III. The following letter (d) shall be inserted into Article 6(1): ‘(d) be proficient in the language of statutory provisions as well as the administrative and court languages as provided for by the Law of 24 February 1984 on the language regime.’ 1 – Original language: German. 2 – OJ 1998 L 77, p. 36. 3 – Case C-193/05 Commission v Luxembourg [2006] ECR I-0000. 4 – Mémorial A 1984, p. 196. 5 – Mémorial A 2002, p. 3202. 6 – Law of 10 August 1991 on the profession of lawyer (Mémorial A 1991, p. 1110) and Law of 31 May 1999. 7 – See Case C-415/93 Bosman [1995] ECR I-4921, paragraph 61; Case C-437/97 EKW and Wein & Co. [2000] ECR I-1157, paragraph 52; Case C-36/99 Idéal tourisme [2000] ECR I-6049, paragraph 20; Case C-318/00 Bacardi-Martini and Cellier des Dauphins [2003] ECR I-905, paragraph 42; and Case C-448/01 EVN and Wienstrom [2003] ECR I-14527, paragraph 76. 8 – See, in particular, Case 139/85 Kempf [1986] ECR 1741, paragraph 12; Case C-332/88 Alimenta [1990] ECR I-2077, paragraph 9; and Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, paragraph 50. 9 – Case 33/76 Rewe [1976] ECR 1989, paragraph 5; Case C-312/93 Peterbroeck, Van Campenhout & Cie [1995] ECR I-4599, paragraphs 12 and 14; and Case C-224/01 Köbler [2003] ECR I-10239, paragraph 46. 10 – See Case 107/83 Klopp [1984] ECR 2971, paragraph 14. 11 – See, for example, Case C-309/99 Wouters and Others [2002] ECR I-1577, paragraph 108. 12 – See COM(94) 572 final. 13 – See, for example, Case 61/65 Vaassen-Göbbels [1966] ECR 261, 273, and Case C-53/03 Syfait and Others [2005] ECR I-4609, paragraph 29. 14 – Case 14/86 Pretore di Salò [1987] ECR 2545, paragraph 7, and the Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-17/00 De Coster [2001] ECR I-9445, point 17. 15 – Case C-24/92 Corbiau [1993] ECR I-1277, paragraph 15. 16 – Case C-54/96 Dorsch Consult [1997] ECR I-4961, paragraph 34 et seq.; see also the Opinion of Advocate General Ruiz-Jarabo Colomer in De Coster (cited in footnote 14), point 21. 17 – See Joined Cases C-9/97 and C-118/97 Jokela and Pitkäranta [1998] ECR I-6267, paragraph 20, and Case C-416/96 Eddline El-Yassini [1999] ECR I-1209, paragraph 21. 18 – Case C-103/97 Köllensperger and Atzwanger [1999] ECR I-551, paragraph 21. 19 – Opinion of Advocate General Ruiz-Jarabo Colomer in De Coster (cited in footnote 14), point 25, and the judgments in Syfaitand Others (cited in footnote 13), paragraph 29, and in Case C-407/98 Abrahamsson and Anderson [2000] ECR I-5539, paragraphs 36 and 37. 20 – Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraphs 39 and 40, and Case C-516/99 Schmid [2002] ECR I-4573, paragraph 37. 21 – Case 246/80 [1981] ECR 2311, paragraph 16; Anderson, D., References to the European Court, 1995, paragraph 2-016. 22 – See, for example, Middeke, A., Handbuch des Rechtsschutzes in der Europäischen Union, Second edition, 2003, Section 10 B I 2, paragraph 23. 23 – On the importance of independence, see the Opinion of Advocate General Ruiz-Jarabo Colomer in De Coster (cited in footnote 14), point 92 et seq. 24 – Article 4(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (OJ 2002 L 108, p. 33); Article 12 of Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports (OJ 2002 L 85, p. 40). 25 – Article 2(8) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), and Article 2(9) of Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14). 26 – See the Opinion of Advocate General Ruiz-Jarabo Colomer in De Coster (cited in footnote 14), point 88. 27 – European Court of Human Rights, Le Compte, Van Leuven and De Meyerev.Belgium, judgment of 23 June 1981, Series A no. 43, § 55 et seq., and Campbell and Fellv.theUnited Kingdom, judgment of 28 June 1984, Series A no. 80, § 78. 28 – European Court of Human Rights, Campbell and Fell (cited in footnote 27), § 79, and Bryanv. the United Kingdom, judgment of 22 November 1995, Series A no. 335-A, § 38. 29 – European Court of Human Rights, Campbell and Fell (cited in footnote 27), § 76; Lithgow and Othersv. the United Kingdom, judgment of 8 July 1986, Series A no. 102, § 201; and British-American Tobacco CompanyLtd v. the Netherlands, judgment of 20 November 1995, Series A no. 331, § 77. 30 – See Grabenwarter, C., Europäische Menschenrechtskonvention: ein Studienbuch, Second edition, 2005, § 24, paragraph 33. 31 – Jarass, H., EU-Grundrechte: ein Studien- und Handbuch, 2005, § 40, paragraph 28. 32 – Velu, J. and Ergec, R., La convention européenne des droits de l’homme, Volume VII, 1990, paragraph 539. 33 – European Court of Human Rights, Le Compte, Van Leuven and De Meyerev. Belgium (cited in footnote 27), § 57. 34 – Grabenwarter, C. (cited in footnote 30), paragraph 39. 35 – European Court of Human Rights, De Moorv.Belgium, judgment of 23 June 1994, Series A no. 292-A. 36 – European Court of Human Rights, Bryanv. the United Kingdom (cited in footnote 28), § 40; Grabenwarter, C., Verfahrensgarantien in der Verwaltungsgerichtsbarkeit, 1997, Part 4, p. 359 et seq. 37 – See European Court of Human Rights, Capital BankADv.Bulgaria, judgment of 24 November 2005, no. 49429/99, § 98. 38 – Opinion in Commission v Luxembourg (cited in footnote 2)..