Opinion of the Advocate General — ECLI:EU:C:2001:240
Date: 2001-05-03
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services;Free movement of workers
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Italy

Summary of the Judgment 
1. Freedom to provide services — Restrictions — Member State prohibiting lawyers 
established in other Member States and practising in the former State from having the 
infrastructure needed — Not permissible 
(EC Treaty, Art. 59 (now, after amendment, Art. 49 EC)) 
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SUMMARY — CASE C-145/99 
2. Freedom of movement for persons — Freedom of establishment — Lawyers — 
Access to the profession — Residence requirement — Not permissible 
(EC Treaty, Art. 52 (now, after amendment, Art. 43 EC) 
3. Freedom of movement for persons — Freedom of establishment — Workers — 
Recognition of higher-education diplomas awarded on completion of professional 
education and training of at least three years' duration — Directive 89/48 — 
Aptitude test — Obligations of the Member States — Scope 
(Council Directive 89/48, Art. 1 (g), second subpara.) 
1. A Member State which maintains a 
general prohibition whereby lawyers 
established in other Member States and 
practising in the former State in the 
exercise of their freedom to provide 
services cannot have in that State the 
infrastructure needed to provide their 
services, fails to fulfil its obligations 
under Article 59 of the Treaty (now, 
after amendment, Article 49 EC). 
The fact that a provision of services is 
temporary does not mean that the 
provider of services within the meaning 
of the Treaty may not equip himself 
with some form of infrastructure in the 
host Member State (including an office, 
chambers or consulting rooms) in so 
far as such infrastructure is necessary 
for the purposes of performing the 
services in question. 
(see paras 22-23, 57, operative part 1) 
2. A Member State which requires 
members of the Bar established in 
another Member State and wishing to 
maintain an establishment in the 
former Member State to reside in the 
judicial district of the court to which 
the Bar at which they are enrolled is 
attached fails to fulfil its obligations 
under Article 52 of the Treaty (now, 
after amendment, Article 43 EC). The 
right of establishment enshrined in that 
article entails the right to set up and 
maintain, subject to observance of the 
rules of professional practice, more 
than one place of work within the 
Community and the residence obli­
gation hinders the exercise of that 
right. 
(see paras 27-28, 57, operative part 1) 
3. The second s u b p a r a g r a p h of 
Article 1(g) of Directive 89/48 on a 
general system for the recognition of 
higher-education diplomas awarded on 
completion of professional education 
and training of at least three years' 
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COMMISSION v ITALY 
duration provides that, in order to 
permit the aptitude test to be orga­
nised, the competent authorities of the 
host Member State are to 'draw up a 
list of subjects which, on the basis of a 
comparison of the education and train­
ing required in [their] Member State 
and that received by the applicant, are 
not covered by the diploma or other 
evidence of formal qualifications pos­
sessed by the applicant'. 
Whilst that provision does not require 
the Member States to regulate in detail 
all aspects of the aptitude test, it does 
not relieve them of the obligation to 
specify and publish the subjects 
regarded as indispensable for practising 
the profession concerned and the rules 
regulating the conduct of the aptitude 
test, so that applicants can be aware, in 
a general way, of the nature and 
content of the test which they may be 
required to sit. 
In the absence of such rules, the 
comparison called for in that article 
on a case-by-case basis is at risk of 
being arbitrary or even discriminatory, 
and national legislation of that type 
cannot therefore be regarded as fully 
transposing Directive 89/48. 
(see paras 51, 53-54, 57, 
operative part 1) 
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