Opinion of the Advocate General — ECLI:EU:C:2006:313
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: Action for failure to fulfil obligations - successful
Origin: Luxembourg

Summary of the Judgment 1. Freedom of movement for persons – Freedom of establishment – Lawyers – Practice of the profession 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, Arts 3, 4 and 5(3)) 2. Freedom of movement for persons – Freedom of establishment – Lawyers – Practice of the profession 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, Arts 2 and 5(2) and (3)) 3. Freedom of movement for persons – Freedom of establishment – Lawyers – Practice of the profession 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, Arts 7(2) and 13) 1. 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 precludes a Member State from making registration with the competent national authorities subject to a prior language test for lawyers who have obtained their qualification in another Member State and who wish to practise under their home-country professional title. The Community legislature undertook, in Article 3, a complete harmonisation of the preliminary conditions required for the exercise of the right Directive 98/5 confers, by providing for presentation to the competent authority of the host Member State of a certificate attesting to registration with the competent authority of the home Member State to be the only condition to which registration of the person concerned in the host Member State may be subject, enabling him to practise in the latter State under his home-country professional title. The Community legislature, with a view to making it easier for a particular class of migrant lawyers to exercise the fundamental freedom of establishment, did not opt for a system of prior testing of the knowledge of the persons concerned. However, the exclusion of a system of prior testing of the knowledge, particularly of languages, for European lawyers is accompanied in Directive 98/5 by a set of rules intended to ensure, to a level acceptable in the Community, the protection of consumers and the proper administration of justice. (see paras 35-37, 39, 41-43, 47, operative part) 2. Article 5 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 precludes a prohibition by the host Member State on European lawyers being persons authorised to accept service on behalf of companies. Directive 98/5 lays down, in Articles 2 and 5, the principle that European lawyers are entitled to pursue the same professional activities as lawyers practising under the professional title of the host Member State, subject to the exceptions laid down in Article 5(2) and (3). Therefore, the Member States are not authorised to provide in their national law for any exceptions to that principle other than those set out expressly and exhaustively in that article. Furthermore, the introduction or retention of national provisions which prejudice that principle cannot be justified by the risk of abuse, as Directive 98/5 provides, inter alia, for a combination of the professional rules of conduct to be observed by the European lawyer, for compulsory professional liability insurance or membership of a professional guarantee fund, and for a disciplinary system involving the competent authorities of both the home Member State and the host State. (see paras 56-57, 59-61) 3. 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 precludes rules in the host Member State requiring European lawyers to produce each year a certificate of registration with the competent authority of their home Member State. In light of the fact that the directive provides, in Article 7(2) and Article 13, for measures enabling the authority of the host Member State to ensure continuing compliance by the European lawyer with the condition of registration with the competent authority of the home Member State, such a formality is an administrative measure which is disproportionate to its objective, and therefore unjustified under Directive 98/5. (see paras 67-71)