61999CC0145_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I - Object of the proceedings
1. By this action, the Commission seeks a declaration that Italy has failed to meet its obligations under Articles 52 and 59 of the EC Treaty (now, after amendment, Articles 43 and 49 EC) and under Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (Directive 89/48) by maintaining certain provisions governing access to the profession of lawyer and its practice.
II - Legislative context
A - Community legislation
2. Article 1(g) of Directive 89/48 provides the following definition of the aptitude test:
... a test limited to the professional knowledge of the applicant, made by the competent authorities of the host Member State with the aim of assessing the ability of the applicant to pursue a regulated profession in that Member State.
In order to permit this test to be carried out, the competent authorities shall draw up a list of subjects which, on the basis of a comparison of the education and training required in the Member State and that received by the applicant, are not covered by the diploma or other evidence of formal qualifications possessed by the applicant.
The aptitude test must take account of the fact that the applicant is a qualified professional in the Member State of origin or the Member State from which he comes. It shall cover subjects to be selected from those on the list, knowledge of which is essential in order to be able to exercise the profession in the host Member State. The test may also include knowledge of the professional rules applicable to the activities in question in the host Member State. The detailed application of the aptitude test shall be determined by the competent authorities of that State with due regard to the rules of Community law.
The status, in the host Member State, of the applicant who wishes to prepare himself for the aptitude test in that State shall be determined by the competent authorities of that State.
3. Article 3 sets forth the principles governing access to a regulated profession and its exercise.
4. Article 4 permits the host State to make access conditional upon certain requirements. Paragraph 1(a) allows host States to require the applicant to provide evidence of professional experience where the duration of his education and training is at least one year less than that required in the host State.
Paragraph 1(b) sets forth three cases in which the host State may require the applicant to complete an adaptation period or pass an aptitude test:
- where the matters covered by the education and training he has received, as laid down by Article 3(a) and (b), differ substantially from those covered by the diploma required in the host Member State, or
- where ... the profession regulated in the host Member State comprises one or more regulated professional activities which are not in the profession regulated in the Member State from which the applicant originates or comes and that difference corresponds to specific education and training required in the host Member State and covers matters which differ substantially from those covered by the diploma adduced by the applicant, or
- where ... the profession regulated in the host Member State comprises one or more regulated professional activities which are not in the profession pursued by the applicant in the Member State from which he originates or comes, and that difference corresponds to specific education and training required in the host Member State and covers matters which differ substantially from those covered by the evidence of formal qualifications adduced by the applicant.
5. On the question whether an adaptation period is to be completed or an aptitude test passed, Article 4(1)(b) provides as follows:
Should the host Member State make use of this possibility, it must give the applicant the right to choose between an adaptation period and an aptitude test. By way of derogation from this principle, for professions whose practice requires precise knowledge of national law and in respect of which the provision of advice and/or assistance concerning national law is an essential and constant aspect of the professional activity, the host Member State may stipulate either an adaptation period or an aptitude test. Where the host Member State intends to introduce derogations for other professions as regards an applicant's right to choose, the procedure laid down in Article 10 shall apply.
6. Article 4(2) prohibits Member States from requiring evidence of professional experience while also requiring completion of an adaptation period or the passing of an aptitude test.
B - National legislation
7. The main provisions governing access to, and the exercise of, the legal profession in Italy are found in the Regio Decreto Legge No 1578 of 27 November 1993 (hereinafter the 1933 Law). Article 17 of this Law provides:
Conditions for enrolment in the register of lawyers:
1. Applicants must: be Italian nationals or of Italian origin from regions not politically unified with Italy;
...
4. possess a diploma in law conferred or certified by an Italian university;
5. have successfully completed a practical training period, of at least two years after graduation, in a lawyer's office, participating in civil and criminal proceedings in the Court of Appeal or in the Tribunale on conditions to be laid down under Article 101, or performed legal representation duties before the Preture within the meaning of Article 8 for the same period of time;
...
7. have their residence in the judicial district of the Court in which enrolment is requested.
8. Law No 31 of 9 February 1982 (hereafter the 1982 Law) provides for the transposition of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of the freedom to provide services. Article 2 of the 1982 Law provides:
Performance of professional services
Persons within the meaning of Article 1 [nationals of Member States authorised to practise as lawyers in their Member State of origin] shall be permitted to pursue lawyers' professional activities on a temporary basis in contentious and non-contentious matters in accordance with the detailed rules laid down in this title.
The establishment on the territory of the Republic of chambers or of a principle or branch office for the purpose of exercising the professional activities mentioned in the paragraph above shall not be permitted.
9. Decreto Legislativo No 115/1992 (hereinafter the 1992 Legislative Decree) provides for the transposition of Directive 89/48.
10. Article 6(2) provides:
Recognition [of the certificate of education and training] shall be conditional upon the passing of an aptitude test for the professions of lawyer, business consultant and intellectual property consultant.
11. Article 8(1) and (2) stipulates:
1. The aptitude test shall consist of an examination to ascertain professional knowledge and knowledge of the professional rules and to evaluate the applicant's ability to exercise the profession, taking into account that the applicant is a qualified professional in his country of origin or the country from which he comes.
2. The subjects to be examined shall be selected from among those whose knowledge is essential for the exercise of the profession.
12. Article 9 provides:
In concert with the Minister for the Coordination of Community policies and the Minister for Higher Education and Scientific and Technical Research and after consulting the Council of State, the competent Minister, within the meaning of Article 11 [in the present case, the Justice Minister], shall by decree issue the rules and guidelines for the application of Articles 5, 6, 7 and 8 concerning the individual professions and the professional training relevant to them.
13. Article 12(1), (3), (5), (6) and (7) provides:
1. The application for professional recognition must be presented to the competent Minister, together with the required documentation relating to the title to be recognised as indicated in Article 10.
...
3. Within 30 days from receipt of the application, the Minister shall confirm the completeness of the attached documentation and inform the applicant of any additional information to be provided.
...
5. The competent Minister shall decide upon recognition by issuing a decree within four months from the filing of the application or the provision of additional information in accordance with subparagraph 3 above.
6. In cases governed by Article 6 ("compensatory measures"), the decree shall set forth the conditions for the adaptation period or the aptitude test, specifying the competent organ or agency having competence in accordance with Article 15.
7. The decrees issued under subparagraph 5 above shall be published in the Gazzetta Ufficiale.
...
14. Article 15(1) provides:
1. The agencies and organs charged with maintaining the professional lists and registers shall be responsible in matters relating to the completion and evaluation of the adaptation period and the aptitude test.
...
15. Article 10 of Law No 146 of 22 February 1994 (hereinafter the 1994 Law) provides:
For the purposes of registration as lawyers, pursuant to Article 17 of the Regio Decreto Legge No 1578 of 27 November 1933 ... on the regulation of the profession of lawyer, nationals of the Member States of the European Community shall have the same status as Italian nationals.
III - Pre-litigation procedure and proceedings before the Court
16. Considering that certain provisions of Italian law governing access to, and the exercise of, the profession of lawyer were incompatible with the freedom of establishment and the freedom to provide services, the Commission, by letter of notice of 24 October 1997, initiated proceedings against Italy for failure to fulfil an obligation under Article 169 of the EC Treaty (now Article 226 EC). The Italian Government responded by letter of 29 January 1998. Since this response did not allay the Commission's suspicion of a Treaty infringement, it sent a reasoned opinion to the Italian Republic on 8 October 1998, requesting it to adopt the measures necessary to comply with the opinion within two months. The Italian Government replied by letter of 16 December 1998, to which were attached the additional observations of the Ministry of Justice.
17. After concluding that the Italian Republic had not fulfilled its obligations, the Commission, by application dated 14 April 1999 filed on 21 April, brought this action against the Italian Republic before the Court.
18. The Commission asks the Court to:
(1) declare that the Italian Republic
- by prohibiting, in breach of Article 59 of the EC Treaty (now, after amendment, Article 49 EC), lawyers established in other Member States and practising in Italy in the exercise of their freedom to provide services from having a specific infrastructure;
- by making enrolment of a lawyer in an Italian register of lawyers conditional upon possession of Italian citizenship, possession of qualifications acquired exclusively in Italy and residence in an Italian judicial district, in breach of Article 52 of the EC Treaty (now Article 43 EC);
- by applying the compensatory measures (aptitude test) provided for by Article 4 of Directive 89/48 in a discriminatory manner against lawyers from other Member States;
- by incompletely transposing Directive 89/48 given the absence of detailed rules governing the aptitude test for lawyers from other Member States;
has failed to fulfil its obligations under Articles 52 and 59 of the Treaty and Directive 89/48;
(2) order the Italian Republic to pay the costs.
IV - Assessment of the Commission's grounds of action
A - First ground: prohibition of the establishment of law chambers or of a principle or branch office
Arguments of the parties
19. By this first ground, the Commission contends that Article 2(2) of the 1982 Law is incompatible with Article 59 of the Treaty in that it prohibits lawyers established in other Member States and practising in Italy from having a specific infrastructure.
20. The Italian Government argues in substance that this prohibition is designed to prevent the circumvention of the rules governing freedom of establishment. Otherwise, lawyers merely by exercising freedom to provide services could set up an establishment just by creating a fixed structure. Italy also states that a draft law (disegno di legge Nuove disposizioni sulla professione di avvocato, hereinafter the proposed Law) provides for the abolition of Article 2(2) of the 1982 Law, which in any case has fallen into disuse.
Evaluation
21. As the Commission correctly argues, it is clear from the ruling in Gebhard that the contested prohibition in Article 2(2) of the 1982 Law is incompatible with the freedom to provide services. In paragraph 27 of that judgment, the Court held that the fact that the 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.
22. As regards the danger of circumvention, the Commission cites the ruling in Centros. In that case, which concerned a general prohibition enacted to prevent an abuse, the Court held that such a prohibition prevented the exercise of the right freely to set up a secondary establishment which Articles 52 and 58 are specifically intended to guarantee.
23. It follows that the general prohibition preventing a lawyer established in another Member State and practising in Italy in exercise of his freedom to provide services from setting up chambers or a principle or branch office is incompatible with the freedom to provide services.
24. Even if the contested condition is no longer applied, this does not change the fact that the maintenance of the relevant provision of law constitutes an infringement of Community law.
25. It is therefore proposed that the Court declare that the Italian Republic has failed to fulfil its obligations under Article 59 of the Treaty by having maintained Article 2(2) of the 1982 Law in existence.
B - Second ground: residency requirement
26. With respect to the second ground of the Commission's complaint, it is useful to treat the objection to the residency requirement separately from the objection to the nationality requirement and the qualifications.
Arguments of the parties
27. The Commission challenges, secondly, the obligation, under Article 17(1)(7) of the 1933 Law, for lawyers to have their residence in the judicial district in which they seek to register. In its view, that obligation contravenes the freedom of establishment guaranteed by Article 52 of the Treaty.
28. The Italian Government argues that the residency requirement serves a need of judicial organisation and facilitates monitoring. However, the requirement is no longer imposed in practice, in observance of the opinion of the Consiglio nazionale forense No 6 C/1994. Finally, the proposed law provides that the residency requirement is to be replaced by the criterion of place of business (domicilio professionale).
29. As regards the administrative practice mentioned by the Italian Government, the Commission asserts that administrative practice conforming to Community law is not sufficient to satisfy the requirements for the freedom of establishment. To do so, the law in question must be amended.
Assessment
30. According to established case-law, when a Member State makes enrolment in a professional register - in this case the lawyer's register - conditional on applicants' residing in the district of the bar or the court for which they seek to be registered, this constitutes a limitation of the freedom of establishment.
31. Even if it were proven that the provision in question is no longer applied in practice, so that the residency requirement is ignored, there would still be a breach of Community law. According to the established case-law of the Court, a Treaty infringement may also reside in the maintenance on the statute book of a national law which is incompatible with Community law.
32. It follows that the requirement that lawyers reside in the judicial district in which they seek to be registered violates freedom of establishment.
33. The Court is therefore asked to declare that the Italian Republic has failed to fulfil its obligations under Article 52 of the Treaty by having maintained Article 17(1)(7) of the 1933 Law in force.
C - Third complaint: other requirements for enrolment in the register of lawyers
Arguments of the parties
34. By the third ground of its complaint, the Commission seeks a declaration that the provisions of Article 17(1)(1), (1)(4), and (1)(5) of the 1933 Law violate freedom of establishment in so far as access to the lawyer's profession is made subject to possession of Italian nationality and an Italian diploma in law (laurea in giurisprudenza) and completion of a two-year apprenticeship in Italian courts. While Article 10 of the 1994 Law abolishes the nationality requirement, and the 1992 Legislative Decree eliminates the need for an Italian law degree and completion of an apprenticeship, the need for legal certainty still remains unsatisfied. The Commission refers on this point to the established and, in its opinion, relevant case-law of the Court. In particular, it states that Article 17 of the 1933 Law, which contains the main provisions governing access to the lawyer's profession, has not been amended. The wording of Article 17 has instead been left unchanged and no indication of the amending provisions has even been inserted. There would therefore be two contradictory norms in force. All of this, it concludes, makes it harder for the individual to know what the essential legal rules are and therefore complicates the exercise of the Community rights enjoyed by foreign lawyers.
35. The Italian Government argues that the actual legal situation conforms to Community law on the ground that the nationality requirement was abolished under the 1994 Law and the other two requirements were abolished under the 1992 Legislative Decree. Such changes to Article 17 of the 1933 Law, however implicit, suffice. Furthermore, the validity of the legal situation follows from the principle of the priority of the law which is later in time.
Assessment
36. It must be mentioned at the outset that the present case concerns the compatibility of Italian law with primary law, and not the transposition of a directive. The case-law cited by the Commission, almost all of which has to do with the transposition of a directive, is not automatically applicable in the present case. The Commission does not put forward appropriate reasons.
37. The Commission does not accuse the Italian Republic of not having adapted its legislation to Community law at all; rather, it asserts that the adaptation to primary law is unsatisfactory.
38. Contrary to the view of the Commission, as the Italian Republic has eliminated the three original requirements, it is not true that contradictory rules apply. Because the new, adequate rules apply, it cannot be said that the old rules, which according to the jurisprudence of the Court would infringe Community law, continue to apply.
39. Nor, similarly, does the present case involve an administrative practice that is contrary to Community law owing to unclear rules.
40. The much-cited judgment in Case C-71/92 concerns a different situation, in which one Member State allowed more exceptions than those provided for by a directive and is irrelevant in the present case.
41. In what follows, only those criteria which may be derived from case-law that is applicable to the facts here are considered.
42. The basic premiss for national law to be compatible with the primary law is that it must be effected by means of national provisions of a binding nature, which moreover - in case of amendment - have the same legal force as those laws which must be amended.
43. These two premisses are satisfied in the present case. The Commission itself does not question the binding nature of the amending provisions contained in the 1994 Law and the 1992 Legislative Decree. Neither can there be doubt as to the required legal status of both of these provisions.
44. It is necessary at this point to consider the requirement of Community law, mentioned by the Commission, that the Member States' legal rules should be worded unequivocally, so that the persons concerned can ascertain the full extent of their rights.
45. With respect to legal certainty and clarity, it all depends, according to established case-law (even on directives), on the legal position from the perspective of the persons concerned.
46. The aspect of the present case which is decisive is that the persons concerned were experienced lawyers from other Member States. According to the jurisprudence of the Court, national laws must also be clear when they concern fundamental provisions of Community law, and especially when nationals of Member States affected by such provisions are not normally aware of such provisions of Community law. It is however legitimate to expect the persons who are relevant here to be aware of the law of the Member State in which they wish to establish themselves.
47. Furthermore, the persons concerned wish to establish themselves in another Member State in order to practice law there. They constitute the very group on which the most stringent requirements ought to be imposed.
48. The Commission's argument, by which lawyers who wish to establish themselves in Italy would be discouraged by their first reading of the Italian rules, does not take account of the kind of behaviour that can, in principle, be expected of a lawyer. A careful lawyer, whom we must surely use as a yardstick, will, it is to be presumed, not be satisfied with the conclusion he reaches after a first reading of a legal text, especially if that conclusion is unsatisfactory.
49. In no circumstances is the scope of the three amendments to be determined only by recourse to interpretive rules of national law. The principle of the later rule belongs to the common heritage of legal methods in all of the Member States and not only in them. Precisely the lawyers affected by the provisions at issue in this case ought therefore to be familiar with them.
50. It is also wrong to argue that the amendments were introduced in legal acts which, in the Commission's view, have no bearing on the legal profession.
51. While it is true that the 1994 Law is a consolidated law, this is one of the typical instruments used by the Italian legislature to adapt national law to Community law. Lawyers who wish to establish themselves in Italy, at least, might be expected to know about the existence of such a consolidated law. Since, as the Commission rightly affirms, it relates to lawyers from other Member States, they of all persons are affected, in their right of access to the profession, by the compatibility of national rules with Community law.
52. The Commission, arguing that the legal situation is ambiguous, does not consider that the citizenship requirement was repealed by the 1994 Law, even in the form of a partial, formal derogation from Article 17 of the 1933 Law. It was not possible for Article 17 of the 1933 Law to be repealed in full, because the Article 17 citizenship requirement was to be kept in force with respect to citizens of third States.
53. The changes regarding the requirement for an Italian law degree and a training period in Italy were introduced by the 1992 Legislative Decree, which transposed Directive 89/48 into Italian law. It may be assumed that of all people the lawyers concerned know that lawyers are in possession of a graduate diploma, that they practise a regulated profession, and that they are not regulated by a sectorial directive on recognition. Furthermore, both before and after the issuance of the directive - and still today - there has been, and continues to be, wide-ranging discussion and debate in the literature on the meaning of this directive for lawyers. It may therefore be assumed that of all people lawyers who wish to establish themselves in another Member State will be familiar with its provisions. Lawyers who wish to establish themselves in Italy may also be expected to be aware of the Italian rules for implementing Directive 89/48. Identifying laws is part of the lawyer's profession and this must apply a fortiori to provisions of a Member State in which he intends to exercise his profession.
54. It follows that the challenge raised by the Commission in its third complaint is unfounded.
D - Fourth complaint: aptitude test
55. By its fourth ground of complaint, the Commission challenges the Italian authorities' specific application of the aptitude test provided by Directive 89/48 to lawyers from other Member States.
Arguments of the parties
56. The Commission accuses the Italian Republic of a discriminatory practice in administering the aptitude test to lawyers from other Member States. It argues that the aptitude test, viewed in the light of the pertinent provisions of Directive 89/48 and compared with the qualification examination administered to Italian lawyers, is disproportionately difficult. Directive 89/48 ultimately serves to facilitate the establishment of lawyers.
57. The Commission founds its argument on a general comparison of the subjects tested in the examination for Italian lawyers with those required of lawyers from other Member States. In the written test, lawyers from other Member States have to contend with four out of eleven subjects, while Italian lawyers have just three. In the oral test, lawyers from other Member States have to sit eleven subjects, Italian lawyers six. The Italian Republic is therefore abusing its right to require an aptitude test.
58. The Italian practice is clearly disproportionate for the additional reason that it fails to take account of the fact that lawyers from other Member States have professional experience, while the Italian candidates have no such experience or training. The Commission further accuses the Italian Republic of restricting the examination regarding recognition to a mere consideration of qualifications, without taking professional experience into account.
59. As there is in its view no sufficiently specific provision on the aptitude test, the Commission relies on the abovementioned general comparison of the examination requirements together with evidence based on various specific individual cases. The Commission focuses on cases from 1998, in which an aptitude test was required of lawyers from other Member States, and on one decision of an administrative tribunal, which in its view is correct, overturning a decision of the competent minister which it considers to contravene Community law.
60. The Commission claims infringement of the general principles of proportionality and non-discrimination which are among the provisions with which the Member States too are, under Article 1(g) of Directive 89/48, bound to comply.
61. The Italian Government argues in essence that a minimum of discretion is necessary in order that account be taken of the varying professional abilities of lawyers from other Member States. Italy also argues that the professional abilities of lawyers from other Member States do get taken into account. Both the 1992 Legislative Decree, and the application thereof, are compatible with Community law.
Evaluation
62. It is first of all essential to point out that this ground of complaint relates not to the transposition but the application of the aptitude test to a particular professional group, in this case lawyers. Article 1(g) of Directive 89/48 lays down a special regime for the professions that provide legal advice. It imposes certain limitations upon the principle of mutual trust on which Directive 89/48 is based. The Member States may therefore decline to provide the choice (available to the applicant in principle) between the aptitude test and the adaptation period, and simply impose the aptitude test instead.
63. The special provisions in place for the professions providing legal advice reflect the profound differences in education (duration and subjects covered) and professional training (nature and duration), as well as the fact that not all Member States require an examination for admission to the legal profession.
64. The aptitude test provided for in Article 1(g) of Directive 89/48 serves to evaluate the ability of the applicant to pursue a regulated profession. Member States may examine whether a lawyer from another Member State is able to adapt to this new professional environment.
65. Pursuant to Article 1(g), paragraph 2, it is first of all necessary to compare the training required by the host State with that already acquired by the applicant. That comparison is to be carried out on the basis of the diplomas or other formal qualifications presented by the applicant. The comparison must enable a list of subjects not already covered to be drawn up.
66. As is demonstrated by the wording of Article 1(g), and by the fact that not all applicants fulfil the same requirements, especially in the area of training and practice as a qualified lawyer, the comparison of the educational process must be undertaken in the light of the individual case and not by making a general comparison of educational systems or of persons with the same education.
67. The Commission has not demonstrated the extent to which the Italian Republic has failed to fulfil the above-illustrated provisions of Article 1(g) of Directive 89/48.
68. In light of the rather vague provisions of Directive 89/48, Member States enjoy a broad discretion in the preparation of the aptitude test, and in particular, they may determine the level of education required. They may also take account of consumer interests, in this case those of the lawyers' clients.
69. Comparing the implementing provisions of the Member States relating to the aptitude test, it is not to be overlooked that Directive 89/48 did not establish lower standards, but more stringent requirements.
70. The high standard of the aptitude test, made possible by Directive 89/48, constitutes another reason for the alternative modes of access to the legal profession, introduced by Directive 98/5, which are intended to facilitate such access. Comparing one of the alternative options introduced by Directive 98/5, specifically three years of effective and regular activity, with the aptitude test, there is in fact a substantial advantage to sitting the aptitude test, which is that it makes faster access to the profession possible.
71. The Member States' discretion is however not unlimited. The procedural protections provided for by Article 8(2) of Directive 89/48 provide some counter-balance: the time-limit for reaching a decision, the competent authority's duty to give reasons and the applicant's right to lodge a complaint.
72. Apart from the fact that the directive is to be interpreted in conformity with the primary law, in light of the freedom of establishment and the freedom to provide services in particular, Article 1(g), paragraph 3, of Directive 89/48 expressly provides that the detailed application of the aptitude test shall be determined ... with due regard to the rules of Community law, which include general principles of law. The Commission refers in this connection to the principle of equal treatment (prohibition on discrimination) and to the principle of proportionality.
73. The Commission's view that there is a clearly discriminatory practice against lawyers from other Member States in that national entrants to the profession possess neither a professional training nor experience of professional practice cannot be upheld. In fact, according to the Italian Government's affirmations, which were not challenged by the Commission, evidence must be provided of two years of practice forming part of the educational requirement for national entry to the profession.
74. The Commission then compares the two categories of persons, lawyers from other Member States and Italian lawyers. From the case-law of the Court, cited by the Commission, it emerges that differences in the legal treatment of the two groups, in this case the differences between the examinations applicable to each group, must be proportionate to the disparity between the two groups.
75. It must be found on this point that the provisions of Directive 89/48 applicable to lawyers derive specifically from the disparity between both groups of persons. Unlike the position in the cases cited by the Commission, the present case does not relate to two homogenous groups that are comparable for the purposes of the manner in which the law treats them. The Commission bases its arguments on specific individual cases concerning lawyers from other Member States. The Commission ought therefore to have explained why it was disproportionate to prescribe those particular subjects, or in what way the procedure was otherwise disproportionate in these cases.
76. It must none the less be added that the review of the Italian practice the Commission is asking for implies a review by the Court of the Member States' exercise of their discretion. The Court would have to review the evaluations upon which the decisions of the competent authorities of the Member States were based.
77. It may be concluded from the Commission's arguments only that it considers the specific cases in which there were examinations in more than eight subjects to violate Community law, and not those cases in which the examination is limited to one subject.
78. The Commission has not, moreover, been able to demonstrate in what respect the Italian practice fails to take account of the fact that the applicant is a qualified professional. A relevant infringement in this connection might be the fact that the subjects are tested academically but the ability to apply them in practice is not. It would also be impermissible if the aptitude test were organised like the normal examination for admission to the legal profession.
79. In the absence of a uniform practice, the Commission ought not to have limited itself to an overall evaluation, but ought at least to have provided evidence of infringement of Community law in individual cases. As it did not do so to the extent required, the challenge raised under the fourth complaint is unfounded.
E - Fifth complaint: incorrect transposition of Directive 89/48
80. By the fifth ground of its complaint, the Commission accuses the Italian Republic of incorrectly transposing Directive 89/48 as the transposition is incomplete.
Arguments of the parties
81. The Commission bases its challenge on the fact that the Italian provisions for the transposition of Directive 89/48 do not regulate, or do not regulate precisely enough, certain aspects of the aptitude test. For example, there are no rules regulating the composition of the examination board. Furthermore, the list of subjects, in particular which subjects are to be obligatory and which left to the choice of the applicants, needs to be specified in greater detail. Finally, there are no provisions for the form of the test (written or oral), or for the grading scale. The 1992 Legislative Decree contains too many gaps, leaving applicants in a situation of total legal uncertainty. This defect was to have been remedied by the implementing decree provided for in Article 9 of the 1992 Legislative Decree but not yet adopted.
82. The Italian Government emphasises that an implementing decree can only be adopted under domestic law. Moreover, the 1992 Legislative Decree in itself constitutes a complete transposition. The implementing decree would just contain more procedural rules on, for example, the composition of the examination board. But the substantive criteria are all provided for by the Legislative Decree.
Evaluation
83. For purposes of clarification, it is first of all necessary to point out that the question whether directives are to be transposed at one or more particular legislative levels is a question of domestic law. It is therefore for the Italian Republic in this case to decide whether to effect transposition by means of a legislative decree only or by means of a legislative decree together with implementing provisions, in so far as such provisions are binding.
84. Next, regarding the question of complete transposition, it is first of all necessary to set forth the standards against which the Italian provisions must be evaluated.
85. It must be assumed that, according to the jurisprudence of the Court, transposition cannot be effected solely by means of administrative measures.
86. As I have already mentioned, the rules governing the aptitude test in Article 1(g) of Directive 89/48 relate to the application of the aptitude test in individual cases. That is primarily apparent from the list of subjects drawn up, which includes subjects not covered.
87. Secondly, Article 1(g), paragraph 3, of Directive 89/48 also contains rules of a general character. For example it obliges Member States to determine the detailed application of the aptitude test.
88. It follows from all these provisions that not all aspects of the aptitude test can be regulated in an abstract and general way, nor can everything be left to the competent authorities to decide on a case-by-case basis. Both are extreme positions which the directive precludes.
89. The detailed application of the aptitude test must extend to procedural rules. The Member States' duty to specify the detailed aspects of the aptitude test, in other words its content, on the other hand derives from the basic obligation to transpose Directive 89/48. It is therefore necessary to adopt implementing provisions specific to the profession. In relation to the aptitude test for lawyers from other Member States, it would at least be necessary to lay down a list of subjects knowledge of which is essential in order to be able to exercise the profession in the host Member State pursuant to Article 1(g), paragraph 3, of Directive 89/48.
90. The Member States' duty to determine the detailed application of the aptitude test may comprehend only those aspects, which can always, or at least in certain cases, be regulated in the abstract without unduly limiting the discretion required by the directive in the evaluation of individual cases.
91. The number of examinations to be held annually, the type and duration of the examination, the grading scale, the number of times the test may be retaken, the minimum and maximum period of time between various parts of the examination, and the competent examination boards and their composition are examples of what could be determined.
92. It must be added that Article 1(g), paragraph 3, of 89/48, as a provision on the determination of the detailed application, expressly refers to the rules of Community law. These include the principles of legal certainty and clarity.
93. The rule in Article 8 of the 1992 Legislative Decree does not therefore qualify as a determination of the detailed application for the purposes of Directive 89/48. Apart from this, it does not lay down to a sufficient extent the remaining provisions of the directive.
94. Because the 1992 Legislative Decree does not regulate the scope of the competent authorities' discretion clearly, the persons concerned, in this case the applicants, would be left in a state of uncertainty as to the extent to which they may rely on Community law.
95. As a result, Article 8 of the 1992 Legislative Decree fails to satisfy the need for legal certainty and clarity. The Italian Government has not been able to point to other provisions that effect a complete transposition of Article 1(g) of Directive 89/48. The Italian Government argued in this respect that Article 8 of the 1992 Legislative Decree is not the only provision applicable to the aptitude test, but the remaining provisions of the Legislative Decree govern other aspects than those relevant here relating to the recognition of professional qualifications.
96. It follows from all the foregoing that by failing to determine the detailed application of the aptitude test with sufficient precision, the Italian Republic has not completely transposed Directive 89/48.
V - Costs
97. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Under Article 69(3), paragraph 1, where each party fails on one or more heads, the Court may order that costs be shared or decide that each party should bear its own costs.
98. As the Commission and the Italian Republic have each been partially unsuccessful in their claims, they should be ordered to pay their respective costs.
VI - Conclusion
99. In view of the above, I propose that the Court:
(1) declare that,
- by maintaining, contrary to Article 59 of the EC Treaty (now, after amendment, Article 49 EC), a general prohibition whereby lawyers established in other Member States and practising in Italy cannot have a particular infrastructure;
- by requiring members of the Bar to reside in the judicial district of the court to which the Bar at which they are enrolled is attached, contrary to Article 52 of the EC Treaty (now, after amendment, Article 43 EC); and
- by incompletely transposing Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration, inasmuch as rules have not been laid down which determine with sufficient precision the conduct of the aptitude test,
the Italian Republic has failed to fulfil its obligations under Articles 52 and 59 of the EC Treaty and Directive 89/48.
(2) dismiss the remainder of the application,
(3) order the Commission and the Italian Republic to bear their own costs.