Keywords

Summary



Keywords

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))

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.)

Summary

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 obligation hinders the exercise of that right.

( see paras 27-28, 57, operative part 1 )

3. The second subparagraph 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' duration provides that, in order to permit the aptitude test to be organised, 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 training required in [their] Member State and that received by the applicant, are not covered by the diploma or other evidence of formal qualifications possessed 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 )