Opinion of Mr Advocate General Darmon delivered on 24 March 1988. - Commission of the European Communities v Hellenic Republic. - Failure of a Member State to fulfil its obligations - Discrimination on the ground of nationality - Professions of architect, civil engineer, surveyor and lawyer - Conditions for access to and exercise of those professions. - Case 38/87.



European Court reports 1988 Page 04415



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The present proceedings concern an application for a declaration that by requiring Greek nationality as a precondition for access to the professions of architect, civil engineer, surveyor and lawyer and for the exercise thereof, the Hellenic Republic has failed to fulfil its obligations under Articles 52 and 59 of the Treaty .

2 . As regards the professions of civil engineer, architect and surveyor, the Hellenic Republic claims that the rules at issue merely impose upon Greek graduates the obligation to enrol with the Technical Chamber of Greece, which must grant such enrolment, and do not impose a similar requirement upon Community nationals .

3 . In the first place, as was confirmed at the hearing , enrolment with the Technical Chamber of Greece is in any event a precondition for practising the professions concerned . Moreover, certain rights ( such as recovery of fees and training ) derive from membership of that Chamber . Accordingly, the conditions for membership of the Technical Chamber should be absolutely the same both for Greeks and for other Community nationals, by virtue of the principle of national treatment . Can the contested rules be regarded as taking account of that requirement?

4 . The legislation at issue makes two specific references to the position regarding foreigners : one concerning persons of Greek origin and one concerning the possibility of foreigners being appointed honorary members of the Chamber .

5 . In the Commission' s view, it must be inferred that those are the only such possibilities . The Greek Government contends, however, that the legislation at issue authorizes the enrolment of Community nationals . Moreover, that is also the interpretation which the Technical Chamber has consistently adopted .

6 . Attention must be drawn to the fact that the legislation at issue makes no provision in that regard . But such a difference of views as to the scope of the contested provisions makes it clear that they involve, at the very least, a significant margin of discretion, assuming that, leaving aside the two specific cases which I have just mentioned, the legislation does not prevent the enrolment of Community nationals . Furthermore, I cannot fail to mention the fact that by a letter dated 17 July 1986, in response to the reasoned opinion, the Permanent Representation of the Hellenic Republic to the Communities stated :

"As regards the discrimination on the basis of nationality which exists in respect of access to the professions of architect, civil engineer, surveyor and lawyer, the Ministries responsible have already initiated the procedure for drafting the relevant legislative provisions which will remove the nationality condition ".

7 . There could be no clearer admission of the existence of discrimination in positive law, and that letter post-dates Law No . 1486/84 which, according to the Greek Government' s defence, removed the condition of nationality .

8 . Therefore, I am very much inclined to take the view that the possibilities of enrolment of foreigners with the Technical Chamber are provided for exhaustively in the Greek rules . The Court held, in Commission v France,(1 )that legislation containing an implicit and clear prohibition can give rise to a breach by a Member State of its Treaty obligations . And the Court also stated that the possibility of applying a general principle of national law enabling the contested provision to be interpreted as being in conformity with Community law nevertheless leaves some doubts about the position under the applicable law . Accordingly, in this case, the interpretation of the Greek rules adopted by the Technical Chamber regarding the enrolment of Community nationals does not constitute a sufficient basis for ensuring compliance with the requirements laid down by the Treaty . That is a matter of administrative practice which, even if consistent, does not affect the existence of an infringement of Treaty obligations . In that connection, I would refer to the case of Commission v Italy,(2 )in which it was held that the incompatibility of national legislation with Treaty provisions, even those which are directly applicable, can be removed only by binding domestic provisions having the same legal status as those which are to be amended, and that mere administrative practices, which by their very nature may be changed at the will of the administration and are not adequately publicized, cannot be regarded as ensuring due compliance with the obligations imposed by the Treaty .

9 . In so far as the exercise of the professions concerned is conditional upon enrolment with the Technical Chamber and no distinction is drawn between permanent and temporary exercise of those professions, the grounds which prompt me to conclude that there has been an infringement of Article 52 similarly point to an infringement of Article 59 .

10 . However, let me emphasize that the issue here is confined to the discriminatory aspects of the legislation . The question remains open whether, in the field of the provision of services, the obligation to enrol is lawful, even though it may involve no discrimination . A review of that question, which is similar to those raised in particular in the cases of Van Binsbergen ( 3 )and Webb,(4 )does not come within the terms of the present application . Here we need merely satisfy ourselves that the essential principle of non-discrimination contained in the third paragraph of Article 60 of the Treaty has not been contravened with respect to the provision of services .

11 . As regards the profession of lawyer, the Greek legislation is manifestly in breach of Article 52, as that article has been consistently interpreted since the Court gave judgment in Reyners : access to the profession is reserved to Greek nationals .

12 . The Greek Government has stated that the delay in complying with its Treaty obligations is accounted for in particular by its concern to take account of a Community directive which has yet to be adopted . Let me clarify any ambiguity, if such clarification is necessary, by pointing out that, since its judgment in Reyners, the Court has rejected the contention that the direct effect of Article 52 should be subordinated to the adoption of the directives provided for in Articles 54 and 57 .

13 . Appraisal of the contested rules in the light of Article 59 does not call for a long disquisition . The Hellenic Republic, which states that the condition concerning nationality is to be removed by forthcoming legislation on access to the profession of lawyer and the exercise thereof, does not deny that infringement of its obligations .

14 . Consequently, I consider that the Court' s ruling should be as follows :

by maintaining in force in its legislation discriminatory provisions concerning access to and exercise of the professions of architect, civil engineer, surveyor and lawyer, the Hellenic Republic has failed to fulfil its obligations under Articles 52 and 59 of the EEC Treaty;

the Hellenic Republic is ordered to pay the costs .

(*) Translated from the French .

( 1 ) Judgment of 7 February 1985 in Case 173/83 (( 1985 )) ECR 491 .

( 2 ) Judgment of 15 October 1986, Case 168/85 (( 1986 )) ECR 2945; the same conclusion was reached in the judgment of 13 October 1987 in Case 236/85 Commission v Netherlands (( 1987 )) ECR 3989 .

( 3 ) Judgment of 3 December 1974 in Case 33/74 (( 1974 )) ECR 1299 .

( 4 ) Judgment of 17 December 1981 in Case 279/80 (( 1981 )) ECR 3305 .