Keywords

Summary



Keywords

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 acquired - Directive 98/5 - Migrant lawyers practising the law of the host Member State without prior training in that law - Whether permissible

(EC Treaty, Art. 52 (now, after amendment, Art. 43); Directive 98/5/EC of the European Parliament and of the Council)

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 acquired - Directive 98/5 - Exercise by migrant lawyers of the law of the host Member State without prior proof of knowledge of that law - Whether permissible - Discretion of the Community legislature in making a choice of the method and level of consumer protection and of ensuring the proper administration of justice

(Directive 98/5 of the European Parliament and of the Council)

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 acquired - Directive 98/5 - Legal basis - Practice as a self-employed lawyer - Art. 57(1) and (2), first and third sentences, of the Treaty (now, after amendment, Art. 47(1) and (2), first and third sentences EC)

(EC Treaty, Art. 57(1), first and third sentences of Art. 57(2), and Art. 189b (now, after amendment, Art. 47(1), first and third sentences of Art. 47(2) EC, and Art. 251 EC); Directive 98/5 of the European Parliament and of the Council, Arts 2, 5 and 11; Council Directive 89/48)

4. Acts of the institutions - Statement of reasons - Obligation - Directive 98/5 - Practice by migrant lawyers of the law of the host Member State without prior proof of knowledge of that law - No obligation to give specific reasons

(EC Treaty, Art. 190 (now Art. 253 EC)); Directive 98/5 of the European Parliament and of the Council)

Summary

1. Directive 98/5 to facilitate the practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained, which abolishes all requirement of prior training in the law of the host Member State and permits migrant lawyers to practise that law, does not infringe the general principle of equality of which Article 52 of the Treaty (now, after amendment, Article 43 EC) is a specific expression, since the situation of a migrant lawyer practising under his home-country title and the situation of a migrant lawyer practising under the professional title of the host Member State are not comparable.

Whereas the latter may undertake all the activities open or reserved to the profession of lawyer by the host Member State, the former may be forbidden to pursue certain activities and, with regard to the representation or defence of clients in legal proceedings, may be subject to certain obligations.

( see paras 20, 23-25 )

2. The Community legislature, with a view to making it easier for a particular class of migrant lawyers to exercise the fundamental freedom of establishment, has, by means of Directive 98/5 to facilitate the practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained, chosen, in preference to a system of a priori testing of qualification in the national law of the host Member State, a plan of action combining consumer information, restrictions on the extent to which or the detailed rules under which certain activities of the profession may be practised, a number of applicable rules of professional conduct, compulsory insurance, as well as a system of discipline involving both the competent authorities of the home Member State and the host State. The legislature has not abolished the requirement that the lawyer concerned should know the national law applicable in the cases he handles, but has simply released him from the obligation to prove that knowledge in advance. It has thus allowed, in some circumstances, gradual assimilation of knowledge through practice, that assimilation being made easier by experience of other laws gained in the home Member State. It was also able to take account of the dissuasive effect of the system of discipline and the rules of professional liability.

In making such a choice of the method and level of consumer protection and of ensuring the proper administration of justice, the Community legislature has not overstepped the limits of the discretion it enjoys for the purpose of determining the acceptable level of protection of the general public interest.

( see paras 32, 43-44 )

3. Directive 98/5 to facilitate the practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained was duly adopted by a qualified majority in accordance with the procedure laid down in Article 189b of the Treaty (now, after amendment, Article 251 EC), and on the basis of Article 57(1) and the first and third sentences of Article 57(2) of the Treaty (now, after amendment, Article 47(1) and the first and third sentences of Article 47(2) EC), in so far as it regulates the practice of that profession in a self-employed capacity.

By affirming, in Articles 2 and 5, the right, subject to certain exceptions, for any lawyer to pursue on a permanent basis, in any other Member State, under his home-country professional title, the same professional activities as a lawyer practising under the relevant professional title of the host Member State, including advising on the latter's national law, the directive establishes a mechanism for mutual recognition of the professional titles of migrant lawyers wishing to practise under their home-country professional title. That mechanism supplements that established by 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 which, as regards lawyers, is intended to authorise unrestricted practice of the profession under the professional title of the host Member State. Consequently, Directive 98/5 does not amend the existing principles laid down by law governing the professions within the meaning of the second sentence of Article 57(2) of the Treaty, which would have necessitated the unanimous adoption of Directive 98/5.

Article 11 of Directive 98/5 concerning the joint practice of the profession of lawyer does not deal with a condition for access to the profession of lawyer but a condition for the exercise of that profession. That provision does not require the host Member State to accept that condition if it does not permit joint practice by lawyers practising under the relevant professional title. Consequently, the rules on joint practice could properly be adopted on the basis of the first and third sentences of Article 57(2) of the Treaty.

( see paras 55-59 )

4. Since Directive 98/5 to facilitate the practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained contains both a coherent and sufficient description of the general situation which led to its adoption and a statement of the general objectives which it proposes to attain, the Community legislature, in its adoption of a measure of general application, has satisfied the obligation to state reasons laid down in Article 190 of the Treaty (now Article 253 EC). That obligation did not require it to give specific reasons for its decision, with a view to implementing its general objectives, to remove the requirement to prove prior qualification in the national law of the host Member State and to grant the corresponding right immediately to practise the profession in the area of that law.

( see paras 63-66 )