3.

This finding is probably sufficient for the court making the reference because it enables it, in deciding the application lodged by Mr Razanatsimba, to leave aside forthwith the arguments based on the Lomé Convention. However I do not intend to let that finding rest but would like in addition to comment on the interpretation of Article 62, in other words on the question of the meaning of the concept of ‘non-discrimination’ contained therein. Three possibilities come into consideration in this connexion: — It may, if one confines oneself to the duty imposed on the Member States in accordance with the facts of the main action, be the requirement not to discriminate against the nationals of the ACP States with regard to the arrangements relating to establishment for the professions in the sense that within the group of ACP States there is a provision stipulating equal treatment where the same circumstances prevail. — It might also involve according to the nationals of that group of States the most favourable treatment which the Member State concerned has given to any ACP State and its nationals. — Finally, the conclusion might even be drawn from Article 62, and this is apparently Mr Razanatsimba's argument, that the Member States are under a duty to nationals of the ACP States to accord them national treatment, in other words to treat them as if they were nationals of the Member State concerned or those of another Member State if nationality is a decisive factor in national rules. (a) In my opinion the latter possibility is certainly excluded. The very wording of the provision indicates this. If the Convention had really intended national treatment it would, as was correctly stressed, have been possible to find a different and simpler form of wording. One need only recall the corresponding provisions of the EEC Treaty or Article 6 of the Bilateral Convention which was signed between France and Madagascar in 1960. Significantly, Article 62 of the Lomé Convention is not drafted in the same way. On the contrary groups of States are formed, as we have seen, whose nationals may not be discriminated against by the States of any other group. It is also important when interpreting the Convention to consider its objectives, which result from the preamble thereto. It speaks of having regard to the respective levels of development, of the resolve to intensify the efforts for the economic development and social progress of the ACP States, and of the anxiety to promote the industrial development of the ACP States. It would be difficult to reconcile complete national treatment therewith. For, on the one hand, the danger would arise with such treatment that the ACP countries would lose by emigration skilled personnel important for the development of their own economic structure. In addition, since under the principle of reciprocity Article 62 applies also to the ACP States, it would doubtless mean for those countries, with their varying levels of development, a far too heavy burden if they had to accord to nationals of the Member States national treatment or the treatment which applies to nationals of other developing countries. For that reason, as the French Government has pointed out, a series of African countries are anxious to replace conventions containing such obligations to accord national treatment by conventions containing simple prohibitions on discrimination. It is therefore understandable that the abovementioned Franco-Madagascan Convention of 1960, which provided for national treatment, was terminated by Madagascar in 1973 and was replaced by a new convention which, as far as the exercise of the profession of advocate is concerned, only speaks of the provision of specific services. Finally the normal practice of the Community in this field and a comparison with the two predecessors of the Lomé Convention, the Conventions of Association of 1963 and 1969, are also of interest, and it may be assumed with regard to those conventions that there was no intention to depart from their basic system. As the Commission has explained, no convention with a third country, even the Conventions of Association with Greece and Turkey which are intended to pave the way for full membership, has provided for national treatment in the field of the right of establishment. Against this background, it must appear surprising to assume the existence of such an extensive duty with regard to a Convention of Association concluded with a large number of African and other countries which have quite different structures and varying levels of development. Article 29 and Article 31 respectively of the two earlier Conventions of Association with African countries and Madagascar provided only for the duty progressively to give equal treatment to the nationals and companies or firms of all Member States in each associated State as regards the right of establishment. It was clear from the most-favoured third-nation clause contained in the following articles that this does not in fact mean national treatment or that clause would otherwise have been purposeless. In addition a corresponding right for the associated States existed only indirectly because the requirement of equal treatment for nationals of a Member State was only supposed to apply if that State, and this depended solely on its own decision, granted a national of the associated State concerned the same privileges for the same activity. The fact therefore that in the Lomé Convention an obligation of reciprocity was adopted was actually a step forward in the sense of a concession granted to the ACP States. On the other hand there is no indication that an even more extensive step was envisaged in the sense of national treatment, especially since the present Convention speaks only very vaguely of ‘arrangements … in matters of establishment’, whilst the earlier Conventions used the term ‘right of establishment’ with an exhaustive definition. (b) It is also incorrect that the prohibition on discriminatory treatment under Article 62 of the Lomé Convention actually involves the duty to accord most-favoured third-nation treatment, in other words that because special conventions exist with individual African countries, according to which the decisive factor with regard to the profession of advocate is not French nationality, under this provision France is under a duty to accord such national treatment also to nationals of those African States in respect of which there is no corresponding convention. If most-favoured third-nation treatment were meant in Article 62 of the Lomé Convention it would have been worded differently. In this connexion it is sufficient merely to refer for example to Articles 30 or 32 of the previous Conventions of Association, which expressly speak of more favourable treatment. In addition, if, which is not quite clear, it were decisive with regard to most-favoured third-nation treatment, it would be difficult to determine which of the different special agreements which constitute a coherent system with reciprocal obligations must be regarded as the most favourable. Moreover, if only the rights arising from such conventions were important, and it were not necessary to take into consideration the obligations imposed on the African States, the nationals of States without special conventions would actually receive more favourable treatment because they would have a right of establishment without needing to anticipate being harmed in their home State on account of the freedom of establishment for nationals of the Member States. It must nevertheless be borne in mind that Madagascar withdrew from a former convention providing for national treatment and that it was merely replaced by a judicial convention which is restricted to the provision of specific services by advocates. Accordingly it is impossible to accept that with regard to nationals of this State the legal situation under the convention from which the State withdrew should continue to exist without Madagascar's being affected by a corresponding duty under the Convention of Association. (c) Thus the only remaining possibility is to understand Article 62 of the Lomé Convention as meaning that each Member State of the Community, if I restrict myself to this aspect, is under a duty not to discriminate between nationals of the ACP States, in other words not to accord different treatment in the same circumstances. In this connexion it may be important, and this is an intrinsic feature of the prohibition on discrimination, that special agreements with reciprocal obligations exist between certain States. Their nationals are therefore in a different position from that of nationals of States in which no such state of affairs exists. In this connexion the representative of the French Government based an important argument on the Vienna Convention on Consular Relations even though according to him it is impossible to speak of discrimination in cases in which in the sending State too the practice is restrictive application, or in which two States guarantee one another more favourable treatment. Special bilateral agreements must therefore be disregarded in the context of the requirement of equal treatment under Article 62 of the Lomé Convention. Its rules accordingly take effect, so far as the right of establishment is concerned, essentially in those cases in which States regulate questions relating to this right purely unilaterally. (d) After all these considerations the only conclusion which remains is that the plaintiff in the main action cannot derive from Article 62 of the Lomé Convention the right to be admitted to pupillage regardless of his nationality. Such a right cannot be based on the prohibition on discrimination contained only in Article 62 even in conjunction with certain bilateral conventions concluded by France. In any case the discretionary power of the Member States enshrined in the second paragraph of Article 62 is not compatible therewith. No conditions at all apply to the exercise of that power, apart from the limitation of absolute arbitrariness, and it certainly also permits different legal situations to be taken into consideration.