WRITTEN QUESTION E-3769/97 by Cristiana Muscardini (NI) to the Commission (21 November 1997)

Subject: Restrictions on practice of the profession of lawyer

Will the Commission serve formal notice on the Italian Government, which, disregarding Community Directives, is refusing de facto to grant mutual recognition of diplomas and obstructing the freedom to provide services, with the result that foreign nationals are prohibited from opening an office and cannot satisfy the conditions for entry on the rolls and the procedure for recognizing diplomas cannot be completed?

In one paradoxical case, Giovanni Clemente was registered as a lawyer in Saarland after he moved to Germany. However, he was struck off the rolls in Sanremo, and the authorization to practise obtained from a Saarbrücken court was consequently withdrawn.

What will the Commission do to ensure that Italian members of the legal profession can make use of the facilities existing in other countries?

What will it do to enable foreign nationals to practise as lawyers in Italy?

What will it do to simplify the jumble of rules and formalities entailed in the procedure for recognition of diplomas?

Answer given by Mr Monti on behalf of the Commission (6 January 1998)

Community law comprises a number of rules designed to guarantee and facilitate free movement for lawyers, the main ones being Directive 77/249/EEC to facilitate the effective exercise by lawyers of freedom to provide services ((OJ L 78, 26.3.1977. )), Directive 89/48/EEC 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 ((OJ L 19, 24.1.1989. )), and the relevant provisions of the EC Treaty, in particular Articles 52 and 59 on the freedom to provide services and the right of establishment, as interpreted in a long line of decisions by the Court of Justice. This body of rules will be supplemented by the Parliament and Council Directive to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained ((Not yet published. )).

If the single market is to function properly, however, Member States' rules and practices must comply with Community law. The Commission takes the view that several aspects of Italy's legislation and administrative practices concerning the freedom to provide services and the right of establishment of lawyers are incompatible with Community law, and it has therefore sent the Italian authorities a letter of formal notice. This is the first stage in infringement proceedings under Article 169 of the EC Treaty.

The Commission has, for example, drawn the Italian Government's attention to the fact that the rule whereby lawyers wishing to become or remain a member of an Italian bar must reside in an Italian judicial district constitutes an undue obstacle for lawyers from other Member States wishing to practise in Italy without giving up their establishment in their home Member State and also for Italian lawyers wishing to establish themselves in another Member State on the basis of their membership of an Italian bar. The Commission has therefore called on Italy to bring its rules into line with Community law and, pending the formal amendment of those rules, to ensure that its authorities handle individual cases in accordance with Community law.

The Commission has also urged Italy to take the necessary steps to ensure that the Community rules on the recognition of lawyers' qualifications are effectively and correctly applied in that country.

Further developments will depend on the Italian authorities' response.