WRITTEN QUESTION No. 3769/97 by Cristiana MUSCARDINI to the Commission. Restrictions on practice of the profession of lawyer
Date: 1997-11-21
Institutions: European Parliament, MUSCARDINI
Subjects: EU law - national law, Italy, approximation of laws, free movement of workers, freedom to provide services, lawyer, mutual recognition principle, recognition of diplomas, right of establishment, single market

16. 6. 98

EN

Official Journal of the European Communities

C 187/53

(98/C 187/84)

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 Saarbru¤cken
court was consequently withdrawn.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 (1), 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(cid:146)  duration (2),  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 (3).

If  the  single  market  is  to  function  properly,  however,  Member  States(cid:146)  rules  and  practices  must  comply  with
Community law. The Commission takes the view that several aspects of Italy(cid:146)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(cid:146)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(cid:146) qualifications are effectively and correctly applied in that country.

Further developments will depend on the Italian authorities(cid:146) response.

(1)  OJ L 78, 26.3.1977.
(2)  OJ L 19, 24.1.1989.
(3)  Not yet published.