Judgment of the Court (Fifth Chamber) 7 March 2002 in Case C-145/99: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Articles 52 and 59 of the EC Treaty (now, after amendment, Articles 43 EC and 49 EC) — Directive 89/48/EEC — Access to and practice of the profession of lawyer)
Date: 2002-05-04
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, freedom to provide services, lawyer, recognition of diplomas

C 109/2

EN

Official Journal of the European Communities

4.5.2002

(Italy) for a preliminary ruling in the criminal proceedings
before that court against Manuele Arduino, third parties: Diego
Dessi, Giovanni Bertolotto, and Compagnia Assicuratrice RAS
SpA, on the interpretation of Article 85 of the EC Treaty (now
Article 81 EC), the Court, composed of: G.C. Rodrı´guez
Iglesias, President, P. Jann, F. Macken, N. Colneric and S. von
Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward,
J.-P. Puissochet, M. Wathelet (Rapporteur),
A. La Pergola,
R. Schintgen, V. Skouris and J.N. Cunha Rodrigues, Judges;
P. Léger, Advocate General; H.A. Rühl, Principal Administrator,
Registrar, has given a judgment on 19 February 2002, in
which it has ruled:

Articles 5 and 85 of the EC Treaty (now Articles 10 EC and 81 EC)
do not preclude a Member State from adopting a law or regulation
which approves, on the basis of a draft produced by a professional
body of members of the Bar, a tariff fixing minimum and maximum
fees for members of the profession, where that State measure forms
part of a procedure such as that laid down in Royal Decree-Law
No 1578 of 27 November 1933, as amended.

(1) OJ C 100 of 10.4.1999.

JUDGMENT OF THE COURT

(Fifth Chamber)

7 March 2002

U. Leanza, assisted by F. Quadri): Application for a declaration
that:

— by maintaining, contrary to Article 59 of the EC Treaty
(now, after amendment, Article 49 EC), the general
prohibition whereby lawyers established in other Member
States and practising in Italy in the exercise of their
freedom to provide services cannot have in that State the
infrastructure needed to provide their services,

— by making enrolment at the Italian Bar conditional upon
the possession of Italian nationality, the possession of
qualifications acquired only in Italy and maintenance of a
residence in an Italian judicial district, contrary to
Article 52 of the EC Treaty (now, after amendment,
Article 43 EC),

— by applying in a discriminatory manner against lawyers
from other Member States the ‘compensatory measures’
(aptitude test) provided for in Article 4 of Council
Directive 89/48/EEC of 21 December 1988 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 1989 L 19,
p. 16), and

— by incompletely transposing Directive 89/48, inasmuch
as no rules have been laid down regulating the conduct
of the aptitude test for lawyers from other Member States,
the Italian Republic has failed to fulfil its obligations
under Articles 52 and 59 of the Treaty and Directive
89/48,

in Case C-145/99: Commission of the European Communi-
ties v Italian Republic (1)

the Court (Fifth Chamber), C. Stix-Hackl, Advocate General;
L. Hewlett, Administrator,
for the Registrar, has given a
judgment on 7 March 2002, in which it:

(Failure by a Member State to fulfil its obligations —
Articles 52 and 59 of the EC Treaty (now, after amendment,
Articles 43 EC and 49 EC) — Directive 89/48/EEC —
Access to and practice of the profession of lawyer)

1. Declares that:

(2002/C 109/03)

(Language of the case: Italian)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-145/99, Commission of the European Communities
(Agents: E. Traversa and B. Mongin) v Italian Republic (Agent:

— by maintaining, contrary to Article 59 of the EC Treaty
the general
(now, after amendment, Article 49 EC),
prohibition whereby lawyers established in other Member
States and practising in Italy in the exercise of their
freedom to provide services cannot have in that State the
infrastructure needed to provide their services,

— by requiring members of the Bar to reside in the judicial
district of the court to which the Bar at which they are
enrolled is attached, contrary to Article 52 of the EC
Treaty (now, after amendment, Article 43 EC), and

4.5.2002

EN

Official Journal of the European Communities

C 109/3

— by

incompletely

Council Directive
transposing
89/48/EEC of 21 December 1988 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, inasmuch as no rules have
been laid down to regulate the conduct of the aptitude test
for lawyers from other Member States,

the Italian Republic has failed to fulfil its obligations under
Articles 52 and 59 of the Treaty and Directive 89/48;

2. Dismisses the remainder of the application;

3. Orders the Italian Republic and the Commission of

the

European Communities to bear their own costs.

(1) OJ C 188 of 3.7.1999.

JUDGMENT OF THE COURT

(Sixth Chamber)

5 February 2002

in Case C-277/99 (Reference for a preliminary ruling from
the Verwaltungsgerichtshof): Doris Kaske v Landesge-
schäftsstelle des Arbeitsmarktservice Wien (1)

(Social security for migrant workers — Unemployment
insurance — Replacing social security conventions concluded
between Member States with Regulation (EEC) No 1408/71
— Preservation of advantages enjoyed previously as a result
of a combination of domestic law and the law of the relevant
convention — Free movement of workers)

(2002/C 109/04)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-277/99: Reference to the Court under Article 234
EC by the Verwaltungsgerichtshof (Austria) for a preliminary
ruling in the proceedings pending before that court between
Doris Kaske and Landesgeschäftsstelle des Arbeitsmarktservice
Wien, on the possible application of a convention relating
to unemployment insurance concluded between the Federal
Republic of Germany and the Republic of Austria on unem-
ployment benefit, in place of Articles 3, 6, 67 and 71 of
Regulation (EEC) No 1408/71 of the Council of 14 June 1971
on the application of social security schemes to employed
persons and their families moving within the Community (OJ,
English Special Edition 1971 (II), p. 416), by extending the
(Case C-227/89 [1991] ECR I-323,
decision in Rönfeldt

hereinafter ‘Rönfeldt’) to unemployment benefit and, secondly,
the interpretation of Articles 48 and 51 of the EC Treaty (now,
after amendment, Articles 39 EC and 42 EC), the Court (Sixth
Chamber), composed of: F. Macken, President of the Chamber,
N. Colneric, J.-P. Puissochet (Rapporteur), R. Schintgen and
V. Skouris, Judges; J. Mischo, Advocate General; R. Grass,
Registrar, has given a judgment on 5 February 2002, in which
it has ruled:

1.

2.

The principles laid down by the Court
in Rönfeldt (Case
C-277/89) permitting non-application of the provisions of
Regulation (EEC) No 1408/71 of the Council of 14 June
1971 on the application of social security schemes to employed
persons and their families moving within the Community, to
allow for continued application of a bilateral convention which
that regulation would otherwise have replaced to a worker who
is a national of a Member State also apply where the worker
exercised the right to freedom of movement before the regulation
entered into force and before the EC Treaty became applicable
in his Member State of origin.

If periods of insurance or employment that entitle a worker who
is a national of a Member State to the unemployment benefit
claimed by him began to run before the entry into force of
Regulation No 1408/71, his situation must be assessed in the
light of the provisions of the bilateral convention for the entire
period during which he was exercising his right to freedom of
movement, and taking into account all the periods of insurance
or employment completed by him regardless of whether those
periods preceded or succeeded the entry into force of the Treaty
and of Regulation No 1408/71 in his Member State of origin.
If, however, after having exhausted all his rights under the
convention, he exercises his right to freedom of movement anew,
and if he completes further periods of insurance or employment
entirely after the entry into force of Regulation No 1408/71,
his new situation is governed by that regulation.

3. National law may contain more favourable rules than Com-
munity law provided that they comply with the principles of
Community law. A rule in a Member State which, for the
purposes of the criteria for entitlement to unemployment benefit,
favours workers who spent 15 years in that Member State
before their last employment abroad is incompatible with
Article 48 of the Treaty.

(1) OJ C 281 of 2.10.1999.