CELEX: C2002/109/03
Language: en
Date: 2002-05-04 00:00:00
Title: 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)

C 109/2                 EN                      Official Journal of the European Communities                                            4.5.2002
(Italy) for a preliminary ruling in the criminal proceedings               U. Leanza, assisted by F. Quadri): Application for a declaration
before that court against Manuele Arduino, third parties: Diego            that:
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. Rodrı́guez
Iglesias, President, P. Jann, F. Macken, N. Colneric and S. von            —     by maintaining, contrary to Article 59 of the EC Treaty
Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward,                        (now, after amendment, Article 49 EC), the general
A. La Pergola, J.-P. Puissochet, M. Wathelet (Rapporteur),                       prohibition whereby lawyers established in other Member
R. Schintgen, V. Skouris and J.N. Cunha Rodrigues, Judges;                       States and practising in Italy in the exercise of their
P. Léger, Advocate General; H.A. Rühl, Principal Administrator,                  freedom to provide services cannot have in that State the
Registrar, has given a judgment on 19 February 2002, in                          infrastructure needed to provide their services,
which it has ruled:
Articles 5 and 85 of the EC Treaty (now Articles 10 EC and 81 EC)          —     by making enrolment at the Italian Bar conditional upon
do not preclude a Member State from adopting a law or regulation                 the possession of Italian nationality, the possession of
which approves, on the basis of a draft produced by a professional               qualifications acquired only in Italy and maintenance of a
body of members of the Bar, a tariff fixing minimum and maximum                  residence in an Italian judicial district, contrary to
fees for members of the profession, where that State measure forms               Article 52 of the EC Treaty (now, after amendment,
part of a procedure such as that laid down in Royal Decree-Law                   Article 43 EC),
No 1578 of 27 November 1933, as amended.
                                                                           —     by applying in a discriminatory manner against lawyers
(1) OJ C 100 of 10.4.1999.                                                       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
                 JUDGMENT OF THE COURT                                     —     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,
                          (Fifth Chamber)                                        the Italian Republic has failed to fulfil its obligations
                                                                                 under Articles 52 and 59 of the Treaty and Directive
                                                                                 89/48,
                           7 March 2002
in Case C-145/99: Commission of the European Communi-                      the Court (Fifth Chamber), C. Stix-Hackl, Advocate General;
                     ties v Italian Republic (1)                           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)
                                                                                 —     by maintaining, contrary to Article 59 of the EC Treaty
                                                                                       (now, after amendment, Article 49 EC), the general
                    (Language of the case: Italian)                                    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
(Provisional translation; the definitive translation will be published                 infrastructure needed to provide their services,
                   in the European Court Reports)
                                                                                 —     by requiring members of the Bar to reside in the judicial
                                                                                       district of the court to which the Bar at which they are
In Case C-145/99, Commission of the European Communities                               enrolled is attached, contrary to Article 52 of the EC
(Agents: E. Traversa and B. Mongin) v Italian Republic (Agent:                         Treaty (now, after amendment, Article 43 EC), and
 ---pagebreak--- 4.5.2002                 EN                     Official Journal of the European Communities                                             C 109/3
      —     by incompletely transposing Council Directive                  hereinafter ‘Rönfeldt’) to unemployment benefit and, secondly,
            89/48/EEC of 21 December 1988 on a general system              the interpretation of Articles 48 and 51 of the EC Treaty (now,
            for the recognition of higher-education diplomas awarded       after amendment, Articles 39 EC and 42 EC), the Court (Sixth
            on completion of professional education and training of        Chamber), composed of: F. Macken, President of the Chamber,
            at least three years’ duration, inasmuch as no rules have      N. Colneric, J.-P. Puissochet (Rapporteur), R. Schintgen and
            been laid down to regulate the conduct of the aptitude test    V. Skouris, Judges; J. Mischo, Advocate General; R. Grass,
            for lawyers from other Member States,                          Registrar, has given a judgment on 5 February 2002, in which
                                                                           it has ruled:
      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;
                                                                           1.    The principles laid down by the Court in Rönfeldt (Case
3.    Orders the Italian Republic and the Commission of the                      C-277/89) permitting non-application of the provisions of
      European Communities to bear their own costs.                              Regulation (EEC) No 1408/71 of the Council of 14 June
                                                                                 1971 on the application of social security schemes to employed
(1) OJ C 188 of 3.7.1999.                                                        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.
                  JUDGMENT OF THE COURT
                          (Sixth Chamber)
                                                                           2.    If periods of insurance or employment that entitle a worker who
                                                                                 is a national of a Member State to the unemployment benefit
                          5 February 2002                                        claimed by him began to run before the entry into force of
                                                                                 Regulation No 1408/71, his situation must be assessed in the
in Case C-277/99 (Reference for a preliminary ruling from                        light of the provisions of the bilateral convention for the entire
the Verwaltungsgerichtshof): Doris Kaske v Landesge-                             period during which he was exercising his right to freedom of
        schäftsstelle des Arbeitsmarktservice Wien (1)                           movement, and taking into account all the periods of insurance
                                                                                 or employment completed by him regardless of whether those
(Social security for migrant workers — Unemployment                              periods preceded or succeeded the entry into force of the Treaty
insurance — Replacing social security conventions concluded                      and of Regulation No 1408/71 in his Member State of origin.
between Member States with Regulation (EEC) No 1408/71                           If, however, after having exhausted all his rights under the
— Preservation of advantages enjoyed previously as a result                      convention, he exercises his right to freedom of movement anew,
of a combination of domestic law and the law of the relevant                     and if he completes further periods of insurance or employment
           convention — Free movement of workers)                                entirely after the entry into force of Regulation No 1408/71,
                                                                                 his new situation is governed by that regulation.
                           (2002/C 109/04)
                    (Language of the case: German)                         3.    National law may contain more favourable rules than Com-
                                                                                 munity law provided that they comply with the principles of
(Provisional translation; the definitive translation will be published           Community law. A rule in a Member State which, for the
                    in the European Court Reports)                               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.
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                    (1) OJ C 281 of 2.10.1999.
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
decision in Rönfeldt (Case C-227/89 [1991] ECR I-323,