CELEX: 61977CC0065
Language: en
Date: 1977-11-09
Title: Opinion of Mr Advocate General Reischl delivered on 9 November 1977. # Jean Razanatsimba. # Reference for a preliminary ruling: Cour d'appel de Douai - France. # Right of establishment of nationals to ACP States. # Case 65-77.

OPINION OF MR ADVOCATE-GENERAL REISCHL
      DELIVERED ON 9 NOVEMBER 1977 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      The exercise of the profession of advocate is governed in France by a Law of 31 December 1971 and the implementing provisions issued thereunder. The conditions laid down therein are inter alia the possession of French nationality, in so far as international agreements do not provide otherwise, the obtention of a Licence en Droit (degree in law) or a Doctorat en Droit (doctorate in law) and a Certificat d'Aptitude à la Profession d'Avocat (qualifying certificate for the profession of advocate) and finally admission to a Bar (barreau) which is always preceded by pupillage (stage). In principle there is a Bar, composed of all admitted advocates and pupils, at each Tribunal de Grande Instance (regional court competent to try major civil cases and less serious criminal cases). It is administered by a Conseil de l'Ordre elected by all admitted advocates. Its task is inter alia to decide applications for admission to pupillage and applications for admission to the Bar. An appeal may be brought before the Combined Chambers of the Cour d'Appel (Court of Appeal) against its decision.
      Mr Razanatsimba, a Madagascan national residing in France, who possesses both a Licence en Droit and the Certificat d'Aptitude à la Profession d'Avocat, applied on 9 February 1976 to the Conseil de l'Ordre des Avocats de Lille (Lille Bar Council) to be admitted to pupillage. In this connexion he relied, because he is not of French nationality, upon the Convention Judiciaire Franco-Malgache (Franco-Madagascan Judicial Convention) of 4 June 1973, Article 6 whereof provides that advocates of both Contracting States may provide services in connexion with a specific case even in the country in which they are not admitted to the Bar. In addition he invoked the Lomé Convention concluded between the European Community and its Member States of the one part and 46 African, Caribbean and Pacific States of the other part on 28 February 1975, which entered into force on 1 April 1976, Article 62 of which provides as follows:
      ‘As regards the arrangements that may be applied in matters of establishment and provision of services, the ACP States on the one hand and the Member States on the other shall treat nationals and companies or firms of Member States and nationals or companies and firms of the ACP States respectively on a non-discriminatory basis. However, if, for a given activity, an ACP State or a Member State is unable to provide such treatment, the Member States or the ACP States as the case may be, shall not be bound to accord such treatment for this activity to the nationals and companies or firms of the State concerned.’
      In Mr Razanatsimba's view the effect of this prohibition on discrimination is that he must be admitted to pupillage as if he were of French nationality.
      This argument, in particular the reference to the Lomé Convention which was also concluded by the Community by Council Regulation No 199/76 (OJ L 25, p. 1) in accordance with Article 238, prompted the Conseil de l'Ordre to stay the proceedings relating to the application and to ask the Court of Justice by order of 14 December 1976 for a preliminary ruling under Article 177 of the EEC Treaty on the interpretation of the abovementioned Article 62 of the Lomé Convention.
      As you know, this procedure was not carried out (Case 3/77). In fact the Procureur General appealed against the decision of the Conseil de l'Ordre before the Cour d'Appel, Douai, on the ground that the Conseil de l'Ordre is not empowered to ask for a preliminary ruling under Article 177 of the EEC Treaty because in the case in question it performs not a judicial but a purely administrative function. In addition he claimed that the Cour d'Appel should itself decide the application for admission to pupillage.
      The Cour d'Appel found that the Conseil de l'Ordre is not an ordinary court of law but an administrative authority in so far as it has to decide on admission to pupillage and that as such it is not empowered under Article 177 to refer to the Court of Justice requests for interpretation. The abovementioned order for reference was therefore annulled and Case 3/77 was accordingly removed from the Court Register by order of 15 June 1977. The Cour d'Appel further held that, under Article 562 (2) of the Code de Procedure Civil (Judicial Code), it has complete jurisdiction to make a decision on the substance of the case and may therefore itself decide the application for admission. The Cour d'Appel stated with regard to the reasons upon which that application was based that the Franco-Madagascan Convention could not lead to a derogation from Article 11 of the Law of 31 December 1971, according to which French nationality is a condition for admission to pupillage. The Lomé Convention to which the plaintiff also referred must be considered by the French courts as part of Community law. By judgment of 18 May 1977 the Cour d'Appel stayed the proceedings for its part because of uncertainty as to the interpretation of the Convention and referred the following questions, which correspond to those contained in the order for reference submitted by the Council de l'Ordre, to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:
      
               (a)
            
            
               Does Article 62 of the Lomé Convention of 28 February 1975 give a national of an ACP State, and in particular a person of Madagascan nationality, the right to establish himself in the territory of a Member State, and in particular in French territory, without any condition as to nationality?
            
         
               (b)
            
            
               Does the reservation contained in the abovementioned Article 62 allow a Member State to require the nationality of such State or that of another Member State for the pursuit of a specific activity, in the present case the profession of advocate?
            
         It is in my opinion necessary to state the following with regard to these questions, on which Mr Razanatsimba, the French Government and the Commission have submitted observations:
      
               1.
            
            
               There is no doubt that the Court of Justice has jurisdiction to deal with the questions which have been raised. The Commission has shown this by reference to the relevant case-law on the interpretation of specific conventions (Joined Cases 21 to 24/72, International Fruit Company v Produktschap voor Groenten en Fruit, judgment of 12 December 1972, [1972] ECR 1219; Case 9/73, Carl Schlüter v Hauptzollamt Lörrach, judgment of 24 October 1973, [1973] ECR 1135; Case 181/73, R. & V. Haegeman v Belgian State, judgment of 30 April 1974, [1974] ECR 449; Case 87/75, Conceria Daniele Bresciani v Amministrazione Italiana delle Finanze, judgment of 5 February 1976, [1976] ECR 129).
               The only condition is that the Community must be bound by the agreement in question and that it must also be bound by the provision whose interpretation is requested. This is so in the present case. As far as the Lomé Convention is concerned, the very fact that it was concluded under Article 238 of the EEC Treaty makes it binding on the Community in principle. In addition, there is no reason to doubt that Article 62, the meaning of which is concerned in this case, is no exception thereto.
            
         
               2.
            
            
               In discussing the questions which have been referred to the Court, and in this respect too it is necessary to agree with the Commission, the question whether Article 62 of the Lomé Convention is directly applicable within the meaning of established case-law must first be examined, in other words the question whether individuals, in particular nationals of the ACP States, may derive rights from it which the national courts must protect. The questions themselves refer to the problem as to whether Article 62 of the Lomé Convention creates a right for a national of an ACP State. In addition it is impossible to see that the interpretation of Article 62, with regard for example to the meaning of national provisions, would be of importance for the court making the order for reference even if it were certain that that article did not create rights for individuals.
               With regard to the first problem, it is impossible to reach a reply in the negative merely by reference to the fact that in the Lomé Convention there is obviously no balance between the obligations imposed on the parties but that on the contrary the ACP States are in some cases given greater advantages than the Member States, and that in some cases strictly unilateral concessions are made by the latter. This has already been settled in the case-law of the Court, as the Commission has shown.
               On the other hand it is not easy to justify an answer in the affirmative on the basis of the fact that the Convention was concluded on behalf of the Community by means of a regulation (Council Regulation No 199/76 of 30. 1. 1976). This is because only the nature of the obligation at issue in the actual case, in other words the contents and arrangement of Article 62, can be the decisive factor, and not that circumstance. The conditions necessary for it to be accepted that a duty imposed by the Treaty is directly applicable have likewise long been established in case-law. To summarize, it is possible to say that clear and complete provisions must exist, containing absolute duties and in particular leaving no scope for the exercise of a discretionary power.
               If these criteria are applied in the present case, it is difficult to deny that they are fulfilled in so far as the first part of Article 62 is concerned, which speaks of non-discriminatory treatment for nationals and companies or firms of Member States and of the ACP States in the field of arrangements relating to establishment. Nevertheless this obligation must be considered in connexion with the following sentence which provides that:
               ‘However, if, for a given activity, an ACP State or a Member State is unable to provide such treatment, the Member States or the ACP States, as the case may be, shall not be bound to accord such treatment for this activity to the nationals and companies or firms of the State concerned.’
               What is involved here is a reservation which obviously qualifies the requirement of equal treatment, with the result that, if it is not complied with, the nationals of the State concerned in the field concerned do not benefit from the requirement of equal treatment. In addition the reservation, and with it the conditions for the application of the prohibition on discrimination, are completely undetermined. Article 62 contains no guidance as to when it may be acknowledged that a State is unable to provide such treatment. In any case there is nothing to indicate that the reservation may, as Mr Razanatsimba considers, only operate if the application of the prohibition on discrimination is absolutely impossible for economic reasons. If such had been the intention, it would have been possible to insert appropriate words into Article 62 forthwith. Nor however, as the French Government has correctly stressed, could they be regarded as sufficiently determinate, either if it were necessary to posit economic impossibility or if it were assumed that there must be a legal impossibility, which is in addition difficult to imagine in the case of sovereign States. It is therefore necessary to assume that Article 62 is intended to continue the system laid down in the earlier Yaoundé Conventions (cf 1963 and 1969) in so far as no conditions were mentioned in those Conventions for derogations from the principle of equal treatment. Thus the only conclusion which remains is that the States which were parties thereto were granted a wide discretionary power by the reservation, a discretionary power which involves no duty of justification although, as the French Government has admitted, it cannot go so far as absolute arbitrariness. If therefore the States may decide in each individual case whether they wish to derogate from the requirement of equal treatment with regard to a given activity and in respect of a particular State, and if the application of Article 64 of the Lomé Convention might come into consideration in this connexion, according to which the Council of Ministers may examine any problems raised inter alia by the application of Article 62 and may formulate recommendations, it is in fact impossible to consider the direct application of Article 62 for lack of certainty as regards the substance of the duty.
            
         
               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.
                     
                  
         
               4.
            
            
               I therefore conclude that the questions referred to the Court by the Cour d'Appel, Douai, should be answered as follows:
               
                        (a)
                     
                     
                        Article 62 of the Lomé Convention of 28 February 1975 does not create for nationals of the ACP States any rights which they could invoke before the courts of the Member States.
                     
                  
                        (b)
                     
                     
                        Article 62 of that Convention contains neither the requirement of national treatment nor the grant of most-favoured third-nation treatment but merely a simple prohibition on discrimination which is in addition subject to an extensive reservation involving the exercise of discretionary powers by the States which are parties thereto. It is therefore impossible to derive from that provision the right for a national of an ACP State to admission to pupillage regardless of his nationality if, according to the law of the Member State in question, derogations from that requirement are only possible under special conventions.
                     
                  
         (
            1
         )	Translated from the German.