CELEX: 62010CC0101
Language: en
Date: 2011-03-17
Title: Opinion of Mr Advocate General Mengozzi delivered on 17 March 2011. # Gentcho Pavlov and Gregor Famira v Ausschuss der Rechtsanwaltskammer Wien. # Reference for a preliminary ruling: Oberste Berufungs- und Disziplinarkommission - Austria. # External relations - Association agreements - National legislation excluding, before the accession of the Republic of Bulgaria to the European Union, Bulgarian nationals from inclusion on the list of trainee lawyers - Compatibility of that legislation with the prohibition of all discrimination based on nationality, as regards working conditions, in the EC-Bulgaria Association Agreement. # Case C-101/10.

OPINION OF ADVOCATE GENERAL
      MENGOZZI
      delivered on 17 March 2011 (1)
      
      Case C‑101/10
      Gentcho Pavlov
      Gregor Famira
      v
      Ausschuss der Rechtsanwaltskammer Wien
      (Reference for a preliminary ruling from the Oberste Berufungs- und Disziplinarkommission (Austria))
      (External relations – Association agreements – Direct effect – National legislation excluding, before the accession of the Republic of Bulgaria to the European Union, Bulgarian nationals
         from inclusion on the list of trainee lawyers – Prohibition of all discrimination based on nationality – Concept of working conditions – Compatibility)
      
      1.        The main question raised by this reference for a preliminary ruling is whether a Bulgarian national whose application for
         inclusion on the list of trainee lawyers in Austria was refused, before the accession of the Republic of Bulgaria to the European
         Union, has suffered discrimination on the ground of nationality prohibited under the Europe Agreement establishing an association
         between the European Communities and their Member States, on the one hand, and the Republic of Bulgaria, on the other hand,
         signed on 1 March 1993 (‘the Association Agreement with the Republic of Bulgaria’). (2)
      
      I –  Legal background 
      A –    The Association Agreement with the Republic of Bulgaria
      2.        Article 7(1) of the Association Agreement with the Republic of Bulgaria provides that ‘[t]he association includes a transitional
         period of a maximum duration of 10 years divided into two successive stages, each in principle lasting five years. The first
         stage shall begin when the Agreement enters into force’.
      
      3.        The first indent of Article 38(1) of the Association Agreement with the Republic of Bulgaria provides as follows:
      
      ‘Subject to the conditions and modalities applicable in each Member State:
      –        the treatment accorded to workers of Bulgarian nationality legally employed in the territory of a Member State shall be free
         from any discrimination based on nationality, as regards working conditions, remuneration or dismissal, as compared to its
         own nationals’.
      
      4.        Article 42(1) of the Association Agreement with the Republic of Bulgaria provides as follows:
      
      ‘Taking into account the labour market situation in the Member State, subject to its legislation and to the respect of rules
         in force in that Member State in the area of mobility of workers: 
      
      –        the existing facilities for access to employment for Bulgarian workers accorded by Member States under bilateral Agreements
         ought to be preserved and if possible improved,
      
      –        the other Member States shall examine the possibility of concluding similar Agreements.’
      5.        Article 45(1) of the Association Agreement with the Republic of Bulgaria, in the chapter entitled ‘Establishment’, provides
         that ‘[e]ach Member State shall grant, from entry into force of the Agreement, for the establishment of Bulgarian companies
         and nationals and for the operation of Bulgarian companies and nationals established in its territory, a treatment no less
         favourable than that accorded to its own companies and nationals, save for matters referred to in Annex XVa.’
      
      6.        Article 45(5)(a)(i) of the Association Agreement with the Republic of Bulgaria defines establishment ‘as regards nationals,
         [as] the right to take up and pursue economic activities as self-employed persons and to set up and manage undertakings, in
         particular companies, which they effectively control. Self-employment and business undertakings by nationals shall not extend
         to seeking or taking employment in the labour market or confer a right of access to the labour market of the other Party.
         The provisions of this chapter do not apply to those who are not exclusively self‑employed.’
      
      7.        Article 45(5)(c) of the Association Agreement with the Republic of Bulgaria defines economic activities as ‘activities of
         an industrial character, activities of a commercial character, activities of craftsmen and activities of the professions’.
      
      8.        Article 47 of the Association Agreement with the Republic of Bulgaria provides that ‘[i]n order to make it easier for Community
         nationals and Bulgarian nationals to take up and pursue regulated professional activities in Bulgaria and the Community respectively,
         the Association Council shall examine which steps are necessary to be taken to provide for the mutual recognition of qualifications.
         It may take all necessary measures to that end.’
      
      9.        Article 59(1) of the Association Agreement with the Republic of Bulgaria states that ‘[f]or the purpose of Title IV, nothing
         in the Agreement shall prevent the Parties from applying their laws and regulations regarding entry and stay, work, labour
         conditions and establishment of natural persons and supply of services, provided that, in so doing, they do not apply them
         in a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific provision of the Agreement.
         ...’
      
      B –    National legal framework
      10.      The provisions governing the profession of lawyer and access to this profession in Austria are contained in the Law on the
         examination for lawyers (Rechtsanwaltsprüfungsgesetz, ‘the RAPG’) (3) and in the Austrian Code of Lawyers (Österreichische Rechtsanwaltsordnung, ‘the RAO’). (4)
      
      1.      The RAPG
      11.      Under Paragraph 1 of the RAPG, ‘[t]he examination for lawyers shall demonstrate the candidate’s capacities and knowledge required
         for practising as a lawyer, in particular his skill in introducing and dealing with the public and private matters entrusted
         to a lawyer and his capability to draft legal documents and legal opinions and to make orderly written and oral submissions
         on points of law and fact’. 
      
      12.      Under Paragraph 2(1) of the RAPG, ‘[t]he examination for lawyers may be taken after obtaining a Doktorat der Rechte or, for
         graduates of a Diplomstudium within the meaning of the Law of 2 March 1978 … on the study of law, a Magisterium der Rechtswissenschaften
         and completing three years’ practical training, including at least nine months with a court and at least two years with a
         lawyer ...’.
      
      2.      The RAO
      13.      Under Paragraph 1(1) of the RAO, ‘[t]o practise as a lawyer … no official appointment is required, but merely proof of satisfaction
         of the following requirements and inclusion on the list of lawyers’.
      
      14.      Under Paragraph 1(2) of the RAO, the conditions to be fulfilled are: 
      
      ‘(a)  [Austrian nationality];
      …
      (d)       practical experience of the statutory kind and duration;
      (e)       passing the examination for lawyers;
      …’
      15.      Paragraph 2 of the RAO reads as follows:
      
      ‘1.      The practical training required for practising as a lawyer shall consist in legal activity with a court or prosecutor’s office
         and with a lawyer. … Practical training with a lawyer may be taken into account only if it is exercised as the principal professional
         activity and is not affected by another professional activity.
      
      2.       The practical training in accordance with subparagraph 1 shall last for five years. At least nine months of it shall be spent
         with a court or prosecutor’s office and at least three years with a lawyer, in Austria.
      
      …’
      16.      Paragraph 1(3) of the RAO states that ‘[t]he nationality of a Member State of the European Union or of another State party
         to the Agreement on the European Economic Area or of the Swiss Confederation shall be equated to Austrian nationality.’
      
      17.      Paragraph 15 of the RAO provides as follows:
      
      1.      If representation by a lawyer is prescribed by law, the lawyer may also have himself represented, under his responsibility,
         before all courts and administrative authorities by a trainee lawyer working with him and entitled to substitute for him;
         the signing by a trainee lawyer of documents submitted to courts and administrative authorities is not permitted, however.
      
      2.      A trainee lawyer who has passed the examination for lawyers is entitled to substitute for a lawyer ... .
      3.      If representation by a lawyer is not prescribed by law, the lawyer may also have himself represented, under his responsibility,
         before all courts and administrative authorities by another trainee lawyer working with him; the signing by a trainee lawyer
         of documents submitted to courts and administrative authorities is not permitted, however.
      
      4.      The Committee of the Chamber of Lawyers must provide trainee lawyers working with a lawyer with certificates attesting to
         the substitution entitlement in accordance with subparagraph 2 ... or the representation entitlement in accordance with subparagraph
         3 ...’.
      
      18.      Paragraph 30 of the RAO governing the procedure for inclusion on the list of trainee lawyers states as follows:
      
      ‘1.       To obtain inclusion on the list of trainee lawyers, on starting training with a lawyer, notice must be given to the Committee,
         providing proof of [Austrian nationality] and of satisfaction of the requirements prescribed for starting that training, and
         the training period is reckoned only from the date of receipt of that notice.
      
      …
      4.       The persons concerned have the right to appeal against a refusal of inclusion on the list of trainee lawyers, against deletion
         from that list and against a refusal to certify training with a lawyer to the Higher Appeal and Disciplinary Board. …
      
      5.       The nationality of a Member State of the European Union or of another State party to the Agreement on the European Economic
         Area or of the Swiss Confederation shall be equated to Austrian nationality’.
      
      II –  The dispute in the main proceedings and questions referred for a preliminary ruling
      19.      Mr Gentcho Pavlov is a Bulgarian national who completed his legal studies in Vienna, Austria, according to the national court,
         in 2002. (5) Since 2004, he has been employed in the law office of Mr Famira, a lawyer in Vienna. Mr Pavlov holds an establishment permit
         within the meaning of Austrian law and a work permit in Austria.
      
      20.      On 2 January 2004 Mr Famira and Mr Pavlov requested for Mr Pavlov inclusion on the list of trainee lawyers. At the same time
         they sought the grant of a certificate of entitlement to appear in court under Paragraph 15(3) of the RAO.
      
      21.      By order of 6 April 2004 the Ausschuss der Rechtsanwaltskammer Wien (Committee of the Vienna Chamber of Lawyers) turned down
         the application on the ground that Mr Pavlov did not satisfy the nationality requirement in Paragraph 30 of the RAO. Since
         at the time of making the application Mr Pavlov was neither a national of a Member State of the Union nor a national of a
         State of the European Economic Area or of the Swiss Confederation, his Bulgarian citizenship did not, according to the Ausschuss
         Rechtsanwaltskammer, meet the requirements of Paragraph 30 of the RAO. The objection to this order was dismissed on 15 June
         2004 (6) by the Ausschuss Rechtsanwaltskammer sitting in plenary session.
      
      22.      An appeal was lodged against this second order before the Oberste Berufungs- und Disziplinarkommission (Higher Appeal and
         Disciplinary Board, ‘the OBDK’). On 1 August 2006, that appeal was rejected. The OBDK considered that the legal profession
         is a regulated profession and that the regulation affects trainee lawyers also. It ruled that, under the terms of the Association
         Agreement with the Republic of Bulgaria, discrimination is prohibited only as regards working conditions, but that the contracting
         States have the possibility of putting in place national limitations on access to regulated professions.
      
      23.      The applicants having lodged an appeal before it, the Verfassungsgerichtshof (Constitutional Court) on 8 October 2007 set
         aside that decision, holding that by not referring the case to the Court of Justice for a preliminary ruling on the interpretation
         of the relevant provisions of the Association Agreement with the Republic of Bulgaria, the OBDK had violated the right of
         the complainants to proceedings before the proper court guaranteed by the national constitution. The case was therefore referred
         back to the OBDK.
      
      24.      On 17 April 2008, the OBDK partially upheld the appeal against the order of 15 June 2004, setting it aside together with the
         order of 6 April 2004 in light of the alteration of the legal situation arising from the accession of the Republic of Bulgaria
         to the European Union. Owing to this supervening new element, the OBDK found that the situation was sufficiently clear to
         enable it to decide without making a reference for a preliminary ruling to the Court of Justice. In doing so, it referred
         the case back to the Ausschuss Rechtsanwaltskammer for it to give a decision after supplementary proceedings. The decision
         by the OBDK of 17 April 2008 was also the subject-matter of an appeal before the Verfassungsgerichtshof.
      
      25.      By decision of 2 July 2009, the Verfassungsgerichtshof set aside the new decision of the OBDK of 17 April 2008. It criticises
         the OBDK, in substance, for not resolving the issue relating to the years 2004 to 2006 by failing to make a reference for
         a preliminary ruling to the Court of Justice on an issue which, in spite of the accession of the Republic of Bulgaria to the
         European Union from 1 January 2007, retained full relevance for Mr Pavlov inasmuch as, first, he could only pass the examination
         for lawyers after practical training of at least two years with a lawyer (Paragraph 2(1) of the RAPG), and secondly, to be
         included on the list of lawyers, he had to show practical training of at least three years with a lawyer (Paragraph 2(2) of
         the RAO).
      
      26.      Faced, therefore, with a problem of interpretation of European Union law, the Oberste Berufungs- und Disziplinarkommission
         decided to stay the proceedings and, by order for reference lodged on 23 February 2010, to refer the following two questions
         to the Court of Justice for a preliminary ruling under Article 267 TFEU:
      
      ‘(1)      Was Article 38(1) of the [Association Agreement] directly applicable in the period from 2 January 2004 to 31 December 2006
         in a procedure for including a Bulgarian national on the list of trainee lawyers?
      
      (2)      [In the event of an affirmative reply to the first question, d]id Article 38(1) of the [Association Agreement] preclude the
         application of Paragraph 30(1) and (5) of the [RAO], under which, inter alia, proof of Austrian citizenship or a nationality
         regarded as equivalent is a condition of inclusion, to an application by a Bulgarian national employed by an Austrian lawyer,
         made on 2 January 2004, for inclusion on the list of Austrian trainee lawyers and for the issue of a certificate of entitlement
         in accordance with Paragraph 15(3) of the [RAO] and the rejection of the application solely on the ground of nationality,
         despite the other conditions being satisfied and the applicant having an establishment and employment permit for Austria?’
         
      
      III –  Proceedings before the Court
      27.      The applicants in the main proceedings, the Austrian Government and the European Commission submitted written observations
         and also presented oral argument at the hearing on 13 January 2011.
      
      IV –  Legal analysis
      A –    Preliminary observation as to whether the OBDK is a court or tribunal
      28.      As a preliminary matter it has to be ascertained whether the OBDK is a court or tribunal within the meaning of Article 267
         TFEU and thus capable of referring questions to the Court for a preliminary ruling.
      
      29.      The Court has recently had occasion to rule on this issue in the Koller (7) judgment in which it held that ‘the OBDK, whose jurisdiction, as all parties agree, is compulsory, exhibits all the features
         necessary in order to be classified as a court or tribunal within the meaning of Article [267 TFEU]’. (8)
      
      30.      In these circumstances, it is therefore necessary to continue the analysis, the Court being competent to respond to the referring
         body.
      
      B –    The first question 
      31.      By its first question, the national court seeks to know in substance whether Article 38(1), first indent, of the Association
         Agreement with the Republic of Bulgaria is a provision of Union law with direct effect and if it should be regarded as having
         such effect during the period from 2 January 2004 to 31 December 2006, within the framework of the procedure for inclusion
         of a Bulgarian national on the list of trainee lawyers.
      
      32.      It is settled case-law that a provision in an agreement concluded by the Community with a non-member country must be regarded
         as being directly  applicable when, having regard to its wording and to the purpose and nature of the agreement itself, the
         provision contains a clear and precise obligation which is not subject, in regard to its implementation or its effects, to
         the adoption of any subsequent measure. (9) It is therefore necessary to review Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria
         on the basis of these three criteria. 
      
      33.      As regards the terms of Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria, and as the
         applicants in the main proceedings and the Austrian Government observed in their written observations, the Court has already
         ruled on whether Article 37(1), first indent, of the Association Agreement between the European Communities and the Republic
         of Poland, which has a wording almost identical (10) to that of Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria, has direct effect. (11) The Court in that case considered that the said first indent of Article 37(1) ‘lays down, in clear, precise and unconditional
         terms, a prohibition preventing each Member State from discriminating in relation to its own nationals, on grounds of their
         nationality, against Polish nationals covered by that provision as far as their conditions of employment, remuneration and
         dismissal are concerned. ... This rule of equal treatment lays down a precise obligation to produce a specific result and,
         by its nature, can be relied on by an individual to apply to a national court to set aside the discriminatory provisions of
         a Member State’s legislation, without any further implementing measures being required for that purpose.’ (12) Nor, moreover, can use of the expression ‘[s]ubject to the conditions and modalities applicable in each Member State’ call
         in question that finding. (13)
      
      34.      As to the nature and subject-matter of the Association Agreement with the Republic of Bulgaria, the Court has already had
         occasion to state that ‘[a]ccording to the 17th recital in its preamble and Article 1(2), the objective of the Association
         Agreement is to establish an association designed to promote the expansion of trade and harmonious economic relations between
         the Contracting Parties, in order to foster dynamic economic development and prosperity in the Republic of Bulgaria, with
         a view to facilitating its accession to the Community. Moreover, the fact that the Association Agreement is intended essentially
         to promote the economic development of Bulgaria and therefore involves an imbalance in the obligations assumed by the Community
         towards the non-member country concerned is not such as to prevent recognition by the Community of the direct effect of certain
         provisions of that Agreement’. (14)
      
      35.      Nor, moreover, is Article 59(1) of the Association Agreement with the Republic of Bulgaria apt to preclude that conclusion,
         as the Court has held that that provision ‘provides only that the authorities of the Member States remain competent to apply,
         while respecting the limits laid down by the Association Agreement, their national laws’. (15) Consequently, Article 59(1) does not concern the Member States’ implementation of the provisions of the Association Agreement
         with the Republic of Bulgaria governing working conditions and is not intended to make implementation or the effects of the
         obligation of equal treatment laid down in Article 38(1), first indent, subject to the adoption of further national measures. (16)
      
      36.      All the conditions imposed by the Court’s case-law for a provision in an international agreement concluded by the Community
         to have direct effect are satisfied in regard to Article 38(1), first indent, of the Association Agreement with the Republic
         of Bulgaria.
      
      37.      I therefore propose that the Court should reply to the first question that Article 38(1), first indent, of the Association
         Agreement with the Republic of Bulgaria satisfies the conditions required of a provision of the law of the European Union
         for it to have direct effect and could therefore be directly applicable in the period from 2 January 2004 to 31 December 2006.
      
      C –    Second question
      38.      Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria provides for a prohibition of discrimination
         on the ground of nationality in the case of Bulgarian nationals having the status of worker, legally employed in the territory
         of a Member State, as regards ‘working conditions, remuneration or dismissal’.
      
      39.      The Court has already been called on to rule on the compatibility of a national rule with a provision having a wording similar
         to that of Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria. In such a case, its approach
         has been to determine, in the first place, whether the rule referred to indeed referred to working conditions and, secondly,
         whether the rule indeed constituted discrimination prohibited by the Association Agreement concerned. In this connection,
         the Court considered it necessary to adopt a three-stage procedure: first, it had to determine whether the Association Agreement
         prohibited discrimination; then, it had to examine the scope of this prohibition on discrimination, and particularly whether
         this scope might be comparable to that conferred on a similar provision contained in the EC Treaty; finally, if the two previous
         questions had received an affirmative reply, it remained to verify whether the discrimination could be objectively justified. (17)
      
      40.      For once, I propose to start the analysis by considering the discriminatory nature of the refusal presented to the applicant
         in the main proceedings, before establishing whether inclusion on the list of trainee lawyers falls within the concept of
         ‘working conditions’ within the meaning of Article 38(1), first indent, of the Association Agreement with the Republic of
         Bulgaria.
      
      1.      Discrimination based on nationality
      41.      In this case, it is not difficult to see that Article 38 of the Association Agreement with the Republic of Bulgaria obliges
         the contracting parties not to discriminate against Bulgarian workers because of their nationality. As to whether Article
         38(1), first indent, of that Association Agreement can be interpreted as broadly as the Court’s interpretation in the context
         of its case-law on Article 45(2) TFEU, I note that the Court does not authorise such an attitude in a systematic and comprehensive
         way, but directs that regard be had to the objective pursued by each of the provisions concerned in the context particular
         to it. (18) Thus, the fact that the Court ruled in Kondova that the interpretation given to Article 43 EC in the case-law could not be extended to the provisions of the Association
         Agreement with the Republic of Bulgaria on freedom of establishment (19) does not prejudge the outcome of the analysis of the provisions relating to the free movement of workers contained in the
         same agreement. 
      
      42.      The Court has never been called on directly to focus on the interpretation of these provisions. Nevertheless, the Pokrzeptowicz-Meyer judgment (20) may be useful to our analysis. In this judgment, the Court had to determine the scope of the prohibition of discrimination
         on the basis of nationality as regards working conditions under the Association Agreement with the Republic of Poland. It
         is to be noted that the prohibition on discrimination is almost identical to that provided for in Article 38(1), first indent,
         of the Association Agreement with the Republic of Bulgaria, (21) and that, according to the findings of the Court, it was analogous with the wording of Article 39(2) of the Treaty. (22)
      
      43.      The Court then stated that it followed from the comparison of the objectives and the context of the Association Agreement
         with the Republic of Poland, on the one hand, with those of the EC Treaty, on the other, that there was no ground for giving
         the provision in the Association Agreement concerned a meaning different from that found by the Court with respect to the
         equivalent provision of the Treaty.
      
      44.      This reasoning is transposable to Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria,
         its objectives being comparable to those pursued by the Association Agreement between the Community and the Republic of Poland
         before its accession. (23) Certainly, as the Court has had the opportunity to say, a provision such as the aforementioned Article 38 does not set out
         a principle of free movement of Bulgarian workers within the Union, (24) but it does introduce in their favour, from the moment when they are lawfully employed in the territory of a Member State,
         a right to equal treatment in regard to working conditions of the same scope as that conferred in similar terms by the Treaty
         on nationals of the Union. (25)
      
      45.      Moreover, neither the written observations submitted by the parties nor the discussions at the hearing have brought to light
         any objective reason such as to justify the difference in treatment between Austrian nationals and Bulgarian nationals as
         regards access to the list of trainee lawyers.
      
      46.      The interim conclusion to be drawn from the foregoing is the following: this is a case of discrimination which does not seem
         to be justified. None the less, the Gordian knot is not severed because decidedly whether Article 38(1), first indent, of
         the Association Agreement with the Republic of Bulgaria covers a situation such as that at issue in the main proceedings has
         not yet been established.
      
      2.      The concept of ‘working conditions’
      47.      It is undisputed that Mr Pavlov holds an ‘establishment permit’ under Austrian law (26) as well as a work permit in Austria. In addition, Mr Pavlov has since 2004 been employed by Mr Famira. Mr Pavlov is therefore
         a worker belonging to the regular employment market who is able to rely, in principle, as an employee, on Article 38(1), first
         indent, of the Association Agreement with the Republic of Bulgaria.
      
      48.      It also emerges from the file that the only reason why inclusion on the list of trainee lawyers has been refused to Mr Pavlov
         is the fact that for that inclusion the Austrian legislation requires Austrian nationality or a nationality assimilated thereto,
         which he does not have.
      
      49.      Therefore, to rule on the compatibility of the application, in the present case, of that legislation with Article 38 of the
         Association Agreement with the Republic of Bulgaria, it must be analysed whether it concerns a working condition.
      
      50.      In this connection, it could be considered that, given the fact that Mr Pavlov was hired by Mr Famira as a trainee lawyer,
         it is one of the working conditions of a trainee lawyer to be included on the list of trainee lawyers, for a number of reasons:
         first, inclusion on the list of trainee lawyers is the start of the period to be taken into account for the calculation of
         the duration of the training and as such is in a sense a precondition for being allowed to sit the examination for lawyers
         and thus to obtain the title of lawyer. (27) Secondly, only a trainee lawyer on the list may seek the power of representation (‘kleine Legitimationsurkunde’) which will
         enable him to represent the lawyer for whom he works before national courts and administrations. (28) Such an interpretation might, moreover, seem to be confirmed by the fact that the Austrian employment authorities permitted
         Mr Famira to take Mr Pavlov on as a trainee lawyer. Consequently, the refusal to enter a person in list of trainee lawyers
         could be understood as a limitation of the activities that the person may exercise in the context of his ‘employment’, thus
         having a direct impact on his working conditions, within the meaning of the Court’s case-law in the matter, of which the Deutscher Handballbund judgment, delivered in response to a reference for a preliminary ruling from a German court, is a significant example.
      
      51.      In this Deutscher Handballbund judgment, the Court had to rule on the compatibility with Article 38 of the Association Agreement with the Slovak Republic (29) of a national rule emanating from the German handball federation which provided for separate licenses to be issued to the
         nationals of non-Member States, with the result that only a limited number of players holding this particular type of license
         could be fielded during official competitions. In the main proceedings in that case, the complainant, of Slovak nationality,
         who was lawfully employed by a German club, had brought judicial proceedings against the refusal of his request for a licence
         not accompanied by the mention specific to nationals of non-Member States. 
      
      52.      The Court, after confirming the direct effect of Article 38 of the Association Agreement with the Slovak Republic, stated
         that the interpretation given to Article 48(2) of the EC Treaty should be extended to the abovementioned Article 38. (30) It concluded that the sports rule in question concerned working conditions ‘inasmuch as it directly affects participation
         in league and cup matches of a Slovak professional player who is already lawfully employed under the national provisions of
         the host Member State’. (31)
      
      53.      Therefore, one might think that the refusal to include Mr Pavlov on the list of trainee advocates can similarly be interpreted
         as having a direct impact on his participation in activities that are specific to this ‘employment’.
      
      54.      But, in my opinion, such reliance on this case-law is not possible because it presupposes that the ‘employment’ of Mr Pavlov,
         equivalent to any other salaried employment, is that of a trainee lawyer.
      
      55.      Certainly, Mr Pavlov was hired by Mr Famira as a trainee lawyer. However, the description of trainee lawyer in the contract
         of employment cannot suffice, in the present case, to bind the national authorities. As was demonstrated at the hearing, one
         of the reasons why the Committee of the Vienna Chamber of Lawyers exists is precisely to verify that the persons who claim
         to become trainee lawyers satisfy all the conditions required by the national legislation for inclusion on the list. If it
         were considered that the contractual link between Mr Pavlov and Mr Famira is sufficient in itself for Mr Pavlov to be already
         regarded as being in ‘employment’ classified as that of a trainee lawyer and for the inference to be made that his working
         conditions are being affected by the refusal to include him on the list of trainee lawyers, that would mean that the professional
         organisations which the Member States have entrusted with the performance of various verification tasks are, in fact and in
         law, bound by the description of the employment referred to in the contract of employment. There would then be a real risk
         of circumvention of national legislation, thus allowing free access to activities or professions which are supposed to be
         regulated.
      
      56.      For the same reason I have just mentioned in relation to what is stated in the contract of employment of Mr Pavlov, I do not
         consider that the decision of the employment authorities which authorised him to be hired as a trainee lawyer creates any
         right to inclusion on the list: the Austrian Government rightly said at the hearing that it is not for those authorities but
         for the Committee of the Chamber of Lawyers to verify that a candidate for inclusion fulfils the conditions required by national
         legislation to that effect. From a functional point of view, Mr Pavlov cannot be regarded as technically already legally employed
         as a trainee lawyer at the time when he made the application for inclusion on the list.
      
      57.      The Court’s case-law on the matter attests to the fact that working conditions comprise the legal rules applicable to the
         employment relationship concerned as well as the advantages, material or other, granted to the workers, but not the conditions
         of access to a profession in themselves. For example, the Court has held, in particular, that a national law that aimed at
         preventing a worker who resumed his employment at his old company from incurring the disadvantages resulting from absence
         due to military service, in particular by providing that the time spent in military service is taken into consideration for
         the duration of service in the company, ‘is located in the framework of the conditions of employment and work’; (32) that the grant of a separation allowance to compensate for the inconveniences suffered by a worker separated from his home
         constitutes additional remuneration and ‘is thus one of the “conditions of employment and work”’; (33) that legislation allowing only national researchers to be registered on the organisation chart of the national research council
         has an impact on the conditions of work in that that registration determines contract duration and career development; (34) and that a national rule under which nationals of a third State with which the Community has concluded an Association Agreement
         may fill a post for foreign language assistants only by means of contracts of employment for a definite period contravenes
         the principle of non-discrimination on the basis of nationality as regards working conditions. (35) This variety of measures that are considered by the Court as falling within the concept of ‘working conditions’ is in no
         way comparable with the purpose of the legislation at issue in the main proceedings, which concerns access to the list of
         trainee lawyers. 
      
      58.      On this type of legislation, as the parties have not failed to point out, the Court has already had to deal with disputes
         concerning the activity of trainee lawyer in cases such as Morgenbesser. (36) In that judgment, it affirmed that the activity of trainee lawyer is not a regulated profession separable from that of the
         profession of lawyer. (37) Even if, in that case, the Court did not express a view on whether inclusion on the list of trainee lawyers formed part of
         the working conditions, it none the less made clear that activity as a trainee lawyer must be regarded as constituting the
         practical part of the training necessary for access to the profession of lawyer. (38) This lesson had moreover, already been foreshadowed by the Lawrie-Blum judgment, (39) in which the Court considered a problem entirely analogous to that which arises in this case, although concerning a different
         profession.
      
      59.      In Lawrie-Blum, the Court had to rule on the refusal by the German authorities to allow access by a United Kingdom national to the practical
         training required to teach in secondary schools on the sole ground that the person did not possess German nationality. In
         ruling on this issue, it did not consider that it was dealing with a working condition but found, on the contrary, that ‘completion
         of the period of preparatory service and possession of the diploma granted for passing the second state examination are, de jure, essential for admission to the profession of teacher’. (40) The applicant in the main proceedings had therefore suffered discrimination in regard to access to employment, (41) but not in his working conditions.
      
      60.      This jurisprudence illuminates unequivocally the scope of Article 38(1), first indent, of the Association Agreement with the
         Republic of Bulgaria, which does not cover access to employment. This is confirmed, moreover, by Article 42(1) of the same
         agreement, which, as regards access to employment of the Bulgarian nationals, refers to the bilateral agreements in the matter
         and wishes to see this access improve in the future. (42)
      
      61.      Access to the activities of an Austrian trainee lawyer and then a lawyer is, in addition, undeniably governed by the national
         legislative and regulatory provisions reserving those activities to persons who fulfil certain conditions and prohibiting
         access to those who do not. Therefore, what Mr Pavlov is asking is not so much to enjoy equal treatment in his employment
         but to gain access to a regulated profession, which, for Bulgarian nationals, prior to the accession of Bulgaria to the European
         Union, is not governed by the provisions of Article 38(1), first indent. It cannot be inferred from that article that it was
         the will of the contracting parties to eliminate all discrimination based on nationality in regard to access by Bulgarian
         nationals to the regulated professions. In that connection, regard must be had to the fact that Article 38(1), first indent,
         is in Chapter I of Title IV of the Association Agreement, entitled ‘Free movement of workers’, while the Agreement mentions
         the regulated professions in Article 47 in the Chapter on establishment. This constitutes a clear indication that the contracting
         parties were not seeking to deal with the question of access to the regulated professions by means of Article 38 of the Agreement.
         Article 47 specifically provides that in the future, the Association Council is to facilitate access to the regulated professions
         and the practice thereof through the adoption of measures relating to the recognition of qualifications. Therefore, it must
         be inferred that the Agreement does not contain, in respect of access to those professions, a prohibition on discrimination
         comparable to that contained in the first indent of Article 38(1).
      
      62.      This conclusion is not invalidated by Article 45 of the Association Agreement with the Republic of Bulgaria which states that
         ‘[e]ach Member State shall grant, from entry into force of the Agreement, for the establishment of Bulgarian companies and
         nationals and for the operation of Bulgarian companies and nationals established in its territory, a treatment no less favourable
         than that accorded to its own companies and nationals’. In relation to that Article 45, Articles 42 and 47 of the same agreement
         are special norms which, as such, preclude the application of that article in the present case.
      
      63.      Finally, however distressing and unsatisfactory the situation confronting Mr Pavlov may be, it cannot be said that the Association
         Agreement with the Republic of Bulgaria lays down any general principle of non-discrimination on the ground of nationality
         which would be applicable where Bulgarian nationals are not carrying on an economic activity, since that situation is not
         covered by the provisions relating to the free movement of workers, nor can it be covered by the provisions relating to access
         to the regulated professions.
      
      64.      The Court has often been generous in its interpretation of the Association Agreements and sometimes even partnership agreements.
         But one way or another, the assimilation advocated by the Court between the scope of the provisions contained in the various
         international agreements of the Community and those contained in the Treaty always found an element of connection in the text
         of the agreement concerned. In this case, there is no such element of connection. Doubtless we are experiencing the inherent
         limits to the principle of the association of the European Union with a non-Member country which, although intended to pave
         the way for accession, manifestly does not provide so comprehensive and complete a protection as that afforded by the treaties
         establishing the Union. Except by disregarding the will of the contracting parties and taking the attendant risk of reducing
         the interest in accession itself, it does not seem to me to be possible to consider that the Member States have undertaken,
         by way of the Association Agreement with the Republic of Bulgaria, to eliminate all discrimination on the ground of nationality
         up to and including access to the regulated professions.
      
      65.      In these circumstances, and for all foregoing reasons, I propose that the Court should reply that neither the first indent
         of Article 38(1) nor any other provision of the Association Agreement with the Republic of Bulgaria is intended to apply in
         a situation in which a Bulgarian national is refused, before the accession of Bulgaria to the European Union, inclusion on
         the list of trainee lawyers owing to the fact that the applicable national legislation provides that only Austrian nationals
         or persons assimilated thereto can gain access to the profession of lawyer in Austria.
      
      V –  Conclusion
      66.      In the light of the foregoing considerations, I propose that the Court should reply to the questions referred by the Oberste
         Berufungs- und Disziplinarkommission as follows:
      
      (1)      Article 38(1), first indent, of the Europe Agreement establishing an association between the European Communities and their
         Member States, on the one hand, and the Republic of Bulgaria, on the other hand, signed on 1 March 1993, satisfies the conditions
         required of a provision of the law of the European Union for it to have direct effect and could therefore be directly applicable
         in the period from 2 January 2004 to 31 December 2006.
      
      (2)      Neither the first indent of Article 38(1) nor any other provision of the Association Agreement is intended to apply in a situation
         in which a Bulgarian national is refused, before the accession of the Republic of Bulgaria to the European Union, inclusion
         on the list of trainee lawyers owing to the fact that the applicable national legislation provides that only Austrian nationals
         or persons assimilated thereto can gain access to the profession of lawyer in Austria.
      
      1 –	Original language: French.
      
      2 –	OJ 1994 L 358, p. 3.
      
      3 –	BGBl 556/1985 in the version of BGBl I, 71/1999 applicable in this case.
      
      4 –	RGBl 96/1868 in the version of BGBl I, 128/2004 applicable in this case.
      
      5 –	In 2004 according to Mr Pavlov.
      
      6 –	6 July 2004 according to Mr Pavlov.
      
      7 –	Case C-118/09 Koller [2010] ECR I-0000.
      
      8 –	Ibid, paragraph 23.
      
      9 –	Cases C-235/99 Kondova [2001] ECR I-6427, paragraph 31; C-162/00 Pokrzeptowicz-Meyer [2002] ECR I-1049, paragraph 19 and the case-law cited; and C‑171/01 Wählergruppe Gemeinsam [2003] ECR I-4301, paragraph 53 and the case-law cited.
      
      10 –	Article 37(1), first indent, of the Europe Agreement establishing an association between the European Communities and their
         Member States, of the one part, and the Republic of Poland, of the other part, concluded and approved on behalf of the Community
         by Decision 93/743/Euratom, ECSC, EC of the Council and the Commission of 13 December 1993 (OJ 1993 L 348, p. 1) provides
         that ‘[s]ubject to the conditions and modalities applicable in each Member State: – the treatment accorded to workers of Polish
         nationality, legally employed in the territory of a Member State shall be free from any discrimination based on nationality,
         as regards working conditions, remuneration or dismissal, as compared to its own nationals’.
      
      11 –	Pokrzeptowicz-Meyer, paragraph 19 et seq. 
      
      12 –	Ibid, paragraphs 21 and 22.
      
      13 –	Ibid, paragraph 23.
      
      14 –	Kondova, paragraphs 36 and 37. 
      
      15 –	Ibid, paragraph 38.
      
      16 –	For similar reasoning with reference to Article 45(1) of the Association Agreement with the Republic of Bulgaria, see Kondova, paragraph 38.
      
      17 –	See Pokrzeptowicz-Meyer; Case C-438/00 Deutscher Handballbund [2003] ECR I‑4135; Wählergruppe Gemeinsam; and Case C-265/03 Simutenkov [2005] ECR I‑2579.
      
      18 –	Case C-312/91 Metalsa [1993] ECR I-3751, paragraph 11, and Kondova, paragraph 52.
      
      19 –	See Kondova, paragraphs 50 to 55.
      
      20 –	Cited in footnote 9 above.
      
      21 –	See footnote 10 of this Opinion.
      
      22 –	Pokrzeptowicz-Meyer, paragraph 32.
      
      23 –	I note, in this connection, that both Article 1 of the Association Agreement with the Republic of Poland and Article 1
         of the Association Agreement with the Republic of Bulgaria list the objectives pursued by the association and that these objectives
         are very close. These two agreements have, moreover, a very similar structure. On the objectives pursued by the Association
         Agreement with the Republic of Bulgaria according to the Court, see paragraph 34 of this Opinion.
      
      24 –	It is significant to emphasize that, while the Title III of the Association Agreement with the Republic of Bulgaria entitled
         ‘Free movement of goods’, Title IV is merely entitled ‘Movement of workers, right of establishment, provision of services’.
      
      25 –	See, on the prohibition of discrimination on the basis of nationality as regards working conditions in the Association
         Agreement with the Republic of Poland, Pokrzeptowicz-Meyer, paragraphs 40 and 41; on the corresponding provision in the Association Agreement with the Slovak Republic, Deutscher Handballbund, paragraphs 34 and 35; and on the provision on the movement of Russian workers in the partnership agreement concluded between
         Russia and the Community, Simutenkov, paragraph 6. 
      
      26 –	However, it was asserted at the hearing, and without its being challenged by the other interested parties present, that
         this residence permit must be construed in Austrian law as a legal title authorising Mr Pavlov to stay in Austria without
         giving him access to the Austrian labour market. 
      
      27 –	In this connection, the representatives of Mr Pavlov and Mr Famira maintained during the hearing that access to the profession
         of lawyer and therefore to the professional title was not a decisive factor because not all trainee lawyers intended to become
         lawyers. However, I note that we must acknowledge that the reason for inclusion on the list of trainee lawyers, as well as
         its main purpose, is, once the practical training is completed and the examination passed, to obtain the title of lawyer and
         be entitled to practise that profession. 
      
      28 –	On the basis of Paragraph 15(3) of the RAO in regard to cases where representation by a lawyer is not prescribed by law.
         It is to be noted that that power was requested concomitantly with the request for inclusion on the list of trainee lawyers
         made by Mr Pavlov and Mr Famira.
      
      29 –	Whose wording is almost identical to that of Article 38(1), first indent, of the Association Agreement with the Republic
         of Bulgaria, since it provides that ‘[s]ubject to the conditions and modalities applicable in each Member State: – treatment
         accorded to workers of Slovak Republic nationality, legally employed in the territory of a Member State shall be free from
         any discrimination based on nationality, as regards working conditions, remuneration or dismissal, as compared to its own
         nationals’ (Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and
            the Slovak Republic, of the other part (OJ 1994 L 359, p. 1)).
      
      30 –	Deutscher Handballbund, paragraph 33 et seq.
      
      31 –	Ibid, paragraph 46. The Court went on to adopt a similar reasoning in Simutenkov, paragraphs 32 and 37. 
      
      32 –	Case 15/69 Württembergische Milchverwertung-Südmilch [1969] ECR 363, paragraph 5.
      
      33 –	Case 152/73 Sotgiu [1974] ECR 153, paragraph 8 in fine. The boundary between working conditions and remuneration is more vague here.
      
      34 –	Case 225/85 Commission v Italy [1987] ECR 2625.
      
      35 –	Pokrzeptowicz-Meyer, paragraph 39. 
      
      36 –	Case C‑313/01 Morgenbesser [2003] ECR I‑13467.
      
      37 –	Ibid, paragraph 52; see also Case C‑345/08 Pesla [2009] ECR I‑11677, paragraph 23. 
      
      38 –	Morgenbesser, paragraph 51, and Pesla, paragraph 23. 
      
      39 –	Case 66/85 Lawrie-Blum [1986] ECR 2121.
      
      40 –	Ibid, paragraph 6.
      
      41 –	Ibid, paragraph 8.
      
      42 –	See point 4 of this Opinion.