Christine Morgenbesser v Consiglio dell'Ordine degli avvocati di Genova.
Date: 2003-11-13
45. Directive 98/5 concerns only lawyers fully qualified as such in their Member State of origin, and therefore does not apply to persons who have not yet acquired the professional qualification necessary to practise the profession of lawyer.  It is therefore not applicable in a case such as that at issue in the main proceedings.
46. According to Article 2 of Directive 89/48, that directive applies to any national of a Member State wishing to pursue a   " regulated profession"  in a host Member State in a self-employed capacity or as an employed person.
47. Ms Morgenbesser argues that she is not claiming access to the profession of   " avvocato"  as such, but, at this stage, to that of praticante.  She maintains that the activities of a praticante fall within the definition of a   " regulated profession"  within the meaning of Directive 89/48.  Since, she argues, the only precondition for access to that profession is a legal diploma, she can rely on her maîtrise en droit in order to obtain that access.  She points out that a significant number of praticanti and praticanti-patrocinanti who have not passed the final examination continue to carry on their legal activities without being removed from the register of praticanti.
48. According to the definition given in Article 1(c) of Directive 89/48, a regulated profession is   " the regulated professional activity or range of activities which constitute this profession in a Member State"  and, according to the definition appearing in Article 1(d), a regulated professional activity is   " a professional activity, in so far as the taking up or pursuit of such activity or one of its modes of pursuit in a Member State is subject, directly or indirectly by virtue of laws, regulations or administrative provisions, to the possession of a diploma" .
49. A profession must therefore be regarded as regulated, within the meaning of Directive 89/48, where access to, or pursuit of, the professional activity in question is governed by laws, regulations or administrative provisions that create a system under which that professional activity is expressly reserved for those who fulfil certain conditions and access to it is prohibited to those who do not fulfil them (Case C-164/94  Aranitis  [1996] ECR I-135, paragraph 19, and  Fernández de Bobadilla , paragraph 17).
50. Access to the activities of praticante and praticante-patrocinante which are at issue in the main proceedings, and the pursuit of those activities, are governed by legal provisions establishing a system which reserves those activities for persons who fulfil certain conditions and prohibits access to persons who do not fulfil them.
51. However, it follows from those provisions that the pursuit of those activities is designed to constitute the practical part of the training necessary for access to the profession of   " avvocato" .  If, at the end of those six years, the praticante-patrocinante does not pass the examination prescribed by point 6 of the first paragraph of Article 17 of Decree-Law No 1578/33, he will no longer be authorised, under those provisions, to pursue the activities which he carried on in that capacity.
52. In those circumstances, the activity of praticante-patrocinante cannot be described as a   " regulated profession"  within the meaning of Directive 89/48 separate from that of   " avvocato" .
53. The fact that a significant number of praticanti-patrocinanti who have not passed the final examination continue to exercise legal activities and are not removed from the register of praticanti cannot have the effect of qualifying the activities of praticante or patrocinante, considered in isolation, as a regulated profession within the meaning of Directive 89/48.
54. It also appears that, since Ms Morgenbesser has not obtained in France the certificat d ' aptitude à la profession d ' avocat (CAPA), she does not hold the professional qualifications for access to the status of   " stagiaire"  at the bar of that Member State.  In those circumstances, the maîtrise en droit which she holds does not, in itself, constitute a   " diploma, certificate or other evidence of formal qualifications"  within the meaning of Article 1(a) of Directive 89/48.
55. It follows that Ms Morgenbesser is not able to rely on Directive 89/48.
57. According to the case-law the principles of which were set out in  Vlassopoulou , the authorities of a Member State, when considering a request by a national of another Member State for authorisation to exercise a regulated profession, must take into consideration the professional qualification of the person concerned by making a comparison between the qualifications certified by his diplomas, certificates and other formal qualifications and by his relevant professional experience and the professional qualifications required by the national rules for the exercise of the profession in question (see, most recently, Case C-232/99  Commission  v  Spain  [2002] ECR I-4235, paragraph 21).
58. That obligation extends to all diplomas, certificates and other evidence of formal qualifications as well as to the relevant experience of the person concerned, irrespective of whether they were acquired in a Member State or in a third country, and it does not cease to exist as a result of the adoption of directives on the mutual recognition of diplomas (Case C-238/98  Hocsman  [2000] ECR I-6623, paragraphs 23 and 31;  Commission  v  Spain , paragraph 22).
60. However, the period of practice at issue in the main proceedings comprises the pursuit of activities, normally remunerated by the client or by the firm for which the praticante works, with a view to access to a regulated profession to which Article 43 EC applies.  In so far as the remuneration of the praticante takes the form of a salary, Article 39 EC may also apply.
61. Both Article 39 EC and Article 43 EC may therefore apply to a situation such as that in the main proceedings.  However, the analysis does not differ according to whether it is freedom of movement for workers or the freedom of establishment which is relied upon in opposing the refusal, on the part of the Bar Council of Genoa acting in its capacity as the competent authority for enrolling praticanti on the register, to take the legal diploma obtained in another Member State and the professional experience acquired into account for the purposes of enrolment.
62. As the Court has already held, the exercise of the right of establishment is hindered if national rules fail to take account of learning, skills and qualifications already acquired by the person concerned in another Member State, so that the competent national authorities must measure whether such factors sufficiently demonstrate that missing learning and skills have been acquired ( Vlassopoulou , paragraphs 15 and 20;  Fernández de Bobadilla , paragraph 33).
64. It is true that the recognition, for academic and civil purposes, of the equivalence of a diploma obtained in one Member State may be relevant, and even decisive, for enrolment with the bar of another Member State (Case 71/76  Thieffry  [1977] ECR 765).
65. It does not follow, however, that, for the purposes of the comparative examination which the competent authority of the host Member State must undertake in circumstances such as those in the main proceedings, it is necessary to examine the academic equivalence of the diploma relied upon by the person concerned in relation to the diploma normally required of nationals of that State.
66. The taking into account of the diploma of the person concerned, such as the maîtrise en droit granted by a French university, must therefore be carried out in the context of the assessment of the whole of the training, academic and professional, which that person is able to demonstrate.
67. It is therefore the duty of the competent authority to examine, in accordance with the principles set out by the Court of Justice in  Vlassopoulou  and  Fernández de Bobadilla , whether, and to what extent, the knowledge certified by the diploma granted in another Member State and the qualifications or professional experience obtained there, together with the experience obtained in the Member State in which the candidate seeks enrolment, must be regarded as satisfying, even partially, the conditions required for access to the activity concerned.
68. That examination procedure must enable the authorities of the host Member State to assure themselves, on an objective basis, that the foreign diploma certifies that its holder has knowledge and qualifications which are, if not identical, at least equivalent to those certified by the national diploma.  That assessment of the equivalence of the foreign diploma must be carried out exclusively in the light of the level of knowledge and qualifications which its holder can be assumed to possess having regard to that diploma, having regard to the nature and duration of the studies and practical training to which the diploma relates (Case 222/86  Heylens and Others  [1987] ECR 4097, paragraph 13;  Vlassopoulou , paragraph 17).
69. In the course of that examination, a Member State may, however, take into consideration objective differences relating to both the legal framework of the profession in question in the Member State of origin and to its field of activity.  In the case of the profession of lawyer, a Member State may therefore carry out a comparative examination of diplomas, taking account of the differences identified between the national legal systems concerned ( Vlassopoulou , paragraph 18).
70. If that comparative examination of diplomas results in the finding that the knowledge and qualifications certified by the foreign diploma correspond to those required by the national provisions, the Member State must recognise that diploma as fulfilling the requirements laid down by its national provisions. If, on the other hand, the comparison reveals that the knowledge and qualifications certified by the foreign diploma and those required by the national provisions correspond only partially, the host Member State is entitled to require the person concerned to show that he has acquired the knowledge and qualifications which are lacking ( Vlassopoulou , paragraph 19).
71. By the same token, the competent national authorities must measure whether the learning and skills acquired in the host Member State, either through a course of study or by way of practical experience, sufficiently demonstrate that the missing knowledge and qualifications have in the meantime been acquired ( Vlassopoulou , paragraph 20).