Josep Peñarroja Fa.
Date: 2011-03-17
27. It should first of all be pointed out that the definition of ‘regulated profession’ is a matter of EU law (see Case C‑586/08 Rubino  [2009] ECR I‑0000, paragraph 23 and the case-law cited).
30. Thus, the sole purpose of those provisions is to facilitate recourse to the services of professionals, whether members of regulated professions or not, and not to lay down rules governing recognition of a particular qualification, a matter which does not fall within the competence of the cours d’appel or of the Bureau  of the Cour de cassation (see, by analogy, Case C‑285/01 Burbaud  [2003] ECR I‑8219, paragraph 91). Moreover, those courts may lawfully have recourse to experts who are not entered in those registers. Accordingly, those provisions do not, by themselves, establish a ‘regulated profession’.
37. In that regard, it should be borne in mind that, according to established case-law, the essential characteristic of remuneration lies in the fact that it constitutes consideration for the service in question and is normally agreed upon between the provider and the recipient of the service (see, inter alia, Case C‑355/00 Freskot  [2003] ECR I‑5263, paragraphs 54 and 55, and Case C‑169/08 Presidente del Consiglio dei Ministri [2009] ECR I‑10821, paragraph 23 and the case-law cited).
38. Accordingly, the sole fact that the remuneration is fixed in accordance with a rate decided by the public authority, as is the case for court experts in France, is of no consequence as regards the categorisation of the work which those experts are called upon to perform as the provision of services (see, by analogy, Case C‑157/99 Smits and Peerbooms [2001] ECR I‑5473, paragraph 56).
42. In that regard, it should be borne in mind that the Court has consistently held that the first paragraph of Article 45 EC applies only to activities which in themselves involve a direct and specific connection with the exercise of official authority (see, to that effect, inter alia, Case C‑2/74 Reyners [1974] ECR 631, paragraphs 45 and 54).
44. The translations carried out by such an expert are therefore merely ancillary steps and leave the discretion of judicial authority and the free exercise of judicial power intact, so that – as submitted by Mr Peñarroja Fa, the French Government, the European Commission and the EFTA Surveillance Authority – such translation services cannot be regarded as activities connected with the exercise of official authority (see, by analogy, Reyners , paragraphs 52 and 53, and Case C‑306/89 Commission v Greece [1991] ECR I‑5863, paragraph 7).
50. In that context, it should be noted that Article 49 EC requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction – even if it applies to national providers of services and to those of other Member States alike – which is liable to prohibit, to impede or to render less advantageous the activities of a provider of services established in another Member State in which he lawfully provides similar services (see, to that effect, inter alia, Case C‑58/98 Corsten [2000] ECR I‑7919, paragraph 33, and Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I‑7633, paragraph 51 and the case-law cited).
53. In consequence, it must be held that, even though there is no formal obligation requiring the courts to appoint only those experts who are enrolled in those registers, the establishment of the registers constitutes a restriction of the freedom to provide the services of a court expert translator (see, by analogy, Case 249/81 Commission v Ireland [1982] ECR 4005, paragraph 28).
54. It is also settled law that, even in the absence of harmonisation in this area, such a restriction of the freedom to provide services may, where it is applicable to all individuals or undertakings carrying on business in the territory of the host Member State, be justified by an overriding reason in the public interest to the extent that it is appropriate for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it, and in so f ar as that interest is not safeguarded by the rules to which such a service provider is subject in the Member State of establishment (see, to that effect, inter alia, Joined Cases C‑369/96 and C‑376/96 Arblade and Others  [1999] ECR I‑8453, paragraphs 34 and 35 and the case-law cited, and Case C‑439/99 Commission v Italy [2002] ECR I‑305, paragraph 23 and the case-law cited).
58. It is settled law that national authorities must ensure, inter alia, that qualifications obtained in another Member State are accorded their proper value and duly taken into account (see, inter alia, Case C‑340/89 Vlassopoulou [1991] ECR I‑2357, paragraph 16; Case C‑31/00 Dreessen [2002] ECR I‑663, paragraphs 23 and 24; and Rubino , paragraph 34).
63. It follows that all decisions must be open to judicial scrutiny enabling their legality under EU law to be reviewed. In order to ensure that such review by the courts is effective, the interested party must be able to obtain the reasons for the decision taken in relation to him, thus enabling that interested party to defend himself under the best possible conditions and to decide, with full knowledge of the relevant facts, whether it is worth applying to the courts. Consequently, the competent national authority is under a duty to inform that interested party of the reasons upon which its refusal is based, either in the decision itself or in a subsequent communication made at the request of that party (see Case 222/86 Heylens and Others [1987] ECR 4097, paragraphs 15 and 17, and Vlassopoulou , paragraph 22).
76. In a situation such as that of the case before the referring court, EU law requires the authority to which an application has been made for enrolment in a register such as the national register of court experts to take into consideration the qualifications obtained by the applicant in other Member States, in order to determine whether – and, if so, to what extent – those qualifications might attest to skills equivalent to those normally expected of a person who has been enrolled for three consecutive years on a register maintained by a cour d’appel (see, by analogy, Vlassopoulou , paragraph 16).