Angelo Alberto Torresi and Pierfrancesco Torresi v Consiglio dell’Ordine degli Avvocati di Macerata.
Date: 2014-07-17
17. In that regard, it must be recalled that, in accordance with settled case-law of the Court, in order to determine whether a body making a reference is a ‘court or tribunal’ for the purposes of Article 267 TFEU, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes , whether it applies rules of law and whether it is independent (see, inter alia, the judgments in Miles and Others, C‑196/09, EU:C:2011:388, paragraph 37 and case-law cited, and Belov , C‑394/11, EU:C:2013:48, paragraph 38).
18. As regards, more specifically, the independence of the body making a reference, that condition presumes that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them (see Wilson , EU:C:2006:587, paragraph 51).
19. Further, in order to establish whether a national body, entrusted by law with different categories of function, is to be regarded as a ‘court or tribunal’ within the meaning of Article 267 TFEU, it is necessary to determine in what specific capacity it is acting within the particular legal context in which it seeks a ruling from the Court. A national court may refer a question to the Court only if there is a case pending before it and if it is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature (see Belov , EU:C:2013:48, paragraphs 39 and 41).
22. Secondly, it is evident that the Consiglio Nazionale Forense is subject to safeguards laid down by the Italian Constitution in relation to the independence and impartiality of the court. In exercising its functions the Consiglio Nazionale Forense is wholly autonomous, it is not subordinate to any other body and it does not take orders or instructions from any source whatsoever. Further, the provisions of the Italian Code of civil procedure in relation to abstention and recusal are fully applicable to it.
23. Thirdly, as confirmed by the Italian Government at the hearing, unlike the local Bar Council which, in proceedings brought against its decision, is a party to those proceedings before the Consiglio Nazionale Forense, the Consiglio Nazionale Forense may not be a party to the proceedings brought before the Corte suprema di cassazione against its decision ruling on the action brought against the Bar Council concerned. The Consiglio Nazionale Forense is therefore, as required by the Court’s case-law (see Wilson , EU:C:2006:587, paragraph 49), acting as a third party in relation to the authority which adopted the decision against which proceedings were brought.
32. In that regard, it must be borne in mind that, even when there is case-law of the Court resolving the point of law at issue, national courts and tribunals remain entirely at liberty to bring a matter before the Court if they consider it appropriate to do so (see the judgment in Cilfit and Others , 283/81, EU:C:1982:335, paragraphs 13 to 15), and the fact that the provisions whose interpretation is sought have already been interpreted by the Court does not deprive the Court of jurisdiction to give a further ruling (see, to that effect, the judgment in Boxus and Others , C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, EU:C:2011:667, paragraph 32).
36. In that regard, the Court has already had occasion to hold that that directive establishes a mechanism for the mutual recognition of the professional titles of migrant lawyers wishing to practise under their professional title obtained in the home Member State (see the judgment in Luxembourg  v Parliament and Council , C‑168/98, EU:C:2000:598, paragraph 56).
37. Further, as is clear from recital (6) in the preamble to Directive 98/5, by that directive the EU legislature sought, inter alia, to put an end to the differences in national rules on the conditions for registration with the competent authorities, which gave rise to inequalities and obstacles to freedom of movement (see the judgment in Commission  v Luxembourg, C‑193/05, EU:C:2006:588, paragraph 34, and Wilson , EU:C:2006:587, paragraph 64).
38. In that context, Article 3 of Directive 98/5 undertakes a complete harmonisation of the preliminary conditions required for the exercise of the right of establishment conferred by that directive, providing that a lawyer who wishes to practise in a Member State other than that in which he obtained his professional qualification is obliged to register with the competent authority in that Member State, which must effect that registration ‘upon presentation of a certificate attesting to his registration with the competent authority of the home Member State’ (see, to that effect, Commission v Luxembourg , EU:C:2006:588, paragraphs 35 and 36, and Wilson , EU:C:2006:587, paragraphs 65 and 66).
39. In that regard, the Court has previously ruled that the presentation to the competent authority of the host Member State of a certificate attesting to registration with the competent authority of the home Member State is the only condition to which registration of the person concerned in the host Member State may be subject, enabling him to practise in the latter Member State under his home-country professional title (see Commission v Luxembourg , EU:C:2006:588, paragraph 37, and Wilson , EU:C:2006:587, paragraph 67).
42. In that regard, it must be recalled that, in accordance with settled case-law of the Court, EU law cannot be relied on for abusive or fraudulent ends (see, inter alia, the judgments in Halifax and Others , C‑255/02, EU:C:2006:121, paragraph 68, and SICES and Others , C‑155/13, EU:C:2014:145, paragraph 29).
43. In particular, with regard to combating abuse of freedom of establishment, a Member State is entitled to take measures designed to prevent certain of its nationals from attempting, under cover of the rights created by the FEU Treaty, improperly to circumvent the rules of their national legislation (see the judgment in Inspire Art , C‑167/01, EU:C:2003:512, paragraph 136).
44. A finding of abuse requires a combination of objective and subjective elements (see SICES and Others , EU:C:2014:145, paragraph 31).
45. With regard to the objective element, it must be apparent from a combination of objective circumstances that, despite formal observance of the conditions laid down by EU rules, the purpose of those rules has not been achieved (see SICES and Others , EU:C:2014:145, paragraph 32 and case-law cited).
46. As regards the subjective element, it must be apparent that there is an intention to obtain an improper advantage from the EU rules by artificially creating the conditions laid down for obtaining it (see, to that effect, the judgment in O. and B ., C‑456/12, EU:C:2014:135, paragraph 58 and case-law cited).
48. In that regard, it must be held that the right of nationals of a Member State to choose, on the one hand, the Member State in which they wish to acquire their professional qualifications and, on the other, the Member State in which they intend to practise their profession is inherent in the exercise, in a single market, of the fundamental freedoms guaranteed by the Treaties (see, to that effect, the judgment in Commission  v Spain , C‑286/06, EU:C:2008:586, paragraph 72).