Graham J. Wilson v Ordre des avocats du barreau de Luxembourg.
Date: 2006-09-19
34. It is true that it is not for the Court to rule on the compatibility of national rules with provisions of Community law in proceedings brought under Article 234 EC (see, in particular, Case C‑130/93 Lamaire  [1994] ECR I-3215, paragraph 10). Furthermore, under the system of judicial cooperation established by that provision the interpretation of national rules is a matter for the national courts and not the Court of Justice (see, in particular, Case C‑37/92 Vanacker and Lesage  [1993] ECR I-4947, paragraph 7).
35. On the other hand, the Court does have jurisdiction to supply the national court with all the guidance as to the interpretation of Community law necessary to enable that court to rule on the compatibility of the national rules with the provisions of Community law (see, in particular, Lamaire , paragraph 10).
38. In that regard, it must be observed that, according to settled case-law, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary for the national court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based (see, inter alia, Case C‑67/96 Albany  [1999] ECR I-5751, paragraph 39, and Joined Cases C‑51/96 and C‑191/97 Deliège [2000] ECR I-2549, paragraph 30).
39. The information provided in orders for reference must not only enable the Court to reply usefully but must also give the Governments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 23 of the Statute of the Court of Justice. It is the Court’s duty to ensure that that opportunity is safeguarded, bearing in mind that under that provision only the orders for reference are notified to the interested parties ( Albany , paragraph 40, and Case C‑145/03 Keller  [2005] ECR I-2529, paragraph 30).
45. It follows from that provision that Member States must take measures which are sufficiently effective to achieve the aim of Directive 98/5 and that they must ensure that the rights thus conferred may be effectively relied upon before the national courts by the persons concerned (see, by way of analogy, Case 222/84 Johnston  [1986] ECR 1651, paragraph 17).
46. As the French Government and the Commission have pointed out, the judicial review required by that provision reflects a general principle of Community law stemming from the constitutional traditions common to the Member States and enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights (see, inter alia, Johnston , paragraph 18; Case 222/86 Heylens and Others  [1987] ECR 4097, paragraph 14; Case C‑424/99 Commission  v Austria  [2001] ECR I‑9285, paragraph 45; and Case C‑459/99 MRAX [2002] ECR I‑6591, paragraph 101).
47. In order to ensure effective judicial protection of the rights laid down in Directive 98/5 the body called upon to hear appeals against decisions refusing registration, referred to in Article 3 of that directive, must be a court or tribunal as defined by Community law.
48. That definition has been laid down in the case-law of the Court relating to the definition of a national court or tribunal within the meaning of Article 234 EC, setting out a certain number of criteria that must be satisfied by the body concerned, 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 (see, to that effect, Case 61/65 Vaassen-Göbbels [1966] ECR 261 and Case C‑54/96 Dorsch Consult  [1997] ECR I-4961, paragraph 23) and its independence and impartiality (see, to that effect, Case 14/86 Pretore di Salò  v Persons Unknown [1987] ECR 2545, paragraph 7; Case 338/85 Pardini [1988] ECR 2041, paragraph 9; and Case C‑17/00 De Coster  [2001] ECR I-9445, paragraph 17).
49. The concept of independence, which is inherent in the task of adjudication, involves primarily an authority acting as a third party in relation to the authority which adopted the contested decision (see, to that effect, inter alia Case C‑24/92 Corbiau  [1993] ECR I-1277, paragraph 15, and Case C‑516/99 Schmid  [2002] ECR I-4573, paragraph 36).
50. The concept has two other aspects.
51. The first aspect, which is external, 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, to that effect, Case C‑103/97 Köllensperger and Atzwanger [1999] ECR I-551, paragraph 21, and Case C‑407/98 Abrahamsson and Anderson  [2000] ECR I-5539, paragraph 36; see also, to the same effect, Eur. Court HR Campbell and Fell  v. United Kingdom , judgment of 28 June 1984, Series A No 80, § 78). That essential freedom from such external factors requires certain guarantees sufficient to protect the person of those who have the task of adjudicating in a dispute, such as guarantees against removal from office (Joined Cases C‑9/97 and C‑118/97 Jokela and Pitkäranta [1998] ECR I-6267, paragraph 20).
52. The second aspect, which is internal, is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject-matter of those proceedings. That aspect requires objectivity (see, to that effect, Abrahamsson and Anderson , paragraph 32) and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law.
53. Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and the grounds for abstention, rejection and dismissal of its members, in order to dismiss any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (see, in that regard, Dorsch Consult , paragraph 36; Köllensperger and Atzwanger , paragraphs 20 to 23; and De Coster , paragraphs 18 to 21; see also, to that effect, Eur Court HR De Cubber  v. Belgium , judgment of 26 October 1984, Series A No 86, § 24).
60. Article 9 of Directive 98/5, although it does not preclude appeal proceedings being brought before a body which is not a court or tribunal, does not provide that a legal remedy may be open to the person concerned only after all other remedies have been exhausted. In any event, where an appeal before a non-judicial body is provided for by national law, Article 9 requires actual access within a reasonable period (see, by way of analogy, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others  v Commission  [2002] ECR I‑8375, paragraphs 180 to 205, 223 and 234) to a court or tribunal as defined by Community law, which is competent to give a ruling on both fact and law.
61. Apart from the question whether proceedings before two non-judicial bodies may be reconciled with the requirement of a reasonable period, the jurisdiction of the Cour de cassation (Court of Cassation) of the Grand Duchy of Luxembourg is limited to questions of law, so that it does not have full jurisdiction (see, to that effect, Eur. Court H.R. Incal  v. Turkey  judgment of 9 June 1998, Reports of judgments and decisions 1998-IV, p. 1547, § 72).
62. In the light of the foregoing, the answer to the first two questions must be that Article 9 of Directive 98/5 must be interpreted as meaning that it precludes an appeal procedure in which the decision refusing registration, referred to in Article 3 of that directive, must be challenged at first instance before a body composed exclusively of lawyers practising under the professional title of the host Member State and on appeal before a body composed for the most part of such lawyers, where the appeal before the supreme court of that Member State permits judicial review of the law only and not the facts.
The third and fourth questions
64. In that regard, as is clear from recital (6) in the preamble to Directive 98/5, by that directive, the Community legislature sought 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 free movement (see also, to that effect, Case C‑168/98 Luxembourg  v Parliament and Council  [2000] ECR I-9131, paragraph 64).
65. In that context, Article 3 of Directive 98/5 provides that a lawyer who wishes to practise in a Member State other than that in which he obtained his professional qualification must register with the competent authority in that State, which must register him ‘upon presentation of a certificate attesting to his registration with the competent authority in the home Member State’.
66. Given the objective of Directive 98/5, set out in paragraph 64 of this judgment, it must be held, as the United Kingdom Government and the Commission rightly submitted, that in Article 3 of that directive the Community legislature carried out a complete harmonisation of the prior conditions for the exercise of the right it confers.
67. It is thus apparent that 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.
69. As the Court has already noted, the Community legislature, with a view to making it easier for a particular class of migrant lawyers to exercise the fundamental freedom of establishment, did not opt for a system of prior testing of the knowledge of the persons concerned (see Luxembourg  v Parliament and Council , paragraph 43).
71. As Mr Wilson, the United Kingdom Government and the Commission submitted, the exclusion of a system of prior testing of the knowledge, particularly of languages, for European lawyers is, however, accompanied in Directive 98/5 by a set of rules intended to ensure, to a level acceptable in the Community, the protection of consumers and the proper administration of justice (see Luxembourg  v Parliament and Council , paragraphs 32 and 33).
72. Thus, the purpose of the obligation imposed by Article 4 of Directive 98/5 on European lawyers to practise under their home-country professional title in the host Member State is, according to recital (9) in the preamble to that directive, to make clear the distinction between such lawyers and lawyers from the host Member State, so that clients are aware that the professional to whom they entrust the defence of their interests has not obtained his qualification in that Member State (see, to that effect, Luxembourg  v Parliament and Council , paragraph 34) and does not necessarily have the knowledge, in particular of languages, which is adequate to deal with the case.
74. Under Articles 6 and 7 of Directive 98/5, a European lawyer must comply not only with the rules of professional conduct applicable in his home Member State but also with those of the host Member State, failing which he will incur disciplinary sanctions and exposure to professional liability (see Luxembourg  v Parliament and Council , paragraphs 36 to 41). One of the rules of professional conduct applicable to lawyers is an obligation, like that provided for in the Code of Conduct adopted by the Council of the Bars and Law Societies of the European Union (CCBE), breach of which may lead to disciplinary sanctions, not to handle matters which the professionals concerned know or ought to know they are not competent to handle, for instance owing to lack of linguistic knowledge (see, to that effect, Luxembourg v Parliament and Council , paragraph 42). Communication with clients, the administrative authorities and the professional bodies of the host Member State, like compliance with the rules of professional conduct laid down by the authorities of that Member State, requires a European lawyer to have sufficient linguistic knowledge or recourse to assistance where that knowledge is insufficient.