Krzysztof Peśla v Justizministerium Mecklenburg-Vorpommern.
Date: 2009-12-10
23. Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ 1998 L 77, p. 36) concerns only lawyers who are fully qualified as such in their Member States of origin (see Morgenbesser , paragraph 45). In addition, it is apparent from the documents before the Court that the activities undertaken by legal trainees are regarded as forming the practical part of the training required to enter the legal professions in Germany. It follows that such a legal traineeship cannot be classed as a ‘regulated profession’, within the meaning of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16), as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 (OJ 2001 L 206, p. 1), separable from the German legal professions themselves, such as the profession of lawyer (see, by analogy, Morgenbesser , paragraphs 46 to 55).
26. First, it is apparent from the documents before the Court, in particular from the observations of the German Government, that (i) legal trainees are required to apply in practice the legal knowledge acquired during their studies and thus make a contribution, under the guidance of the training principal, to that person’s activities and (ii) legal trainees receive payment in the form of a monthly subsistence allowance for the duration of their training. In that regard, the Court has already held that, given that legal trainees carry out genuine and effective activity as an employed person they must be considered to be workers within the meaning of Article 39 EC (see, to that effect, Case C‑109/04 Kranemann  [2005] ECR I‑2421, paragraphs 12 to 18).
27. Second, the legal traineeship provided for under the German regulations constitutes a period of training and a necessary prerequisite of access to, inter alia, the profession of lawyer in Germany, a regulated profession to which Article 43 EC applies (see, by analogy, Morgenbesser , paragraph 60).
29. In the first place, in so far as legal trainees undertake part of their training outside the public sector, suffice it to note that the concept of ‘employment in the public service’ does not encompass employment by a private natural or legal person, whatever the duties of the employee (see Case C‑114/97 Commission  v Spain  [1998] ECR I‑6717, paragraph 33, and Kranemann , paragraph 19).
31. Consequently, the activity of a legal trainee cannot fall within the exception laid down in Article 39(4) EC since that exception does not cover posts which, whilst coming under the State or other bodies governed by public law, still do not involve any association with tasks belonging to the public service properly so called (see, inter alia, Case 149/79 Commission v Belgium  [1980] ECR 3881, paragraph 11, and Case C‑47/02 Anker  [2003] ECR I‑10447, paragraph 59).
32. Secondly, the derogation provided for in the first paragraph of Article 45 EC must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority (see, inter alia, Case 2/74 Reyners  [1974] ECR 631, paragraph 45; Case C‑42/92 Thijssen  [1993] ECR I‑4047, paragraph 8; and Case C‑283/99 Commission  v Italy  [2001] ECR I-4363, paragraph 20).
33. Therefore, for reasons analogous to those set out in paragraph 30 above, the activities of a legal trainee, even when carried out in the public sector, do not fall within the scope of the exception provided for in the first paragraph of Article 45 EC (see also, by analogy, Thijssen , paragraphs 22 and 23).
34. It should furthermore be noted that, in the absence of harmonisation of the conditions of access to a particular occupation, the Member States are entitled to lay down the knowledge and qualifications needed in order to pursue it and to require the production of a diploma certifying that the holder has the relevant knowledge and qualifications (see Case 222/86 Heylens and Others  [1987] ECR 4097, paragraph 10; Case C‑340/89 Vlassopoulou [1991] ECR I‑2357, paragraph 9; and Case C‑104/91 Aguirre Borrell and Others  [1992] ECR I‑3003, paragraph 7).
35. However, Community law sets limits on the exercise of those powers by the Member States in so far as provisions of national law adopted in that connection must not constitute an unjustified obstacle to the effective exercise of the fundamental freedoms guaranteed by Articles 39 EC and 43 EC (see Heylens and Others , paragraph 11, and Case C‑19/92 Kraus  [1993] ECR I‑1663, paragraphs 28 and 32).
36. In that regard, it is apparent from the Court’s case-law that the national rules establishing the conditions for national qualifications, even when applied in an indiscriminate manner in relation to nationality, may infringe the exercise of those fundamental freedoms if the national rules at issue fail to take account of learning, skills and qualifications already acquired by the person concerned in another Member State (see, to that effect, Vlassopolou , paragraph 15; Kraus , paragraph 32; Case C‑375/92 Commission  v Spain  [1994] ECR I‑923, paragraph 18; and Morgenbesser , paragraphs 61 and 62).
37. Accordingly, the authorities of a Member State, when considering a request by a national of another Member State for access to a practical training period with a view to exercising a regulated profession at a later date, must take into consideration the professional qualification of the person concerned by comparing the qualifications attested by his diplomas, certificates and other formal qualifications as well as by his relevant professional experience with the professional requirements laid down by the national rules (see to that effect, inter alia, Vlassopoulou , paragraph 16, and Morgenbesser , paragraphs 57 and 58).
38. That case-law is the expression of a principle which is inherent in the fundamental freedoms of the EC Treaty (see, to that effect, Case C‑238/98 Hocsman  [2000] ECR I‑6623, paragraph 24, and Case C‑31/00 Dreessen  [2002] ECR I‑663, paragraph 25). Thus, as is apparent from paragraph 61 of the judgment in Morgenbesser , the analysis does not differ according to whether it is the freedom of movement for workers or the freedom of establishment which is relied upon in opposing the refusal, as in the case in the main proceedings, to admit a candidate of a Member State other than the Federal Republic of Germany to serve as a legal trainee without first taking an aptitude test in the legal subjects that are compulsory under the first State examination.
39. As the Court has repeatedly held, the comparative examination procedure referred to in paragraph 37 above 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 attested 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, by virtue of that diploma, to possess, having regard to the nature and duration of the studies and practical training to which the diploma relates (see Heylens and Others , paragraph 13; Vlassopoulou , paragraph 17; Aguirre Borrell and Others , paragraph 12; Case C-375/92 Commission  v Spain , paragraph 13; and Morgenbesser , paragraph 68).
40. If that comparative examination of diplomas results in the finding that the knowledge and qualifications attested 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 attested 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 (see Vlassopoulou , paragraph 19; Aguirre Borrell and Others , paragraph 14; Case C‑234/97 Fernández de Bobadilla  [1999] ECR I‑4773, paragraph 32; Morgenbesser , paragraph 70; and Case C‑255/01 Markopoulos and Others  [2004] ECR I‑9077, paragraphs 64 and 65).
41. In that regard, it is for the competent national authorities to assess whether the knowledge acquired in the host Member State, either during a course of study or by way of practical experience, is sufficient in order to prove possession of the knowledge which is lacking ( Vlassopoulou , paragraph 20; Fernández de Bobadilla , paragraph 33; and Morgenbesser , paragraph 71).
42. On the basis of the case-law set out in the three preceding paragraphs and, in particular, paragraph 68 and the first sentence of paragraph 70 of the judgment in Morgenbesser , Mr Peśla claims that, in order to apply a national provision such as Paragraph 112a(1) and (2) of the DRiG in a manner consistent with Community law, account must be taken primarily of the knowledge and qualifications which have been acquired in the Member State of origin, in this case the Republic of Poland and, where appropriate, of the legal knowledge and qualifications acquired in the host Member State, in this case the Federal Republic of Germany, only in the alternative. He considers that, if one takes the knowledge of, and practical skills in, German law as the criterion for the comparison to be made, a foreign diploma could never satisfy such criteria because German law is not generally taught in the other Member States. Thus, in his view, the freedom of movement would in practice be ruled out for young lawyers who have obtained qualifications in a Member State other than the Federal Republic of Germany.
44. According to that case-law, in the course of the comparative examination set out in paragraphs 37 and 39 to 41 above, a Member State may 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 (see Vlassopoulou , paragraph 18, and Morgenbesser , paragraph 69).
45. As is apparent from the case-law cited in paragraph 37 of this judgment, and contrary to what Mr Peśla claims, it is in relation to the professional qualification required by the rules of the host Member State that the knowledge attested by the diploma granted in another Member State and the qualifications and/or work experience obtained in other Member States, together with the experience obtained in the Member State in which the candidate seeks enrolment, must be examined (see also, to that effect, Aguirre Borrell and Others , paragraph 11; Case C‑164/94 Aranitis  [1996] ECR I‑135, paragraph 31; Dreessen , paragraph 24; and Morgenbesser , paragraph 67).
51. In the case-law referred to in paragraphs 34 to 41, 44 and 45 of this judgment, the Court recognised the need to reconcile the requirement relating to the qualifications necessary in order to pursue a particular occupation with the requirement that the fundamental freedoms guaranteed by Articles 39 and 43 EC be capable of being exercised effectively (see to that effect, in particular, Heylens and Others , paragraph 13).
52. Thus, it is apparent from that case-law that the examination of equivalence referred to in paragraph 39 of this judgment must be carried out in the light of the academic and professional training as a whole which the person concerned is able to demonstrate, in order to assess whether that overall assessment may be regarded as satisfying, even in part, the conditions required for access to the activity concerned (see to that effect, inter alia, Morgenbesser , paragraphs 66 and 67). If that comparative examination reveals that that demonstrable training satisfies those conditions only in part, the host Member State is entitled, as is apparent from paragraph 40 of this judgment, to require the person concerned to demonstrate that he has acquired the knowledge and qualifications which are lacking.
53. The fact that a host Member State must thus take account of knowledge which corresponds only in part to that attested by the professional qualification required by the national rules of that Member State, without requiring that examinations be passed before such a qualification is granted, already contributes to facilitating the freedom of movement of persons as laid down in particular in Article 39 EC. If such an obligation did not exist, the fact of not having the diploma normally required by nationals of the host Member State could of itself constitute a decisive obstacle to access to the legal professions in that Member State (see, to that effect, Morgenbesser , paragraphs 64 to 67).