Grand Duchy of Luxemburg v European Parliament and Council of the European Union.
Date: 2000-11-07
23 In response to those arguments, it must be stated that the prohibition of discrimination laid down in Article 52 of the Treaty is only the specific expression of the general principle of equality which, as one of the fundamental principles of Community law, must be respected by the Community legislature and which requires that comparable situations should not be treated differently unless such difference in treatment is objectively justified (see, to this effect, Case C-280/93 Germany v Council [1994] ECR I-4973, paragraph 67, and Case C-27/95 Woodspring v Bakers of Nailsea [1997] ECR I-1847, paragraph 17).
32 In that regard, the Court observes that, in the absence of coordination at Community level, the Member States may, subject to certain conditions, impose national measures pursuing a legitimate aim compatible with the Treaty and justified on overriding public interest grounds, which include the protection of consumers. They may thus, in certain circumstances, adopt or maintain measures constituting a barrier to freedom of movement. Article 57(2) of the Treaty authorises the Community to eliminate obstacles of that kind in order to make it easier for persons to take up and pursue activities as self-employed persons. When adopting measures to that end, the Community legislature is to have regard to the public interest pursued by the various Member States and to adopt a level of protection for that interest which seems acceptable in the Community (see, to that effect, Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paragraphs 16 and 17). It enjoys a measure of discretion for the purposes of its assessment of the acceptable level of protection.
33 In this instance it is clear that several of the provisions of Directive 98/5 lay down rules intended to protect consumers and to ensure the proper administration of justice.
34 Thus, Article 4 provides that a lawyer practising under his home-country professional title is required to do so under that title, so that consumers are informed that the professional to whom they entrust the defence of their interests has not obtained his qualification in the host Member State and that his initial training did not necessarily cover the host Member State's national law.
36 Article 6(1) makes a lawyer practising under his home-country professional title subject not only to the rules of professional conduct applicable in his home Member State but also to the same rules of professional conduct as lawyers practising under the professional title of the host Member State in respect of all the activities which he pursues in its territory.
37 Article 6(3) authorises the host Member State to require a lawyer practising under his home-country professional title either to take out professional indemnity insurance or to become a member of a professional guarantee fund in accordance with the rules which that State lays down for professional activities pursued in its territory, unless he is covered by insurance taken out or a guarantee provided in accordance with the rules of his home Member State, without prejudice to the possibility of requiring additional insurance or an additional guarantee to be contracted where the equivalence is only partial.
38 Under Article 7(1), where a lawyer practising under his home-country professional title fails to fulfil the obligations in force in the host Member State, the rules of procedure, penalties and remedies provided for in that State are to apply.
39 Article 7(2) and (3) imposes, in disciplinary matters, obligations of reciprocal information and cooperation between the competent authority of the home Member State and that of the host Member State.
40 Article 7(4) further provides that the competent authority in the home Member State shall decide what action to take, under its own procedural and substantive rules, in the light of a decision of the competent authority in the host Member State concerning a lawyer practising under his home-country professional title.
41 Last, Article 7(5) provides that the temporary or permanent withdrawal by the competent authority in the home Member State of the authorisation to practise the profession shall automatically lead to the lawyer concerned being temporarily or permanently prohibited from practising under his home-country professional title in the host Member State.
42 Furthermore, it should be noted that, quite apart from the applicable rules of professional liability, the rules of professional conduct applicable to lawyers generally entail, like Article 3.1.3 of the Code of Professional Conduct adopted by the Council of the Bars and Law Societies of the European Union (CCBE), an obligation, breach of which may incur disciplinary sanctions, not to handle matters which the professionals concerned know or ought to know they are not competent to handle.
43 It would therefore seem that the Community legislature, with a view to making it easier for a particular class of migrant lawyers to exercise the fundamental freedom of establishment, has chosen, in preference to a system of a priori testing of qualification in the national law of the host Member State, a plan of action combining consumer information, restrictions on the extent to which or the detailed rules under which certain activities of the profession may be practised, a number of applicable rules of professional conduct, compulsory insurance, as well as a system of discipline involving both the competent authorities of the home Member State and the host State. The legislature has not abolished the requirement that the lawyer concerned should know the national law applicable in the cases he handles, but has simply released him from the obligation to prove that knowledge in advance. It has thus allowed, in some circumstances, gradual assimilation of knowledge through practice, that assimilation being made easier by experience of other laws gained in the home Member State. It was also able to take account of the dissuasive effect of the system of discipline and the rules of professional liability.
56 Thus it establishes a mechanism for the mutual recognition of the professional titles of migrant lawyers wishing to practise under their home-country professional title. This mechanism supplements that established by Directive 89/48, which, as regards lawyers, is intended to authorise the unrestricted practice of the profession under the professional title of the host Member State.
62 It should be observed that the Court has consistently held that the scope of the obligation to state reasons depends on the nature of the measure in question and that, in the case of measures of general application, the statement of reasons may be confined to indicating the general situation which led to its adoption, on the one hand, and the general objectives which it is intended to achieve, on the other. If the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made (see, inter alia, Case C-150/94 United Kingdom v Council [1998] ECR I-7235, paragraphs 25 and 26).
64 Directive 98/5 also contains a statement of the general objectives which it proposes to attain:
- fully qualified lawyers who do not become quickly integrated into the profession in the host Member State, inter alia by passing an aptitude test as provided for in Directive 89/48, should be able to achieve such integration after a certain period of professional practice in the host Member State under their home-country professional titles or else continue to practise under their home-country professional titles (third recital);
- action along these lines at Community level is intended, on the one hand, to provide lawyers with an easier means whereby they can integrate into the profession in a host Member State compared with the general recognition system and, on the other, to meet the needs of consumers of legal services carrying out cross-border transactions (fifth recital);
- it also seeks to resolve the problems linked to distortion of competition and obstacles to freedom of movement caused by great differences in the practical details attaching to the practice of the profession under the home-country professional title in the Member States which already permit such practice (sixth recital);
- Directive 98/5 seeks to ensure that consumers are properly informed by providing that lawyers who are not integrated into the profession in the host Member State are required to practise in that State under their home-country professional titles (ninth recital).
66 That obligation did not require it to give specific reasons for its decision, with a view to implementing its general objectives, to remove the requirement to prove prior qualification in the national law of the host Member State and to grant the corresponding right immediately to practise the profession in the area of that law. Nor was it required to give specific reasons for its decision, made for the same purpose, not to set any time-limit on the right to practise under the home-country professional title in the host Member State. Furthermore, the Community legislature is not required to set time-limits for a measure intended to make it easier to exercise freedom of establishment, in so far as that freedom by definition presupposes the possibility of stable and continuous participation in the economic life of the host Member State.