Commission of the European Communities v Grand Duchy of Luxemburg.
Date: 2006-09-19
34. 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 freedom of movement (see also, to that effect, Luxembourg v Parliament and Council , paragraph 64).
35. 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’.
36. Given the objective of Directive 98/5, set out in paragraph 34 of this judgment, it must be held that the Community legislature undertook, in Article 3, a complete harmonisation of the preliminary conditions required for the exercise of the right it confers.
37. 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 State under his home-country professional title.
39. 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).
41. As the Commission submits, 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).
44. 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 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 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.
59. As regards the risk of abuse mentioned by the Luxembourg Government, such factors cannot be relied on in order to confer legitimacy on the introduction or retention of national provisions which prejudice the principle laid down in Article 5(1) of Directive 98/5, the exceptions to which have been specified in the harmonised rules laid down by Article 5(2) and (3) (see, by way of analogy, Case C-59/01 Commission  v Italy [2003] ECR I-1759, paragraph 38).
60. It should be observed, moreover, that Directive 98/5 provides, inter alia, for a combination of the professional rules of conduct to be observed by the European lawyer, for compulsory professional liability insurance or membership of a professional guarantee fund, and for a disciplinary system involving the competent authorities of both the home Member State and the host State (see, to that effect, Luxembourg  v Parliament and Council , paragraph 43).