Judgment of the Court of Justice of the European Union in cases C-58/13 and C-59/13, Torresi

Veneta Gaydardzhieva

 

The present analysis discusses the application of Directive 98/5/EC 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 (Directive) regarding the opportunity for a citizen of the EU to practice as a lawyer under the home-country professional title.

The text reveals the main aspects of Judgment of the Court of the European Union (ECJ) in joined cases C-58/13 and C-59/13 – Torresi, which represents the latest of its case-law on that matter.

The judgment was hold within a preliminary reference procedure, requested by the National bar Council of Italy, asking for interpretation of art. 3 of the Directive and weather the latter was in compliance with the obligation of the EU legislator not to violate the national identity of the member states as it was prohibited by art.4, par. 2 TUE.

The fact that the requesting authority was not of a kind of a traditional judicial body, the judgment is valuable with the arguments that it evokes to conclude that the National Bar Council  (NBC) of Italy, has constituted such for the purpose of Article 267 TFEU and the Court has had jurisdiction to answer the questions referred to it.

Briefly, the main dispute regards two Italian citizens, registered in a Spain bar council, entitled to do so by their university diplomas obtained in Spain, applying to register as lawyers in Italy under the Spanish title “abogado”. Their demands for registration were practically rejected by the competent local Italian bar, because the latter did not give any decision upon them. Accordingly, the applicants sought from the National bar council a ruling on their  applications for registration.

According to the requesting authority the main source of conflict that posed the conduct of the two applicants, was that that in Spain, the only precondition to register in a Spanish bar as a lawyer, was having a relevant university diploma. In contrast,   the Italian requirements for accessing the lawyer profession, were more severe, including along with a relevant university diploma and a state exam. The choice that the claimants made, namely not to pass the prescribed state exam in Italy, although they had had already obtained an Italian university diploma as well but instead, to profit of the more favorable legislation of another member state such as Spain, obtaining a second university diploma and registering in a bar of that member state, suggested to an abuse of right. The Council’s doubts were fed by the fact that soon after their registration in Spain, the applicants applied for such in an Italian bar, even though as practitioners under the Spanish title “abogado”, in order to practice law profession in Italy.

In substance, the judgment interprets art. 3 of the Directive in the light of the possibility of committing an abuse of the EU law by citizens of a member state, such as those in the main proceedings, that avail themselves of the mechanisms the Directive offers.  Furthermore the Court gives the objective and the subjective elements that must be submitted by the member states while investigating an alike disputable conduct.

The Court judges on the compatibility of art. 3 of the Directive with art.4, par. 2 TEU, giving reasons why the interpreted rule does not violate the national identity of the Italian Republic by means of establishing rules that aim to facilitate the practice of lawyer profession under the title of one’s home-country.

In the light of the Court’s consideration the present work also debates upon the Bulgarian legal framework that settles the status of the European lawyers willing to practice their profession in Bulgaria on a permanent basis under the title of their home country. It touches also the main proceedings regarding the registration regime in the Bulgarian bar registers and discusses the question whether the Bulgarian Supreme bar council should be considered as a court or tribunal for the purposes of art. 267 TFUE within those proceedings and, consequently as competent to refer to the ECJ.

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Линк към статията на български език: ПРАВОТО НА ПОСТОЯННО УПРАЖНЯВАНЕ НА АДВОКАТСКА ПРОФЕСИЯ НА ТЕРИТОРИЯТА НА ЕС ПОД ЗВАНИЕТО ПО ПРОИЗХОД 

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