(Cases С-359/09, Ebert;С-118/09, Koller, С-565/08;Commission/ Italy)

Miglena Peneva [1]

 

In three consecutive judgments rendered in 2011, the Court of Justice of the European Union (CJEU) addressed a number of important questions concerning the right to practise as a lawyer in another Member State.

In Ebertthe CJEU had to interpret both 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 and 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. In its reply to the preliminary questions referred by a Hungarian court the CJEU came to the conclusion that the two directives lay down two different mechanisms for access to and the practice of the profession of a lawyer under the professional title used in the host Member State. However, the aforementioned two mechanisms do not exclude one another. Directives 89/48/EEC and 98/5/EC complement each other by establishing two means by which lawyers from Member States may gain admission to the bar in a host Member State under the professional title of that Member State. Directive 98/5/EC lays down a simplified procedure for access to the bar as it allows an exemption from the conditions set out in Article 4(1)(b) of Directive 89/48/EEC, if effective and regular practice for a period of at least three years in the host Member State can be shown. It is further stated that when it comes to a profession regulated by the State, neither Directive89/48/EEC, nor Directive 98/5/EC, could derogate the main sovereign assessment of the Member State with regards to the rules of admission to this profession. More specifically, if the host Member State prescribes as a condition for practising as a lawyer under the respective professional title the obligation for membership in an organization, such as the respective Member State’s Bar Association,EU rules do not overrule this specific requirement.

The subject matter of the Koller case, С-118/09, concerns similarly the access to the lawyer’s profession in another Member State, where the CJEU rendered a preliminary ruling on the basis of a reference from an Austrian jurisdiction. In its reasoning the CJEU acknowledged the right of a host Member State (as a part of its sovereign power) to set up the conditions to practise as a lawyer on its territory. Since the exercise of this profession requires a precise knowledge of national law and its essential and constant element is the provision of advice and/or assistance concerning national law, Article 3 of Directive 89/48/EEC does not prevent the host Member State from requiring (pursuant to Article 4(1)(b) of the latter), that the applicant – holder of “diploma” within the meaning of this term as specified in the Directive 89/48/EEC, takes an aptitude test or completes an adaptation period not exceeding three years, provided that that State first verifies whether the knowledge acquired by the applicant in the course of his professional experience is capable of covering, in whole or in part, the substantial difference in the requirements of therespective educational systems. As Advocate General V.Trstenjak pointed out her opinion, one should take into consideration the fact that the legal systems of the Member States are different, so the host Member State has the right, in conformity with EU Law, to require from the holder of the “diploma” precise knowledge of the law of the host Member State.

However, the discretion of the Member States to set up the conditions for access to the lawyer’s profession is limited by the relevant EU rules. As mentioned above, according to Directive 89/48/EEC, the host Member State may oblige the lawyer applying for access to this profession on its territory, to take an aptitude test or to complete an adaptation period not exceeding three years. However, it cannot oblige the applicant lawyer to meet the said two requirements at the same time. Also, the CJEU explianed that the host Member State cannot refuse to an applicant lawyer, holder of “diploma” within the meaning of Directive 89/48/EEC and being qualified to practise as a lawyer in another Member State,to take the aptitude test provided for in the Directive, on grounds that the lawyer has not met the requirements specified in the national legislation.

In Commission/ Italy, C-565/08, the CJEU rejected the infringement action brought by the European Commission against the Italian Republic, which questioned the compatibility of the Italian legislation providing for maximum fees for lawyers’ remuneration for court and out-of-court counsel. The Commission claimed that by imposing an obligation to comply with compulsory tariffs,Italy has breachedthe freedom of establishment (art. 43 EC) and the freedom to provide services (art. 49 EC).The Commission took the view that the Italian provisions were incompatible with Articles 43 EC and 49 EC, because, on the one hand, they were preventing lawyers from other Member States, applying higher rates for their services, to run their businesses in Italy, and on the other hand, national legislation made less attractive the Italian legal market. In its judgment the CJEU followed the opinion of Advocate Generale J. Mazak, and ruled that the questioned national legislation does not limit the aformentioned freedoms because the maximal rates do not override the contractual freedom of the parties to negotiate even higher rates for lawyer’s services. Furthermore, the CJEU explained that lawyers established in other Member States should observe the applicable regulations in the host Member State with respect to the way of specifying the remunerations for the services. The legislation of a Member State should not be considered setting “limitations” only because other Member States apply rules, which are less strict or are economically morefavorable. However, a “limitation” of the freedom of establishment and/or the freedom to provide services would exist if lawyers from other Member States are deprived of the possibility to enter the market of the host Member State under normal and effective conditions of competition. The Court came to the conclusion that the Commission has not, however, demonstrated that the contested national provisions had such an effect.

It is interesting to note that Commission/ Italy is the third time when the CJEU examined the compatibility with EU law of the Italian legislation concerning the fees applicable to lawyers. In Arduino, C-35/99, the Court examined the minimum and maximum limits of the fees applicable to the services provided by lawyers in the light of Articles 10 EC and 81 EC in order to determine whether that tariff constituted a State measure or a decision taken by a private economic operator. On that occasion,the CJEU found that the aforementioned articles of the EC Treaty do not preclude a Member State from adopting a law or a regulation which approves, on the basis of a draft produced by a professional body of lawyers, a scale fixing minimum and maximum fees for members of the profession. In Cipolla, C-94/04 and C-202/04, the CJEUexamined whether the Italian lawyers’ fees tariff meet the requirements of EU competition law. In that case, the CJEUfound that national legislation containing an absolute prohibition for derogation, by agreement, from the minimum fees set by a scale of lawyers’ fees, constitutes a restriction to the freedom to provide services laid down in Article 49 EC. It is for the national court to determine whether such legislation, in the light of the detailed rules for its application, actually serves the objectives of protection of consumers and the proper administration of justice which may justify it and whether the restrictions it imposes do not appear disproportionate in the lightof thoseobjectives.

 

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Линк към статията на български език: НАЙ-НОВА ПРАКТИКА НА СЪДА НА ЕВРОПЕЙСКИЯ СЪЮЗ ПО ВЪПРОСИТЕ НА АДВОКАТСКАТА ПРОФЕСИЯ

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[1] Partner at Gerogiev, Todorov and Co.