C-71/76

taking account of the requirements of obtained a diploma in his country of Community law in relation to origin which has been recognized as freedom of establishment, to make an equivalent qualification by the such assessments of the facts as will competent authority under the enable them to judge whether a legislation of the country of recognition granted by a university establishment and which has thus authority can, in addition to its enabled him to sit and pass the academic effect, constitute valid special qualifying examination for the evidence of a professional profession in question, the act of qualification. The fact that a national demanding the national diploma legislation provides for recognition of prescribed by the legislation of the equivalence only for university country of establishment constitutes, purposes does not of itself justify the even in the absence of the directives refusal to recognize such equivalence provided for in Article 57, a restriction as evidence of a professional incompatible with the freedom of qualification. This is particularly so establishment guaranteed by Article when a diploma recognized for 52 of the Treaty.

In Case 71/76,

Reference to the Court under Article 177 of the EEC Treaty by the Cour d'Appel of Paris, for a preliminary ruling in the action pending before that court between

JEAN THIEFFRY, Doctor of Laws, Advocate, resident in Paris, and

CONSEIL DE L'ORDRE DES AVOCATS À LA COUR DE PARIS (The Paris Bar Council), on the interpretation of the provisions of the EEC Treaty on the right of establishment, in relation to certain legal conditions for admission to the profession of Advocate,

The facts, the procedure, and the licentiate's degree or a doctor's degree in observations submitted under Article 20 French law, as required by Article 11 (2) of the Protocol on the Statute of the of Law No 71-1130 of 31 December Court of Justice of the EEC may be 1971, reforming certain legal and judicial summarized as follows: professions (Journal Officiel de la République Française of 5. 1. 1972, p. 131). I — Facts and written procedure On 19 March 1976, Mr Thieffry appealed Of Belgian nationality, Jean Thieffry against this decision before the Cour obtained a doctorate in Belgian law at d'Appel, Paris. the University of Louvain on 23 July 1955. By a judgment given in chambers on 13 From 1956 to 1969, he practised as an July 1976, the Cour d'Appel, composed of the first three Chambers, decided, Advocate ('avocat') at the Brussels Bar. After a period in London, during which pursuant to Article 177 of the EEC he assisted a Barrister, he established Treaty, to stay the proceedings until the himself in Paris, where he is Court of Justice had given a preliminary collaborating in the chambers of an ruling on the following question: Advocate of the Paris Bar and teaching When a national of one Member State law. desirous of exercising the profession of On 5 December 1974, Mr Thieffry Advocate in another Member State has obtained from the University of Paris 1 obtained a diploma in his country of — Pantheon Sorbonne — recognition of origin which has been recognized as an the diploma for his doctorate in Belgian equivalent qualification by the University law as a qualification equivalent to a authority of the country of establishment licentiate's degree in French law. and which has enabled him to sit in the latter country the Advocate's professional On 18 November 1975 he obtained the qualifying examinations — which he has Certificat d'Aptitude à la Profession passed — does the act of demanding the d'Avocat (CAPA) (qualifying certificate national diploma prescribed by the law for the profession of Advocate ) from the of the country of establishment Institut d'Études Judiciaires of the constitute, in the absence of the University of Paris 2. directives provided for in Article 57 (1) and (2) of the EEC Treaty, an obstacle to Mr Thieffry then applied to take the oath the attainment of the objective of the with a view to his registering for the Community provisions in question? period of practical training at the Ordre des Avocats à la Cour de Paris (Paris Bar). The judgment of the Cour d'Appel, Paris, was entered at the Registry of the Court By an order of the Conseil de l'Ordre of Justice on 19 July 1976. (the Bar Council) of 9 March 1976 his application was rejected on the ground In accordance with Article 20 of the that he offered no diploma evidencing a Protocol on the Statute of the Court of

II — Written observations sub­ protectionism one of the most frequent mitted to the Court is discrimination based on nationality. The discrimination in question in the Jean Thieffry, the appellant in the main main action pertains to this criterion: it is discrimination exercised in relation to action, takes the view that the decision of the Conseil de l'Ordre des Avocats au the nationality of diplomas. Such Barreau de Paris (Paris Bar Council) goes considerations go against the against the fundamental principles which fundamental objectives of the EEC follow from the application of the EEC Treaty. The aim of this Treaty is to bring Treaty and against the purport of the into being a single market, within which, judgment given by the Court of Justice among other things, persons may move on 21 June 1974 in Case 2/74 (Jean freely and all obstacles to their establishment must be abolished without Reyners v the Belgian State; reference by the Conseil d'État, Belgium, for a any distinction on grounds of nationality. preliminary ruling; [1974] ECR 631). Such is, in particular, the object of Article 52 of the Treaty. (a) The solution of the problem submitted to the Court of Justice rests on It emerges from the judgment of the a certain number of fundamental Court in the Reyners case that since the principles defined by the Court which end of the transitional period that govern the application of Community provision has been directly applicable, law, in particular those of the autonomy, notwithstanding the absence of the the direct effect and the supremacy of directives prescribed by the Treaty. Community law. In so far as the French Establishment is the rule, the Law goes against these principles, it is harmonization measures, in particular inapplicable; any Law which is contrary those relating to diplomas, referred to in to Community law is applicable only Article 57 (1), an exception. Accordingly, within the limits set by the Community discrimination based on the criterion of rules, which prevail over the national nationality must be rejected, whether it is rules. applied to the person himself or whether

it takes the form of a national law analysis of the French provision and the demanding a national diploma, and application thereof. whenever a solution can be found to the problem raised by the absence of mutual (d) Article 52 imposes an obligation to recognition of diplomas, that solution attain a particular result, an obligation must be adopted if it answers to the which goes beyond merely equal national and Community objectives in national treatment for nationals of a question. Member State other than that in which establishment is to take place.

Treaty. At all events, when the candidate satisfies all the other requirements for Doubtless that Law is not open to admission to the profession of Advocate criticism on the grounds that it provides and when he has a qualification that a national of a Member State who equivalent to the required national wishes to practise as an Advocate in diploma, to insist on that diploma alone France must have educational is more restrictive than is necessary to qualifications corresponding to the attain the objectives of the national and licentiate's degree in French Law. A Community provisions in question. directive on the equivalence of diplomas would be apt to resolve this problem (e) Therefore the question referred to more simply; but the Reyners judgment the Court of Justice should be answered establishes that such a directive is not in the following terms: indispensable. When a national of one Member State The decisive point is that the check desirous of exercising the profession of carried out by the French university Advocate in another Member State has before recognizing the doctor's degree in obtained a diploma in his country of Belgian Law as qualification equivalent origin which has been recognized as an to the licentiate's degree in French Law equivalent qualification by the university enabled a full comparison of knowledge authority of the country of establishment to be made, therefore the requirement of and which has enabled him to sit in the the French Law in this respect is latter country the Advocate's professional satisfied. qualifying examinations — which he has passed — the act of demanding the Since all the other requirements are national diploma prescribed by the law satisfied, the absence of a licentiate's of the country of establishment degree in French Law cannot constitute constitutes, in the absence of the an obstacle to acceptance for the period directives provided for in Article 57 (1) of practical training, since the appellant and (2) of the Treaty of Rome, an in the main action has proved that he obstacle to the attainment of the has knowledge corresponding to that objective of the Community provisions

JUDGMENT OF 28. 4. 1977 - CASE 71/76

(a) The argument based on the distinction between two functions which recognition of a diploma conferred in the Community directives are designed another Member State as a qualification to accomplish: equivalent to the national diploma is — negative function, consisting of the irrelevant for the purposes of answering elimination of obstacles to attaining the question referred for a preliminary freedom of establishment; these ruling. In fact, a distinction should be obstacles were to be removed during drawn between those decisions of the transitional period and directives university authorities which have civil of this kind became superfluous on effects and those which have academic the expiry of the said period, since effects. The former confer rights upon Article 52 applied from that time their recipients which can be enforced with direct effect; even outside the university, the latter — positive function, consisting of the confer rights only in respect of the introduction into the laws of the university institution. The recognitions of Member States of provisions intended diplomas in question in this case belong to facilitate the effective enjoyment of to the latter category. Those recognitions freedom of establishment; the expiry give the right to follow studies from one of the transitional period is without university to another, but do not involve effect on the accomplishing of this any civil effect, in particular the right to second function, and the attaining of practise a profession. the said freedom remains conditional

THIEFFRY v CONSEIL DE L'ORDRE DES AVOCATS À LA COUR DE PARIS

one Member State to another. Member State to another, both as regards the syllabus and the length of the course. (c) As to the idea of the balance between retaining the requirement of a If Article 52 of the EEC Treaty were to national diploma and pursuing the be applicable notwithstanding the Community objectives in question, it absence of directives, most of the should be pointed out that normally the activities affected by the right of requirement of a national diploma does establishment would be liable to be not appear to constitute an obstacle to disorganized thereby.

inappropriate. Starting from a case as special as that of the appellant in the main action, the (a) In the United Kingdom, access to Court cannot lay down a decision having the legal professions is governed by the general applicability to the whole of such professions themselves, according to a complex subject. particular procedures. Moreover, the legal order of the United Kingdom differs (d) At all events, the Court should not considerably from that of most of the modify the case-law established in the Member States, so that, with certain Reyners case by a judgment of principle exceptions, a diploma conferred by a which can be generalized to the whole of continental university does not provide a the subject. solid basis for admission to any legal

the reflection. Generally speaking, for the level of knowledge which they most of the professions affected by the sanction. Such equivalence can be

attained by directives aimed at directives under Article 57. The purpose coordinating conditions of training and of such directives is to lay down ensuring that these correspond to a large measures 'intended to assist the effective extent. In the absence of such directives exercise of the right of establishment. recognition of foreign diplomas with a Therefore the role of such directives is view to exercising a right of only subsidiary, even if that role may be establishment or of freedom to provide indispensable in certain circumstances. services under the Treaty cannot be demanded — except in so far as it is The only purpose of mutual recognition already expressly authorized by national of diplomas is to remove the obstacle legislation. In that case, any deriving from the legitimate concern of a discrimination on the basis of nationality, Member State to restrict access to certain be it the nationality of the holder of the professions to persons giving proof of diploma or the nationality of the specific professional qualifications, university, would obviously be confirmed by diploma, by means of incompatible with the provisions of the assuring that Member State that the Treaty. professional qualifications acquired in another Member State are equivalent. If The Commission of the European that result was obtained by other means, Communities points out that the in particular by national measures, a question raised in this case which was directive would not be necessary to not dealt with by the Court's decision in ensure the effective exercise of the right the Reyners case consists of determining of establishment. more precisely what is the nature of the 'restrictions' on the freedom of If a person having the right of establishment which are prohibited by establishment proves by means of Article 52 of the EEC Treaty; in documents issued in the host country by particular, is such a restriction institutions authorized to do so that he constituted by a legislative obstacle to has received legal education abroad recognizing that a foreign diploma, equivalent to that sanctioned by the recognized in the host country as an licentiate's degree in the host country, equivalent qualification, has civil effect, and that on the basis of that equivalence giving access to a specific profession? he has been allowed to sit and has passed an examination preparing specially for (a) It follows from the spirit and the the profession of Advocate, then any system of the Treaty, and more directive on mutual recognition under particularly from the provisions of the Article 57 (1) is superfluous and cannot chapter on freedom of establishment, be a prerequisite for the exercise of his that such a rule does constitute a right of establishment. restriction which falls under Article 52 and that therefore it cannot be applied In these circumstances, the formal against a national of another Member requirement of a diploma issued by an State. educational institution of the host

principle of equal treatment with Since the right of establishment is an nationals, that a French national holding individual right, it is incumbent upon a foreign diploma recognized as an the court making the reference to equivalent qualification in the same examine each particular situation. In the circumstances as the diploma of the present case, everything indicates that the appellant in the main action could not appellant in the main action has a be admitted to a French Bar, that knowledge of French law which makes therefore there is no prohibited him perfectly qualified to practise the discrimination and that, on the contrary, profession of Advocate in France.

For the mutual recognition under Article 57 (1) application of Article 57 (1), the Council of the Treaty. has confirmed the view propounding the objective nature of the recognition of The distinction between the academic diplomas. Freedom of establishment, in equivalence of diplomas and their civil particular for holders of diplomas obtained in other countries of the effect in relation to taking up a specific profession is also irrelevant. According to Community, must be ensured on the same terms for nationals of other the Decree of 15 February 1921 on Member States and for nationals of the qualifications equivalent to the level of licentiate with a view to the doctorate the Member State in question. recognition of a qualification as In any case, discriminations on the basis equivalent to the licentiate's degree in of nationality are not only overt law is granted only with a view to the discriminations, but can also be disguised doctorate and cannot confer any right to discriminations. It follows both from the the licentiate's diploma.

meaning of Article 52 of the Treaty. The required of their own nationals. For the requirement of a French diploma is in purpose of protecting that interest, it is fact a condition which impedes almost of little importance whether or not that exclusively, and at all events mainly, knowledge and those qualifications are nationals of the other Member States. recognized in national law to have a

JUDGMENT OF 28. 4. 1977 - CASE 71/76

Decision

1 By order of 13 July 1976, lodged at the Court Registry on 19 July 1976, the Cour d'Appel, Paris, put to the Court, under Article 177 of the EEC Treaty, a question concerning the interpretation of Article 57 of the Treaty, which relates to the mutual recognition of evidence of professional qualifications for the purposes of access to activities as self-employed persons, with regard in particular, to admission to exercise the profession of advocate.

THIEFFRY v CONSEIL DE L'ORDRE DES AVOCATS À LA COUR DE PARIS

2 The case before the Cour d'Appel concerns the admission to the Ordre des Avocats auprès de la Cour de Paris (the Paris Bar) of a Belgian advocate, who is the holder of a Belgian diploma of Doctor of Laws which has been recognized by a French university as equivalent to the French licenciate's degree in law, and who subsequently obtained the 'Certificat d'Aptitude à la Profession d'Avocat' (qualifying certificate for the profession of advocate), having sat and passed that examination, in accordance with French legislation.

3 The appellant in the main action applied for admission to the Paris Bar, but by an order of 9 March 1976 the Conseil de l'Ordre (Bar Council) rejected his application on the ground that the person concerned 'offers no French diploma evidencing a licentiate's degree or a doctor's degree'.

4 It appears from the wording of that decision that the application for admission was refused solely by reason of the fact that, although the person concerned had obtained university recognition of the equivalence of his basic diploma and furthermore had acquired the Certificat d'Aptitude à la Profession d'Avocat, that was not enough for him to be treated in the same way as a holder of the diploma of the licentiate's degree or doctor's degree within the meaning of French legislation.

8 With a view to attaining this objective, the first paragraph of Article 52 provides that restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be abolished by progressive stages in the course of the transitional period.

9 Under the second paragraph of the same article, freedom of establishment includes the right to take up activities as self-employed persons, under the conditions laid down for its own nationals by the law of the country where such establishment is effected.

10 Article 53 emphasizes the irreversible nature of the liberalization achieved in this regard at any given time, by providing that Member States shall not introduce any new restrictions on the right of establishment in their territories of nationals of other Member States.

11 With a view to making it easier for persons to take up and pursue activities as self-employed persons, Article 57 assigns to the Council the duty of issuing directives concerning, first, the mutual recognition of diplomas, and secondly, the coordination of the provisions laid down by law or administrative action in Member States concerning the taking up and pursuit of activities as self-employed persons.

12 That article is therefore directed towards reconciling freedom of establishment with the application of national professional rules justified by the general good, in particular rules relating to organization, qualifications, professional ethics, supervision and liability, provided that such application is effected without discrimination.

17 Consequently, if the freedom of establishment provided for by Article 52 can be ensured in a Member State either under the provisions of the laws and regulations in force, or by virtue of the practices of the public service or of professional bodies, a person subject to Community law cannot be denied the practical benefit of that freedom solely by virtue of the fact that, for a particular profession, the directives provided for by Article 57 of the Treaty have not yet been adopted.

18 Since the practical enjoyment of freedom of establishment can thus in certain circumstances depend upon national practice or legislation, it is incumbent

JUDGMENT OF 28. 4. 1977 - CASE 71/76

upon the competent public authorities — including legally recognized professional bodies — to ensure that such practice or legislation is applied in accordance with the objective defined by the provisions of the Treaty relating to freedom of establishment.

19 In particular, there is an unjustified restriction on that freedom where, in a Member State, admission to a particular profession is refused to a person covered by the Treaty who holds a diploma which has been recognized as an equivalent qualification by the competent authority of the country of establishment and who furthermore has fulfilled the specific conditions regarding professional training in force in that country, solely by reason of the fact that the person concerned does not possess the national diploma corresponding to the diploma which he holds and which has been recognized as an equivalent qualification.

THIEFFRY v CONSEIL DE L'ORDRE DES AVOCATS À LA COUR DE PARIS

24 Consequently, it is for the competent national authorities, taking account of the requirements of Community law set out above, to make such assessments of the facts as will enable them to judge whether a recognition granted by a university authority can, in addition to its academic effect, constitute valid evidence of a professional qualification.

25 The fact that a national legislation provides for recognition of equivalence only for university purposes does not of itself justify the refusal to recognize such equivalence as evidence of a professional qualification.

26 This is particularly so when a diploma recognized for university purposes is supplemented by a professional qualifying certificate obtained according to the legislation of the country of establishment.

27 In these circumstances, the answer to the question referred to the Court should be that when a national of one Member State desirous of exercising a professional activity such as the profession of advocate in another Member State has obtained a diploma in his country of origin which has been recognized as an equivalent qualification by the competent authority under the legislation of the country of establishment and which has thus enabled him to sit and pass the special qualifying examination for the profession in question, the act of demanding the national diploma prescribed by the legislation of the country of establishment constitutes, even in the absence of the directives provided for in Article 57, a restriction incompatible with the freedom of establishment guaranteed by Article 52 of the Treaty.

in answer to the question referred to it by the Cour d'Appel, Paris, by a judgment delivered in chambers on 13 July 1976, hereby rules:

When a national of one Member State desirous of exercising a professional activity such as the profession of advocate in another Member State has obtained a diploma in his country of origin which has been recognized as an equivalent qualification by the competent authority under the legislation of the country of establishment and which has thus enabled him to sit and pass the special qualifying examination for the profession in question, the act of demanding the national diploma prescribed by the legislation of the country of establishment constitutes, even in the absence of the directives provided for in Article 57, a restriction incompatible with the freedom of establishment guaranteed by Article 52 of the Treaty.

Kutscher Donner Pescatore Mertens de Wilmars Sørensen

Mackenzie Stuart O'Keeffe Bosco Touffait

Delivered in open court in Luxembourg on 28 April 1977.

A. Van Houtte H. Kutscher