C-65/77

National of an ACP State Profession of Advocate Rule as to — — —

non-discrimination — Requirement of the nationality of the State concerned —

Permissibility — More favourable treatment reserved to the nationals of another

ACP State by virtue of an international agreement — Absence of discrimination (ACP-EEC Convention, Article 62)

Article 62 of the ACP-EEC Convention 62 for a Member State to reserve more

signed at Lomé on 28 February 1975 favourable treatment to the nationals of

reserved to their own nationals. reserved by the legislation of that State to its own nationals is concerned.

It is not contrary to the rule as to

non-discrimination laid down in Article

In Case 65/77

Reference to the Court under Article 177 of the EEC Treaty by the Cour

d'Appel, Douai, for a preliminary ruling in the proceedings commenced

the African, Caribbean and Pacific States of the one part and the European

Economic Community of the other part.

THE COURT

composed of: H. Kutscher, President, M. Sørensen and G. Bosco, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, P. Pescatore and

A. O'Keeffe, Judges,

Advocate-General: G. Reischl Registrar: A. Van Houtte

Conseil de l'Ordre des Avocats au

I — Facts and written procedure Barreau de Lille found that Mr Razanatsimba fulfilled the legal In June 1974, Jean Razanatsimba, a conditions him to seek enabling Madagascan national, graduated in law at admission to pupillage, except for the

the Faculté de Droit (Law Faculty) Lille; condition of nationality.

in November 1975, at the Faculté de Droit, Amiens, he took and passed the Article 11 of Law No 71.1130 of 31 examination for the Certificat d'Aptitude December 1971 reforming certain legal a la Profession d'Avocat (CAPA) and judicial professions (Journal Officiel

(qualifying certificate for the profession de la République Française of 5. 1. 1972, of Advocate). p. 131) provides:

RAZANATSIMBA

proceedings until the Court of Justice As regards the arrangements that may be had given a preliminary ruling on the applied in matters of establishment and following questions: provision of services, the ACP States on 1. Does Article 62 of the Lomé the one hand and the Member States on Convention of 28 February 1975 give the other shall treat nationals and a national of an ACP State, and in companies or firms of Member States particular a person of Madagascan and nationals and companies or firms of nationality, the right to establish the ACP States respectively on a himself in the territory of a Member non-discriminatory basis. However, if, for State, and in particular in French a given activity, an ACP State or a territory, without any condition as to Member State is unable to provide such nationality? treatment, the Member States or the ACP 2. Does the contained in the reservation States, as the case may be, shall not be abovementioned Article 62 allow a bound to accord such treatment for this Member State to require the activity to the nationals and companies nationality of such State or that of or firms of the State concerned. another Member State for the pursuit

of a specific activity, in the present Therefore, by its decision of 14 case the profession of Advocate? December 1976, the Conseil de l'Ordre du Barreau de Lille decided to request The judgment of the Cour d'Appel, the Court of Justice to give a preliminary Douai, was registered at the Registry of

ruling under Article 177 of the EEC the Court on 27 May 1977. Treaty on the interpretation of Article 62 of the Lomé Convention. By an order of 15 June 1977, the Court found that Case 3/77, concerning the The reference by the Conseil de l'Ordre reference by the Conseil de l'Ordre du for a preliminary ruling was registered at Barreau de Lille for a preliminary ruling, the Registry of the Court of Justice on had become devoid of purpose and 6 January 1977 under No 3/77. ordered it to be removed from the

Upon intention in hearing the report of the of the contracting parties, Judge-Rapporteur and the views of the particular the ACP States, in adopting Advocate General, the Court decided to that reservation was to give priority to

open the oral procedure without social advancement for their any ensuring preparatory inquiry. own nationals, in particular as regards

access to the Liberal professions.

II — Written observations sub­ (g) Therefore the Court should rule that

mitted to the Court Article 62 of the Lomé Convention is an

exception within the meaning of Article Jean Razanatsimba analyses Article 62 11 (1) of the Law of 31 December 1971 of the Lomé Convention as follows: certain legal and judicial reforming (a) That provision cannot be interpreted professions, and that it gives a national of

In matters of establishment, Article 62 of Moreover, the fact that the bilateral the Lomé Convention provides merely Franco-Madagascan agreements make no that non-discriminatory treatment shall provision for matters of establishment be applied; it does not impose an can be interpreted as expressing the obligation on the States to treat nationals intention dispensing with a separate of of the other party as their own nationals. agreement and implicitly referring to the

Lomé Convention in such matters.

The non-discrimination in question is Article 62 of the Lomé Convention concerned with the treatment applied to

constitutes a clear and complete nationals of different States up making provision, capable of producing direct one group of contracting parties by the

effects, in so far as it is a settled principle States making up the other group: the

that treaties take precedence over first sentence of Article 62 does not allow

which the authors of the Lomé agreements or have asked to renegotiate

Convention intended to give to provision them, so as to substitute the principle of

at issue: if it were otherwise, the word non-discriminatory treatment for that of 'respectively'

in the first sentence of treatment as nationals; other countries

Article 62 would be meaningless. (Congo, Mali) have made a point of

negotiating fresh establishment agree­

be unable to provide such providing that, in relations between the

non-discriminatory treatment for a given two countries, equal treatment with

activity; is also stipulates that, in such nationals should be applied; up to the

Madagascar case, the other party concerned shall, for present, relations between its part, not be bound to apply such and France concerning establishment are

treatment to the nationals of the State in not governed by any specific instrument. question. In working out, drafting and adopting That provision makes it where Article 62 of the Lomé Convention, the possible,

necessary, for a State not to equal various interested parties were guided by apply treatment, for certain occupations, to all concerns of this kind; and the article

Gabon), which are parties to the Lomé Justice has asserted that it has

JUDGMENT OF 24. 11. 1977 - CASE 65/77

jurisdiction to interpret international individuals a right which they can

agreements which 'are binding on'

the enforce in the courts. Therefore the

Community, whether they are Court has jurisdiction under Article 177

other: the advantages conferred upon the The Court's jurisdiction to give ACP States by the Community by far interpretations cannot exceed the limits of the Community legal order; outweigh the obligations undertaken by the ACP States towards the Community, consequently, that jurisdiction is and in certain particular areas the confined to assessing the legal effects

which provisions of international law concessions made by the Community have been granted without any quid pro binding on the Community may produce quo. This material imbalance between within that legal order. In this case, the the obligations of the parties does not questions referred to the Court bear affect the question of the direct effect of directly on the interpretation of a the provisions of the Convention. provision of international law binding on the Community: the ACP-EEC The fact that the Lomé Convention was Convention of Lomé was concluded by concluded by the Community by way of the Council in accordance with Articles a regulation is also not decisive: the 228 and 238 of the Treaty, as appears direct effect which a provision of from Council Regulation No 199/76; it international law binding on the was published, at the same time as that Community may produce within the regulation, in the Official Journal (L 25 Community legal order depends only on of 30. 1. 1976); in accordance with the actual nature of the obligation Article 87 (1), the Convention entered imposed upon the Community by that into force on 1 April 1976; it has not provision. been denounced pursuant to Article 92. The Convention comprises a whole set of

Article 62 is one of the few provisions of of establishment, different treatments on

the Convention which provide for the one hand to nationals and companies

entirely reciprocal implementation or firms of the ACP States, and on the

measures by both parties. other to their own nationals and

companies or firms or those of the

It imposes an obligation on the Member Member States. Article 62 does not

countries, whether members of the ACP the Member States an unconditional or not, to the nationals and obligation, enforceable in the courts; group companies or firms of the Member thus no question of its direct effect can States. arise.

Moreover, Article 62 of the Lomé At all events, even if the principle of Convention remains consistent with the non-discrimination laid down in Article provisions of the Yaoundé Conventions 62 were not subject to an express of 1963 and 1969 on the right of

reservation, the obligation which it establishment; those Conventions also imposed on the Member States could not confined themselves to laying down the give nationals of the ACP States a right principle, subject to a reservation of which they could effectively enforce in 'negative reciprocity', that the Associated the courts to establish themselves in a States should accord non-discriminatory Member State for the purpose of treatment to the nationals and companies

pursuing activities as self-employed or firms of the Member States, without persons there, in cases where the pursuit pre-determining in what such treatment of such activities is conditional upon consisted.

being of the nationality of that Member State or another Member State. In fact, (c) Therefore the questions referred by Article 62 merely provides that Member the Cour d'Appel, Douai, may be States must as a general rule treat answered as follows: nationals and companies or firms of the

different ACP States in the same way; it Article 62 of the Lomé Convention does does not forbid them to apply, in matters not of itself give nationals of ACP States

the said Article 62. practising the liberal professions, those

establishment conventions provide in principle for equal treatment with III — Oral procedure nationals. Judicial conventions have been

The Government of the French concluded by France with Togo (Judicial Convention of 10 July 1963) and with Republic, represented by Noel Museux, Mauritania (Judicial Convention of 19 Legal Adviser at the Direction des June 1961); the lastmentioned covered Affaires Juridiques (Legal Department) of only the provision of services. As far as the Ministère des Affaires Etrangères Madagascar in particular is concerned, (Ministry of Foreign Affairs), and the the Franco-Madagascan Establishment Commission, represented by its Legal Convention of 27 June 1960 has been Adviser, Jean Groux, presented oral abrogated and replaced by a Judicial argument and answered questions asked Convention, dated 4 June 1973, covering by the Court at the hearing on 18 the provision of services. October 1977. only

With regard to the conventions The Advocate-General delivered his concluded between France and several opinion at the hearing on 9 November African States which are parties to the 1977.

Decision

1 By a judgment of 18 Mai 1977, which was received at the Court on 27 May 1977, the Cour d'Appel, Douai, referred two questions to the Court under

RAZANATSIMBA

Profession d'Avocat (qualifying certificate for the profession of Advocate) obtained in accordance with French law, applied to be admitted to pupillage at the Lille Bar.

3 After finding, without prejudice to the usual inquiry and verifications, that the applicant had the professional qualifications enabling him to seek admission, the Conseil de l'Ordre (Bar Council) reserved its position on the application of the condition as to nationality which is laid down in the following terms by Article 11 of Law No 71.1130 of 31 December 1971 reforming certain

legal and judicial professions (Journal Officiel de la Republique Française, 1972, p. 131): 'He must be French, and for this purpose account must be taken of international agreements'.

4 In that connexion the applicant sought to rely on Article 62 of the Lomé

Convention, and by a decision of 14 December 1976 the Conseil de l'Ordre, invoking Article 177 of the EEC Treaty, requested the Court of Justice to give a preliminary ruling on two questions identical in content to the questions

7 It also results from the aforementioned judgment that, by virtue of the

annulment of the decision of the Conseil de l'Ordre, the question of the

applicant's admission to pupillage has devolved in its entirety upon the Cour d'Appel.

8 The national court found that the settlement of the case before it required an

interpretation of Article 62 of the Lomé Convention, and referred for a

preliminary ruling two questions in the following terms:

Member State to require the nationality of such State or that of another

Member State for the pursuit of a specific activity, in the present case the Advocate?'

profession of

The first question

9 Under Article 62 of the Lomé Convention, 'as regards the arrangements that

may be applied in matters of establishment and provision of services, the

provisions of the EEC Treaty in matters of establishment, and seeks to rely upon the principles which form the basis of the judgment of the Court of 21

July 1974, Case 2/74, Reyners v Belgian State [1974] ECR 631.

11 However, the wording of Article 62 will not admit of such an interpretation.

12 In fact, that wording refers to the two groups of States bound by the Lomé

Convention, the ACP States and the Member States of the EEC, and provides that any Statebelonging to one of the two groups shall treat nationals of any State belonging to the other group on a non-discriminatory basis.

13 On the other hand, the wording of the article does not purport to provide equality of treatment between nationals of an ACP State and those of a Member State of the EEC.

invoke the particular advantages accorded in matters of establishment by a Member State to other ACP States.

16 Indeed, it emerges from the information supplied by the French Government, at the request of the Court, that the French Republic has concluded with a

small number of ACP States establishment conventions or judicial

conventions based on reciprocal application of national treatment.

17 It was further stated that a judicial convention based on the principle of

national treatment in matters of establishment of Advocates hitherto existed

19 In order to answer this question, it suffices to find that it is not contrary to

the rule as to non-discrimination laid down in Article 62 for a Member State to reserve more favourable treatment to the nationals of one ACP-State, provided that such treatment results from the provisions of an international

agreement reciprocal rights and advantages. comprising

20 Therefore the answer to the first question should be that Article 62 of the

Lomé Convention does not give a national of an ACP State the right to

JUDGMENT OF 24. 11. 1977 - CASE 65/77

Convention, would be necessary only if the effect of the interpretation of the first sentence of the said article had been to give national treatment to the

nationals of ACP States, in regard to profession at issue.

22 In the event, such is not the case, and accordingly there is no need to answer

the second question.

Costs

23 The costs incurred by the Government of the French Republic and the

THE COURT

in answer to the questions referred to it by the Cour d'Appel, Douai, by judgment of 18 Mai 1977, hereby rules:

Article 62 of the ACP-EEC Convention signed at Lomé on 28

February 1975 between the African, Caribbean and Pacific States

of the one part and the European Economic Community of the other part does not give a national of an ACP State the right to

establish himself in the territory of a Member State of the EEC

A. Van Houtte H. Kutscher

Registrar President

OPINION OF MR ADVOCATE-GENERAL REISCHL DELIVERED ON 9 NOVEMBER 1977 <apnote>1</apnote>

Mr President, cases). It is administered by a Conseil de Members of the Court, l'Ordre elected by all admitted advocates. Its task is inter alia to decide The exercise of the profession of applications for admission to pupillage

advocate is governed in France by a Law and applications for admission to the

of 31 December 1971 and the Bar. An appeal may be brought before implementing provisions issued the Combined Chambers of the Cour thereunder. The conditions laid down d'Appel (Court of Appeal) against its therein are inter alia the possession of decision. French nationality, in so far as