C-292/86

GULLUNG ν CONSEILS DE L'ORDRE DES AVOCATS DU BARREAU DE COLMAR ET DE SAVERNE

O P I N I O N OF M R ADVOCATE GENERAL D A R M O N * delivered on 18 N o v e m b e r 1987

Mr President, Gullung was registered as a Rechtsanwalt in Members of the Court, Offenburg on 22 August 1979 after having been refused registration as a Rechtsanwalt 1. The cour d'appel, Colmar, has referred in Freiburg. Subsequently he opened in two questions to the Court for a preliminary Mulhouse a 'little legal advice office', to use ruling. One question concerns the freedom the term employed by the cour d'appel, to provide services and the other concerns Colmar, where he used notepaper the the freedom of establishment of lawyers, heading of which included the words and they arose in the course of proceedings 'Cabinet d'avocat et de conseil' ('Avocat's the main features of which are as follows. and Legal Adviser's Chambers').

O P I N I O N OF MR DARMON — CASE 292/86

and who has been admitted to the legal must not be purely internal to a Member profession in one of those two Member State still applies. In that regard, if, as in States to rely on Council Directive 77/249 this case, reliance is placed, as against a of 22 March 1977 to facilitate the effective Member State, on the consequences of exercise by lawyers of freedom to provide establishment in another Member State, it is services in order to provide such services in obvious that there, is a factor connecting . the territory of the other Member State in that situation to provisions of Community which access to the legal profession has law. been refused to him by a court in the latter State for reasons connected with dignity, 9. In addition, a Community national good repute and integrity. The Court is cannot be deprived of the benefit of the asked, more generally, whether the said freedoms provided for by the Treaties or directive is restricted by national public secondary Community law on the ground policy. The second question seeks to that he is a national of the State as against ascertain whether the establishment, which he is relying on those provisions, pursuant to Article 52 of the EEC Treaty, in provided that the situation in question one Member State of a lawyer who is a involves the requisite 'external' factors. national of another Member State pres­ upposes membership of a bar in the host country where such membership is required I — The provision of services by that country's legislation. If the reply to that question is in the negative, the Court is 10. In the light of those observations the asked to state whether a lawyer who is a first question therefore relates to the possi­ national of one Member State and estab­ bility for such a national to rely on lished in another Member State without, Directive 77/249/EEC in a Member State however, being registered at a bar in the where he has been refused access to the latter State may rely on the aforementioned legal profession by a court on grounds directive. connected with his character.

GULLUNG ν CONSEILS DE L'ORDRE DES AVOCATS DU BARREAU DE COLMAR ET DE SAVERNE

undertakings which are established in other 13. Now that those general principles have Member States'. been recalled to mind, let us examine the provisions of Directive 77/249 Article 4 (1) In addition, it was pointed out in those of which provides as follows: decisions that any restrictions in the freedom to provide services could be 'Activities relating to the representation of a imposed client in legal proceedings or before public ' . . . only by provisions which are justified by authorities shall be pursued in each host the general good and which are applied to all Member State under the conditions laid persons ... operating within the territory of down for lawyers established in that State, the State in which the service is provided' with the exception of any conditions (the host Member State). 8 requiring residence, or registration with a professional organization, in that State'. 1 1 In its judgment in Commission ν Germany the Court went on to state that Article 4 (2) states that:

OPINION OF MR DARMON — CASE 292/86

doubt'. Obviously good character, which is territory of the freedom guaranteed by central to the conditions required for the Article 59 for the purpose of avoiding the practice of the profession in question, professional rules of conduct which would constitutes a requirement 'justified by the be applicable to him if he were established general good' and 'objectively justified by within that State; such a situation may be the need to ensure that professional rules of subject to judicial control under the conduct are complied with and that the provisions of the chapter relating to the interests which such rules are designed to right of establishment and not of that on the safeguard are protected', to cite the terms provision of services.' used by the Court in its aforementioned judgments in Webb and Commission ν It is not clear that the application of those Federal Republic of Germany. principles is necessary for the purpose of the

point. By requiring observance of the rules concerned. of professional conduct, the directive assumes implicitly that the person providing 17. In the second place, in this case a court the services has the capacity to comply with has considered the reasons which might bar those conditions and rules. Hence, unless access to the profession of lawyer. In my variable standards as regards the good view it is not without significance that, in character of a lawyer are accepted conformity with the 'right to an effective according to whether he is enrolled at the judicial remedy' recognized by this Court in bar or whether he provides services, a its judgment in Johnston, 14 the relevant person who has been refused access to the requirements as to good character may be profession in a Member State cannot subjected to judicial control.

case. In such a situation the Court has 3755, paragraph 22 of the decision, emphasis added. 14 — Judgment of 15 May 1986 in Case 222/84 [1986] ECR stated, in particular in its judgments in Van 1651.

18. The interpretation of the directive 21. Consequently, I would merely state in which I am proposing to the Court seems to that connection that I am somewhat puzzled me to exclude recourse to the concept of by the argument put forward by the United public policy. Where a Community national Kingdom. This consists in drawing a is unable to rely on the directive concerning distinction between lawyer, (avocat) in the the provision of services because he is wide sense, namely 'member of the legal unable to satisfy the conditions laid down in profession', and avocat in the 'French' the directive there is no need to have sense, in order to exempt the former from recourse to the exception provided for in the requirement of enrolment at a bar if he Article 56 of the Treaty to which Article 66 wishes to practise only in a consultative refers. capacity under his professional title as obtained in his country of origin.

advocate. Is it not possible to see in this the procedure and at the hearing by a number beginnings of a Community definition of of the participants in these proceedings, the term 'lawyer' for the purposes of the namely the question of the establishment as provision of services? Consequently, in the a legal 'consultant' in one Member State of present state of Community law, I would a lawyer established in another Member entertain serious doubts about the advisa State. In its written observations the bility and relevance of casting aside the Commission referred expressly to that kind concepts thus defined when it comes to the

20. It should be noted that the dispute in profession as a result of the exportation, as the main proceedings arose in regard to it were, of personal law, something which activities relating to the representation of a would assuredly be quite alien to any moves client in legal proceedings or before public in the direction of integration which are authorities, which is a characteristic activity based on the principle of equal treatment of a lawyer. It should also be noted that the with nationals. Now that I have clarified cour d'appel, Colmar, refers to the estab these points, it remains for me to consider lishment by virtue of Article 52 of the the question of principle referred to the Treaty of Rome of a lawyer. It seems to me Court by the cour d'appel, Colmar, in therefore that it is hard to find any justifi respect of the requirement of enrolment at a cation for extending the scope of the bar for the establishment of a lawyer. Court's reply so as to cover the discussion in question, although I do not underestimate 22. In accordance with a long line of cases its importance. beginning with the Court's judgment in

The objective of that principle of equal which must be reconciled with freedom of treatment with nationals which, the Court establishment. Without doubt that formu- stressed in its judgment in Reyners, is of lation, which has previously been employed 'fundamental character... in the system of in the Court's judgment in Van Binsbergen21 the Treaty', 1 6 is to put nationals of the State in relation to the provision of services, in question and other Community nationals constitutes the criterion by reference to on an equal footing in relation to the legis- which the conformity of national rules with lation of the host State. Such parity plainly the Treaty must be tested. In that respect, excludes any additional condition, 17 any therefore, what is the position as regards direct or covert discrimination on grounds compulsory registration with a professional of nationality and any requirement which organization? has the effect of rendering freedom of establishment ineffective. 25. I would observe, in the first place, that in its judgment in Auer II which concerned 23. Thus, the Court stated in its judgment the profession of veterinary surgeon, in in Thieffry 18 that the refusal to give 'civil regard to which, it is true, a directive did effect' to a diploma recognized as an equi- refer on several occasions to such valent qualification by the university auth- membership, the Court stated: orities of the host State would constitute a discriminatory restriction. The Court stated 'The laws of Member States which provide in its judgment in Klopp that the national for compulsory registration with a 'single chambers' rule could not, however, professional society are not, . . . , as such, have the effect of causing the authorities of incompatible with Community law'. 22 the host State to require a person to abandon the establishment he already had. It did so after stating that: 24. Subject to those points the principle remains that 'Compulsory registration with or membership of a professional organization or b o d y . . . must be regarded as lawful, 'the practice of such professions [such as inasmuch as they seek to ensure the that of avocat] remains governed by the law observance of moral and ethical principles of the various Member States'. 19 and thedisciplinary control of the activity of veterinary surgeons, requirements which are 15 — Judgment of 21 June 1974 ¡n Case 2/74 [1974] ECR 631. worthy of protection'. 22 16 — Case 2/74, cited above, paragraph 43 of the grounds of the judgment. 17 — Judgment of 28 June 1977 in Case 11 /77 Patrick ν Ministre 20 — Case 71/76, cited above, paragraph 12 of the decision. des affaires culturelles [1977] ECR 1199. 21 — Case 33/74, cited above, paragraph 12 of the grounds of 18 — Judgment of 28 April 1977 in Case 71/76 [1977] ECR 765. the judgment. 19 — Case 2/74, cited above, paragraph 48 of the grounds of the 22 — Judgment of 22 September 1983 in Case 271/82 [1983] judgment. ECR 2727, at p. 2744, paragraph 18 of the decision.

27. Finally, contrary to the observations submitted by the plaintiff in the main 29. At the end of these observations which proceedings, I can find no support in the lead me to propose that the Court should Court's judgment in Klopp for freedom of hold that Article 52 of the EEC Treaty does establishment regardless of the requirement not preclude the requirement at issue, of membership of a professional society. In permit me to refer briefly to some practical fact, after referring to the principle of equal consequences of the contrary conclusion treatment with nationals, the Court stated which would result in a distinction between that in the absence of Community rules national lawyers who alone would be subject to the requirement of enrolment and their Community colleagues who, on estab­ 'each Member State is free to regulate the lishment, would be exempt from that obli­ exercise of the legal profession in its gation. The potential dangers of discrimi­ territory'. 24 nation residing in the distinction between an 'established lawyer' and a 'registered lawyer' must not be disregarded. More particularly, Subsequently, referring to the 'special unless one were to resign oneself to a very nature' of the legal profession, the Court dangerous lack of supervision, thorny recognized that the host Member State problems would not fail to arise once it came to imposing sanctions for even the 'must have the right, in the interests of the most elementary breaches committed in the due administration of justice, to require that State of establishment. How is a person to lawyers enrolled at a bar in its territory be perceived if he remains wholly outside should practise in such a way as to maintain the professional organization in the host sufficient contact with their clients and the State? Should a Community lawyer who as judicial authorities and abide by the rules of a result of an apparently 'liberating' solution the profession'. 25 escapes supervision by a professional body be subject to direct State control contraiy to 23 — Judgment of 18 May 1983 in Case 155/79 AM & S Europe the traditions of professional independence Limited ν Commission [1982] ECR 1575, at 1611, the benefit of which would thus be reserved paragraph 24 of the decision. to national lawyers alone. Serious disad­ 24 — Judgment of 12 July 1984 in Case 107/83 Ordre des avocais au barreau de Paris ν Klopp [1984] ECR 2971, at p. 2989, vantages thus appear in a solution which is paragraph 17 of the decision. dictated neither by the Treaty nor by the 25 — Case 107/83, cited above, paragraph 20 of the decision, emphasis added. case-law of the Court.

(i) a person who is a national of two Member States may rely, as against each of the States concerned, on the rights derived from the Treaty and from secondary law provided that there is a factor connecting his situation to the provisions laid down by Community law;

(ii) such a national, established as a lawyer in one Member State, may not, where he fails to satisfy its conditions, rely on Directive 77/249 facilitating the exercise by lawyers of freedom to provide services, in a State where access to the legal profession is refused by a court or tribunal for reasons of dignity, good repute and integrity;

(iii) Article 52 of the EEC Treaty does not prevent a Member State from making the establishment as a lawyer in its territory of a lawyer of another Member State subject to the requirement, imposed on its own nationals, of registration at a bar.

26 — Case 205/84, cited above, paragraph 21 of the decision, emphasis added.