C-340/89

Mr President, July 1983 in collaboration with two Members of the Court, Mannheim lawyers with whom she shares offices. Although she has retained her regis- tration at the Athens Bar and continues to practice there, the main focus of her professional activity is in Mannheim. Before Background the national court she has stated that, as regards her practice in German law, she works independently and has contact with clients, although under the responsibility and supervision of one of the two German 1. Irene Vlassopoulou, a Greek national, lawyers with whom she works. Finally, I obtained a law degree in 1977 at the would point out that, in addition to her University of Athens. After passing an doctoral thesis, she has published two examination she was admitted as an articles on Greek law in the German review advocate of the Athens Bar in 1982. In the IPRax. same year she obtained her doctorate with the grade 'magna cum laude" at Tübingen University with a thesis entitled 'Der eheliche Hausrat im Familien- und Erbrecht' (Matrimonial Household Effects in Family and Succession Law). The 2. On 13 May 1988 Mrs Vlassopoulou doctorate was devoted to German law and applied for admission to the bar and for in preparation for it she followed a number authorization to practice as an advocate of courses in German law between 1978 and ('Rechtsanwalt' or, in her case, 1981 at the Law Faculty of Tübingen 'Rechtsanwältin') at the Amtsgericht (local University. court) Mannheim and the Landgerichte (regional courts) of Mannheim and Heidelberg. However, that application was refused by the Ministerium für Justiz, Bundes- und Europaangelegenheiten On 9 November 1984 she obtained authori- (Ministry of Justice and Federal and zation to deal with foreign legal matters, European Affairs of the Land Baden- including the giving of legal advice Württemberg, hereinafter referred to as the (Rechtsberatung) on Greek law and 'defendant' on the ground that she did not Community law, in accordance with point 5 satisfy the requirements laid down in of the second sentence of Paragraph 1(1) of Paragraph 4 of the Bundesrechtsanwalts- the Rechtsberatungsgesetz. ' She has also ordnung (Federal Regulation on the practised in the field of German law since Profession of Rechtsanwalt) 2 for admission as a lawyer, that is to say possession of the * Original language: Dutch. I - La« of 13 December 1985, Bundesgesetzblatt (BGBl.) III, 2 — BGBl. 1959, I, p. 565, as amended by the Law of p. 303. 13 December 1989, BGBl. 1989,1, p. 2135.

Before looking at the observations Mrs Vlassopoulou's application for judicial submitted to the Court I would point out review of this refusal was dismissed by the for the sake of clarity that the question of Ehrengerichtshof (Lawyers' Disciplinary law before the Court concerns freedom of Council). She then appealed to the Bundes- establishment and not freedom to provide gerichtshof (Federal Supreme Court), which services. In other words, for Mrs Vlasso- has referred the following question to the poulou, it is not a question of offering her Court for a preliminary ruling: services as a Greek lawyer to clients in the Federal Republic (which she is, moreover, entitled to do on the basis of Directive 7 7 / 2 4 9 / E E C 4 ) ; she seeks to establish herself in the Federal Republic of Germany 'Is freedom of establishment within the as a lawyer within the meaning of the legis- meaning of Article 52 of the EEC Treaty lation of that State, that is to say by infringed if a Community national who is acquiring the title of, and by practising as, a already admitted and practising as a lawyer lawyer (Rechtsanwalt). in her country of origin and for five years has been admitted in the host country as a legal adviser (Rechtsbeistand) and also practises in a law firm established there, can be admitted as a lawyer in the host country only in accordance with the statutory rules Nor can the question raised be answered of that country?' (not yet, at any rate) by reference to the rules contained in Directive 89/48/EEC 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, 5 3. Given the facts set out above the because the period for the transposition of question before the Court is thus clear: Do that directive does not expire until the Treaty provisions on freedom of estab- 4 January 1991. 6 lishment permit a Member State (the 'host' Member State) to refuse access to a 4 — Council Directive of 22 March 1977 to facilitate the profession (in this case that of lawyer) on effective exercise by lawyers of freedom to provide services (OJ 1977 L 78, p. 17). the sole ground that the conditions which 5 — Council Directive of 21 December 1988 (OJ 1989 L 19, that Member State requires its own p. 16). 6 — In implementation of the directive of 6 July 1990 the Federal Republic has adopted a Law (see BGBl. 1990, I, 3 — The current version is that published on 19 April 1972, p. 1349), which likewise enters into force only on BGBl., I, p. 713. 1 January 1991 (see Article 6 of the Law).

Let us first look at the wording of the second paragraph of Article 52. It states: 5. The nub of Mrs Vlassopoulou's arguments may be summarized as follows. As a lawyer already admitted to the Athens Bar where she retains her registration, she "Freedom of establishment shall include the also seeks to establish herself as a lawyer in right to take up and pursue activities as self- the Federal Republic. Although the exam- employed persons . .. under the conditions ination and training requirements laid down laid down for its own nationals by the law in the Richtergesetz apply without distinction of the country where such establishment is to German nationals and nationals of other effected'. Member States, Mrs Vlassopoulou argues that those requirements may not be applied to lawyers from other Member States without at the same time taking into account professional and academic qualifi- The German and Italian Governments and cations already acquired by the lawyer, in the defendant point out that the provisions particular qualifications in relation to the on freedom of establishment, unlike those law of the host Member State. In other relating to the freedom to provide services, words, Mrs Vlassopoulou is not challenging are based on the principle that the migrant the right of a Member State to require worker is in principle subject in the host certain academic and professional qualifi- Member State to all obligations imposed by cations as a condition of access to the that Member State on its own nationals. profession of lawyer, but the fact that there They go on to state that when there are no is only one way in which nationals of specific Community provisions on the point other Member States can satisfy those (as is the case in this instance) each Member requirements. That, in her view, entails an State is free to lay down rules governing unjustified restriction on the freedom of access to, and the exercise of, a profession establishment which can only be remedied if in its territory, provided that the rules do the academic and professional qualifications not discriminate against nationals of other of foreign lawyers are examined for equiv- Member States. This point of view, they alence, and if foreign lawyers in appropriate consider, is affirmed in the Klopp 7 and 8 — Judgment of 19 January 1988 in Case 292/86 Gullung v 7 — Judgment of 12 July 1984 in Cast 107/83 Ordre des Conseil de l'Ordre del Avocali du Barreau de Colmar [1988] Avocali au Barreau de Paris v Klopp [1984] ECR 2971. ECR 111.

6. T o begin with, I would recall that the prohibition of discrimination contained in Article 52 is a concrete example of the principle of equality laid down in Article 7 of the Treaty, which forms the cornerstone of each of the foundations of the Community, namely the free movement of 7. In Klopp a German lawyer applied for persons, services, goods and capital. It has admission to the Paris Bar. His application long been established in the case-law of the was refused on the sole ground that as a Court of Justice on freedom of movement lawyer he already maintained an office in for workers, freedom of establishment, another Member State (Germany). In that freedom to provide services and the free connection the French legislation and the movement of goods, that the rules on equal statutes of the Paris Bar provided that a treatment not only prohibit overt discrimi- lawyer could have only one office, and had nation on the ground of nationality but also to be established within the district of the all covert forms of discrimination which, by court at which he was admitted. The French the application of other distinguishing Bar Association and the French Government criteria, lead in fact to the same result. 9 had argued before the Court that as regards That interpretation is deemed by the Court access to and the exercise of the right to to be necessary in order to ensure the effec- freedom of establishment Article 52 refers to tiveness of one of the fundamental prin- the conditions laid down by the Member ciples of the Community. , 0 Specifically in State of establishment. Since the restriction in question was applicable without distinction to French nationals and to 9 — First established in the judgment of 12 February 1974 in Case 152/73 Sorjin v Deutsche Bundespost [1974] nationals of other Member States, there ECR 153, at paragraph II, (national legislation may not could not be said to be discrimination. The subject workers to different treatment on the ground that they do not reside within national territory), recently Court affirmed (at paragraph 17 of the affirmed in the judgment of 30 May 1989 in Case 33/88 Alluci Università degli Studi di Venezia [1989] ECR 1591, judgment) that in view of the wording and at paragraph 11, (tne restriction contained in an Italian the context of Article 52 of the EEC Treaty Law on the duration of the employment of foreign language teachers at the University — a restriction which each Member State, in the absence of does not apply to the other staff of the univer- specific Community rules on the matter, is sities — constitutes indirect discrimination on the ground of nationality because only 25% of the teachers concerned free to regulate the exercise of the are of Italian nationality). profession of lawyer in its territory. But the 10 — See the judgment in Sotgiu, cited in the previous footnote, Court added: at paragraph 11.

That affirmation was reinforced by 8. The ruling in Klopp was reaffirmed in reference to the wording of Article 52 from the Gullung case which concerned the which the Court inferred a general principle question whether a lawyer established in according to which the right of estab- Germany could establish himself in France lishment includes freedom to set up and without contravening the rule applicable in maintain, subject to observance of the France requiring a person to be enrolled at professional rules of conduct, more than a bar in order to practise as a lawyer. " The one place of work within the Community Court reiterated that Article 52 of the (see paragraph 19). More specifically, in Treaty permits the Member States, in the relation to the exercise of the profession of absence of specific Community rules lawyer, the Court confirmed that, whilst the governing the matter, to make access to and host Member State did have the power to the exercise of a profession (including the require that lawyers enrolled at a bar in its profession of lawyer) subject to conditions territory should practise in such a way as to which also apply to their own nationals. u maintain sufficient contact with their clients The Court established that the contested and the judicial authorities and abide by the rule was applicable without distinction, but rules of the profession, nevertheless: examined whether that rule could be deemed to be objectively justified:

9. In the judgment in RSVZ v Wol/ and Others of 1988' 3 the Court was required to rule on Belgian legislation which granted Finally, it was indicated that since the persons whose principal gainful employment contested Belgian provision granted no was in Belgium exemption from contri- additional social protection (that is to say a butions to the social security scheme for right to supplementary benefits under the self-employed persons but refused to grant scheme for self-employed persons) to the such an exemption to persons whose persons concerned, the resultant impediment principal gainful employment was held to the pursuit of occupational activities in abroad. The Court expressly stated that the more than one Member State could not be contested provision contained no direct or justified on that basis. 16 indirect discrimination on the ground of nationality, and that Article 7 of the Treaty had thus not been infringed. M Yet it held the provision to be contrary to Article 52 10. It is evident from those judgments that (and Article 48) of the Treaty. It recalled the Court sees in Article 52 of the Treaty the Klopp judgment, in which it was not only a provision prohibiting discrimi- affirmed that freedom of establishment nation on the ground of nationality but also entailed the right to set up and maintain one precluding national provisions which, more than one place of work within the irrespective of the occupation in question, territory of the Community. 1 5 It added: make it less easy without objective justifi- cation for Community nationals to pursue their occupation outside the territory of their own Member State. More particularly, 'The provisions of the Treaty relating to the Article 52 precludes national provisions free movement of persons are thus intended which place Community nationals 'at a to facilitate the pursuit by Community disadvantage when they (like Mrs Vlasso- citizens of occupational activities of all poulou) wish to pursue their activities kinds throughout the Community, and beyond the territory of a single Member preclude national legislation which might State'. place Community citizens at a disadvantage when they wish to pursue their activities beyond the territory of a single Member State. The obligation to take account of qualifi- cations already obtained

State already possesses when the question of more than one Member State. That whether such a person satisfies the further proviso is important because it is requirements laid down for admission to a precisely upon that basis that the host specific profession comes to be examined. Member State must take account of qualifi- That means that such qualifications must cations already obtained, an obligation be assessed for compliance with the which the abovementioned governments do requirements laid down by national law and not acknowledge. that proper account must be taken of the degree of compliance by considering all or part of the qualifications required by national law to have been fulfilled.

system. The Court answered that question to carry on their occupation within the in the affirmative by reference to the special entire territory of the Community, in nature of the employment relationships particular when they wish to establish them- inherent in the activity of employment selves on the territory of more than one agencies and the protection of the legitimate Member State. This obligation also interests of the workforce concerned. I 8 At precludes Community subjects who wish to the same time it pointed out that the establish themselves in another Member requirement of a licence would be excessive State from being less favourably treated or in relation to the aim pursued if the from being subjected to unnecessary dupli- requirements to which the issue of a licence cation, or complication, of admission was subject unnecessarily duplicated the requirements. proofs and guarantees already required in the State of establishment. Therefore, in

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Member State. The Member State of country of origin.22 importation made the use of the product in question subject to a prior authorization granted on the basis of a laboratory exam- ination. The Court recognized that system as falling within the exception provided for by Article 36 of the EEC Treaty, but at the Thus, in the matter of the free provision of same time pointed out that the Member services, it is also accepted that such States had an obligation to contribute to provision can only be subject to rules which relaxing controls in intra-Community trade, apply to all persons or undertakings and thus could not unnecessarily require operating within the territory of the technical or chemical analyses or tesu Member State concerned and which are already carried out in another Member justified by the general good in so far as State to be repeated.21 that interest is not safeguarded by the provisions to which the provider of a service is subject in the Member State of his estab- lishment.23 In accordance with that case-law, Directive 77/249/EEC, adopted to facilitate the effective exercise by lawyers However, the similarity with the case-law of of freedom to provide services,24 enables the Court on the freedom to provide persons who carry on the profession of services and the free movement of goods lawyer in the various Member States to be

ECR 3755, at paragraph 25. See also the Van Wesemael judgment, already cited in footnote 19, the Webb judgment 20 — Judgment of 17 December 1981 in Case 272/80 [1982] already cited in footnote 17 and the recent judgment of ECK 3277, affirmed in the judgment of 11 May 1989 in 27 March 1990 in Case C-l 13/89 Rush Portuguesa [1990] Case 25/88 W«rm«r[1989] ECR 1105. ECR 1-1417.

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VLASSOPOULOU

relating to freedom of establishment, it Member State in which he also wishes to should not be forgotten that freedom of practice. establishment, as a minimum requirement, also requires Member States to take account of qualifications already acquired when national rules relating to the access to a given profession are applied.

25 — In that connection it should be pointed out that Mrs Vlas- 26 — Judgment of 28 April 1977 in Case 71/76 Jean Thicffry v sopoulou was not contradicted by the German Conseil de l'Ordre des Avocats à Lt Cour de Pans [1977] Government and the defendant in the main proceedings ECR 765. when she argued that large areas of Greek civil law and the law of civil procedure are to a considerable extent 27 — See paragraph 2 of the judgment. similar to German law. 28 — See paragraph 19 of the judgment.

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14. The duty to take account of qualifi- the host Member State) and the qualifi- cations already obtained flows, as has cations required by the host Member State 3 5 already been stated, from Article 52 of the (only when it is revealed on this exam- Treaty which since the end of the transi- ination that the qualifications already tional period has had direct effect, 31 and obtained in a given case are either wholly or exists even in the absence of any rules at partly equivalent to the qualifications

to 32. experience and the completion of an adap- 32 — See, in addition to the Reynen judgment mentioned in the preceding footnote, the Thiiffry judgment already 33 — See the judgment in Unecte/v Rtynen, mentioned above at mentioned in footnote 26, at paragraph 18, and the judgment of 28 June 1977 in Case 11/77 Patrick [1977] paragraphs 30 to 31. ECR 1199), at paragraphs 10 to 13, affirmed in the 34 — Already mentioned above in footnote 5. judgment of 15 October 1987 in Case 222/86 Heyltns [1987] ECR 4097, at paragraphs 11 to 12. 35 — The existence of that obligation is also recognized in the fifth recital in the preamble to the directive.

15. As has already been stated, the duty described above flows from Article 52 of the EEC Treaty, a Treaty provision having It is the task of the national court to direct effect. Even though a directly identify such rules. Yet I would like to effective obligation under Community law is examine a number of provisions which were involved, its fulfilment will still often require also discussed at the hearing and which will a careful examination of the degree of be mentioned later in a different context. 40 correspondence between qualifications acquired in the country concerned and abroad. 37 Such an examination must be carried out by the national authorities pursuant to an actual application for admission to a regulated professional activity, on the basis of the obligation under Article 5 of the Treaty to ensure the legal 16. In the first place, I would refer to the protection afforded to Community nationals Treaty of Unification (Einigungsvertrag) by directly effective provisions of Community law. Furthermore, in the 38 — See the judgment of 5 March 1980 in Case 265/78 H. Fermenta B. V. v Produklicbap mor Vee en Vlees [1980] absence of Community rules, such an exam- ECR 617, at paragraph 10; of 16 December 1976 in Case 33/76 Rewe-Zentralfinanz eG and Another v Landwirt- ination must be carried out with regard to schafiskammer jur das Saarland [19761 ECR 1989, at the applicable national rules; however, the paragraph 5; of 16 December 1976 in Case 45/76 Comet B. V. v Produktschap voor Siergewassen [1976] ECR 2043, effectiveness of the directly applicable at paragraphs 15 to 16; and of 9 July 1985 in Case 179/84 provisions of Community law must not be Bozzetti v Invemizzi SpA and Another [\<)iS\ ECR 2301, at paragraph 17. See also the judgment of 19 June 1990 in Case C-213/89 The Queen v Secretary of State for Transport, ex parte Factortame [1990] ECR 1-2433. 36 — See Article 4 of the directive. Normally the applicant is entitled to choose between an adaptation period and an 39 — See in that respect the Thieffry judgment, already aptitude test. For 'professions whose practice requires mentioned in footnote 26, and the Heylens judgment precise knowledge of national law and in respect of which mentioned in footnote 32. the provision of advice and/or assistance concerning 40 — I can imagine that there are also other factors which will national law is an essential and constant aspect of the have to be taken into account. For example, it seems to me professional activity', the host Member State may in dero- likely that, upon Mrs Vlassopoulou's admission to the gation from that principle stipulate either an adaptation doctor's degree course at the University of Tübingen, an period or an aptitude test (see Article 4(l)(b) infine). assessment nad already been made of her earlier academic 37 — This difficulty also arises in the same manner, according education and its comparability with the legal education in to the judgments in Webb and Fram-Nederlandse Maat- the Federal Republic. It appears from the Thieffry schappij voor Biologische Producten, in areas concerning the judgment mentioned above that the national authorities freedom to provide services and the free movement of must take account of any such assessment (see paragraphs goods. 20 to 26 of that judgment).

A similar provision is to be found in the Gesetz über die Rechtsstellung heimatloser Ausländer im Bundesgebiet (Law on the Secondly, there is Paragraph 92 of the legal position of homeless foreigners in the Bundesvetriebenengesetz (Federal Law on Federal territory) of 25 April 1951. 4 6 Paragraph 15 of that Law provides that 41 — Sec Article 37 of the Einigungsvertrag. examinations passed abroad by 'homeless 42 — Ibid. foreigners' must be recognized in the 43 — See Annex I, Chapter III, A, Section II, N o 2 of the Eini­ gungsvertrag. Admission to the profession of Rechtsanwalt in the German Democratic Republic forms the subject- 44 — The current version seems to be that published on matter of the Rechtsanwaltsgesetz enacted on 3 September 1971, BGBl. I, p. 1565. 13 September 1990. See the Gesetzblatt der Deutschen Demokratischen Republik 1990, I, N o 61, p. 1504. This 45 — In German academic writing the view is propounded that, Law lays down as a general requirement legal studies at an owing to the fact that Paragraph 112 of the Richtergesetz East German university, if appropriate complemented by refers only to the second subparagraph of Paragraph 92 of practical training (sec Paragraph 4 of the Law). the Vertriebenengcsetz, recognition under the Richtergesetz The Einigungsvertrag also offers to inhabitants of the of such diplomas in law obtained after 8 May 1945 is not former German Democratic Republic the possibility of possible. See G. and J. Schmidt-Räntsch, Kommentar zum taking an aptitude test (see Annex II, Chapter III, A, deutschen Richtergesetz, Fourth Edition, 1988, paragraph 1 Section III, N o 1(e), and lays down similar arrangements on § 112. That does not, however, preclude the criteria in a number of 'transitionaľprovisions in favour o f trainee developed on the basis of this paragraph from being used lawyers and students from the former German Democratic as a guide for the assessment of the equivalence of examin­ Republic; some of those provisions are to continue in ations or certificates in general in the examination to be force until the end of 1992 (see Annex I, Chapter III, A, conducted as described in paragraphs 11 to 15. Section III, 8(y]. 46 — BGBl., I, p. 269.

17. It may be seen that each of the At the hearing the representative of the foregoing procedures is intended to lead to German Government recognized that the recognition of the equivalence of diplomas Unification Treaty contains preferential and certificates obtained elsewhere. The treatment of a number of German nationals obligation described above (paragraphs 11 but pointed out at the same time that the to 13) stemming from Article 52 of the EEC Unification Treaty is a unique event based Treaty is not so far reaching since it does on exceptional circumstances. In reply to not extend to the recognition of the equiv- that point it can only be stated that alence of diplomas or certificates but to an Community law precludes any national assessment of the degree of correspondence legislative action incompatible with it, between qualifications already obtained (in whatever the grounds for its adoption, 47 the person's own Member State or another and that a Member State may not impair Member State) and the qualifications the effectiveness of a directly effective required under national law. Such an exam- provision of Community law by concluding ination will not normally result in the recog- a treaty with another State. 48 nition of diplomas or certificates but might lead to part of the qualifications required by national law being regarded as fulfilled. Yet the experience acquired in the procedures described above with regard to the Nor may a difference in treatment be comparability of diplomas and certificates justified by the fact that not all persons of obtained elsewhere can be useful in fulfilling German nationality can lay claim to the the obligation described above. preferential treatment in question. On that point a parallel may be drawn with the interpretation of Article 30 of the EEC Treaty: in a recent judgment the Court emphasized that a measure favouring only some national products as against foreign Infringement of the principle of equality? products could not on that account escape the prohibition of Article 30, since all the products benefiting from the preferential system were national products. 49

19. The whole question is, however, German Democratic Republic or acquired whether discrimination prohibited by Article certain professional experience. Mrs Vlasso- 7 of the Treaty may be considered to exist. poulou considers that that criterion is In the Court's case-law it is accepted that a discriminatory and disputes that it pursues difference in the treatment of situations an objective justified under Community law. which are not comparable does not in itself I myself am inclined to consider that the 50 constitute discrimination. In the case of provisions contained in the Unification the Law on Expelled Persons one could Treaty are justified because they constitute speak of preferential treatment in favour of preferential treatment of a group likewise a group disadvantaged by historical circum­ disadvantaged as a result of historical stances. circumstances. In other words, it is a question of making up ground lost, from In the case of the Unification Treaty, pref­ the viewpoint of the EEC Treaty, by a erential treatment applies to those who have group of Community nationals in relation to completed certain studies in the former all other nationals.

Conclusion

20. On the basis of the foregoing considerations I propose that the following reply should be given to the question raised:

The obligation contained in Article 52 of the EEC Treaty not to treat less favourably Community subjects who wish to carry on their activities in the territory of more than one Member State must be interpreted as requiring the competent authorities of a Member State, in assessing an application for admission to the profession of lawyer (Rechtsanwalt) by a national of another Member State who is admitted to practice and practices as a lawyer in his own Member State and is already admitted and works as a legal adviser (Rechtsbeistand) in the Member State in which admission is applied for, to examine to what extent the academic and professional qualifications acquired by the applicant in the Member State of origin and in the host Member State correspond with those required by national law for access to the profession and to take account of such correspondence.