C-55/94

* Original language: French. 1 — Article 2 of Law No 31 of 9 February 1982 on freedom for lawyers who are nationals of a Member State of the Euro- pean Community to provide services (GURI No 42 of 12 February 1982). 2 — OJ 1977 L 78, p. 17. 3 — National Council of Bar Associations, hereinafter referred to — to prohibit him from using the title as 'the CNF'. 'avvocato';

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— to make further inquiries into the exer­ preliminary ruling two questions, which may cise of his professional activity. essentially be reformulated as follows:

(1) Is the law implementing Directive 77/249 in Member State A compatible 7. On 30 September 1990, disciplinary pro­ with that directive in so far as it provides ceedings were initiated against Mr Gebhard that it is not permissible for a lawyer on the ground that he had practised his pro­ established in Member State Β and pro­ fession in Italy on a permanent basis whilst viding services in Member State A to using the title 'avvocato' and had thereby open chambers in the territory of that infringed the obligations laid down by Law State, whether in the nature of a principal No 31/1982 on the provision of lawyers' ser­ or a branch office, given that the directive vices. 4 contains no reference to the fact that the opening of chambers could be construed as reflecting an intention on the part of the practitioner concerned to cany on his activities, not on a temporary or occa­ sional basis, but on a permanent basis?

8. By decision of 30 November 1992, the Bar Association suspended Mr Gebhard from professional practice for six months by way of penalty. In addition, it did not respond to his application to be entered on (2) What criteria can be used to distinguish the rolls of the Milan Bar Association, which the activities of a lawyer carried out as a he had made on 14 October 1991 pursuant provider of services and the activities of a to Council Directive 89/48/EEC of lawyer established in a Member State? In 21 December 1988. 5 order to assess whether or not a profes­ sional activity is temporary, is it permissi­ ble to rely on the duration or frequency of the services provided by a lawyer act­ ing pursuant to the regime laid down by Directive 77/249?

12. By way of preliminary, let us assure our- selves that the CNF, which is making its first request for a preliminary ruling on interpre- tation to the Court, is in fact a court or tri- 15. Clearly, it was not the nature of the bunal within the meaning of Article 177 of body requesting the preliminary ruling, but the EC Treaty. the purpose of the question referred which led to Court to hold that it had no jurisdic- tion.

13. The CNF, which was constituted by law, 6 hears appeals from local Bar Associa- tions against decisions relating to entries on 16. There is no doubt that a dispute relating the rolls of the Bar Associations and disci- to the conditions for entry on the rolls of the plinary matters. It gives legal rulings and an Bar Association or a dispute relating to a appeal will lie from its decisions to the Sezi- penalty imposed by a Council of Bar Asso- oni Riunite della Corte di Cassazione (Com- ciations is a dispute which that body is bined Chambers of the Court of Cassation). 'under a legal duty to try'. It therefore satisfies the requirements laid down by the judgment in G Vaassen (née 7 — Case 61/65 G Vaassen (née Göbbels) [1966] ECR 261, at 273. 8 — See paragraph 15 of the judgment in Case C-24/92 Corbiau 6 — Royal Decree-Law ('regio decreto-legge') N o 1578 of [1993] ECR I-1277. 27 December 1933, which was enacted as Law N o 36 of 9 — Case 138/80 Borker [1980] ECR 1975. 22 January 1934, as amended. 10 — Paragraph 4.

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17. Moreover, several questions have been means integration into a national econo­ referred to the Court for a preliminary rul­ my'. ing on the conditions for entry on the rolls of the Bar of a Member State, 1 1 including 12 one referred by a court of appeal hearing an appeal from a decision of a Council of 3 Bar Associations. 1 20. The principle of freedom to provide ser­ vices merely enables a self-employed person established in a Member State in which he is integrated to exercise his activity in another The first question Member State.

19. The principle of freedom of establish­ ment aims to foster the free movement of 22. The rules governing those two major self-employed persons by enabling a self- freedoms are very different. Thus, the activ­ employed person from one Member State to ity of lawyers as providers of services is the establish himself in another Member State on subject of harmonizing Directive 77/249, the same terms as a national of the latter which enables services to be freely provided State. In other words, '... establishment under the original professional qualification, whereas conditions for the establishment of lawyers have not — yet — been the subject 11 — For example, the judgment in Case 292/86 Gullung [1988] of an actual harmonizing directive. 1 5 The ECR 111. 12 — Judgment in Case 65/77 Razanatsimba [1977] ECR 2229. establishment of lawyers is governed by 13 — It is observed that in that case the Cour d'Appel de Douai Article 52 et seq. of the Treaty. curiously annulled the decision of the Conseil de l'Ordre (Council of Bar Associations) to refer a question to the Court 'on the grounds that the Conseil de l'Ordre is not an ordinary court of law, that when it gives a ruling on admis­ sion to pupillage it is acting in an administrative capacity and not as a court, and that therefore it is not empowered 14 — Sec section 3 of the Opinion of Advocate General Darmon to make a direct reference for a preliminary ruling to the in Case 81/87 Daily Mail [19S8] ECR 5500. Court of Justice'. For a critical commentary, see A. Brunois 15 — A proposal for a European Parliament and Council Direc- and L. Pettiti: 'Un conseil de l'Ordre peut-il renvoyer en tive to facilitate practice of the profession of lawyer on a interprétation devant la Cour de justice des Communautés? permanent basis in a Member State other than that in which Les décisions ordinales ont-elles un caractère juridic- the qualification was obtained (COM(94) 572 final) was tionnel?' (Gazette du Palais, 25 October 1977, p. 513). presented by the Commission on 21 December 1994.

27. As the Court has constantly reiterated since then, 19 the rules on the provision of services must not serve to circumvent or 25. This is the importance of the distinction evade the rules on freedom of establishment. between establishment and the provision of This risk of fraud is particularly obvious in services. An economic operator must not be the case of the lawyer's profession. Advocate able to circumvent the stricter rules govern- General Darmon stressed this in his Opinion ing the right of establishment by passing in Gullung: 20 himself off as a provider of services when he carries out his activity under the same cir- cumstances as an economic operator estab- lished in the Member State in which he car- ries out his activity. 16 '... it could happen that a Community national might seek to rely on freedom to provide services in order, in fact, to set up nothing less than an establishment and thereby avoid the rules of professional con- 26. The Court held as follows in the judg- duct applicable in such a case'. 21 ment in Van Binsbergen: 17

'... a Member State cannot be denied the 28. Thus, a lawyer established in a Member right to take measures to prevent the exercise State must enrol with the Bar Association

16 — This is what P. Troberg has termed a form of 'verschleierte 18 — Paragraph 13. Niederlassung' [disguised establishment] in Kommentar 19 — See, in particular, the judgment in Case C-148/91 Veronica zum EWG-Vertrag, 'Artikel 59', Goeben —Thicsing Omroep Organisatie [1993] ECR 1-487, paragraph 12. — Ehlermann, 4th edition, p. 1063. 20 — Case 292/86 Gullung [1988] ECR 111, at 123. 17 — Case 33/74 Van Binsbergen [1974] ECR 1299. 21 — Section 16.

(1) a temporal criterion: provision of services is temporary in nature as compared with 22 — Case 279/80 Webb [1981] ECR 3305. the on-going nature of establishment; 23 — Paragraph 16, my emphasis.

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33. The Court has also categorized certain formed'. The provision of services performed activities as a provision of services on the by a lawyer under Directive 77/249 is char- ground that they were conducted 'as a rule ... acterized by its 'temporary nature'. 29 only occasionally' 24 (activities carried out by insurance undertakings as leading insurers) or on the ground that they were 'limited in duration' 25 (services provided to tourists by tour companies or self-employed tourist guides).

36. The provider's activity is precarious and episodic. To use the Commission's term, it is irregular.

34. I would further mention the judgment in Steymann, 26 according to which 'It is clear from the actual wording of Article 60 that an activity carried out on a permanent basis or, in any event, without a foreseeable limit to 37. The second characteristic of the provi- its duration does not fall within the Commu- sion of services is that the provider's main nity provisions concerning the provision of centre of activity must be located in a Mem- services'. 27 ber State other than the Member State in which the service is provided.

40. This is sufficient to show the importance 43. Consequently, there is not a provision of of the question raised: may a provider of ser­ a service unless the insurer is established in a vices have chambers in the host State with­ Member State other than that of the policy­ out being caught by Article 52 of the Treaty? holder and does not maintain a permanent May he be prohibited from opening such presence in the second State or direct his chambers? business activities entirely or principally towards the territory of that State. 32 The Court summarized its position as follows in the judgment in Case 220/83 Commission ν France when it held that: 3 3 '... the require­ ment of establishment, which represented the 41. Examination of the Court's case-law very negation of the freedom to provide ser­ shows that the provision of services does not vices, exceeded what was necessary to attain necessarily preclude the presence of perma­ the objective pursued and ..., accordingly, nent infrastructure in the Member State of that requirement was contrary to Articles the recipient of the service. 59 and 60 of the Treaty'.

44. In certain exceptional circumstances, 42. In the judgment in Case 205/84 Com­ however, the Court does not preclude the mission ν Germany, 30 the Court held very provider of services from being able to have firmly that: available to him a 'permanent presence' in the Member State in which the services are provided.

'... an insurance undertaking of another 31 — Paragraph 21, my emphasis. 32 — Sec paragraph 24 of the judgment in Case 205/84 Commis­ Member State which maintains a permanent sion ν Germany, cited above. 33 — Case 220/83 Commission ν France [1986] ECR 3663, para- grapii 20, my emphasis. Sec also the judgments of the same ate in Commission ν Denmark, cited in footnote 24, at paragraph 20, and in Case 205/84 Commission ν Germany, 30 — Case 205/84 Commission ν Germany [1986] ECR 3755. cited in footnote 30, at paragrapli 52.

'... the requirement that persons whose func- 48. Mr Ramrath, an office employee of the tions are to assist the administration of jus- company Treuarbeit in Luxembourg, had tice must be permanently established for been personally authorized to act as an audi- professional purposes within the jurisdiction tor in Luxembourg and the company itself of certain courts or tribunals cannot be con- had been authorized as a legal person. In sidered incompatible with the provisions of 1989 he was assigned, still as an employee, to Articles 59 and 60, where such requirement the office of Treuarbeit in Düsseldorf, while is objectively justified by the need to ensure wishing to continue to pursue his activity as observance of professional rules of conduct a provider of services in Luxembourg. The connected, in particular, with the administra- Luxembourg authorities withdrew his autho- tion of justice and with respect for profes- rization on the ground that he no longer had sionalethics'. 34 a professional establishment in Luxembourg. May the Member State in which the service is provided require, without infringing Arti- cle 59 of the Treaty, the provider to have a 'permanent presence' or an establishment in its territory where the provider is not estab- 46. In the judgment in Coenen and Oth- lished? ers, 35 the Court held that the host State was authorized to require the provider of services (an insurance intermediary) to have a place of business on its territory for the purpose of providing the services: '... the Member State in question normally has effective means at its disposal for carrying out the necessary 49. In the course of a review of proportion- supervision of the activities of [the provider ality, the Court held in Ramrath that: of the services] and to ensure that the service is provided in accordance with the rules issued under its national legislation'. 36 In contrast, the additional requirement that the person providing services in the territory of that State must also have a private residence in that State was held to be incompatible with the Treaty. 37 '... in view of the special nature of certain professional activities, the imposition of spe- cific requirements pursuant to the rules gov- erning such activities cannot be considered 34 — Paragraph 14. 35 — Case 39/75 Coenen and Others [1975] ECR 1547. 36 — Paragraph 10. 37 — Paragraph 11. 38 — Case C-106/91 Ramrath [1992] ECR 1-3351.

53. Exceptionally, that Member State may, 50. The Court considered that, as a result of however, require the provider to have a per­ the Eighth Council Directive 84/253/EEC of manent structure in its territory. It is for that 10 April 1984 based on Article 54(3)(g) of State to show that that presence in its terri­ the Treaty on the approval of persons tory is strictly justified. Consequently, it responsible for carrying out the statutory may be permissible under Article 59 of the audit of accounting documents, 40 it was for Treaty for the provider to have a permanent each Member State to lay down the criteria structure in the Member State where the ser­ for the independence and integrity of audi­ vices are provided. tors. In order to supervise the auditor's com­ pliance within its territory with the profes­ sional rules, a Member State was justified in laying down requirements of the auditor as regards 'the existence of infrastructure' and his 'actual presence' in its territory. How­ 54. In this case, the opposite situation is ever, those requirements were unjustified involved: the Italian State is not seeking to where the provider of services was estab­ rely on an exception to the principle of law­ lished and authorized to practise as an audi­ yers' freedom to provide services. It is rely­ tor in another Member State and provided ing on the opposite of that principle and is his services in the host State as the employee seeking to prohibit a mere provider of ser­ of a person who was himself established and vices from having any permanent structure authorized in that State. Effectively, it was in its territory. through that person that the competent authorities could ensure compliance with its professional rules by his employees. 4 1

58. Consequently, a general, absolute prohi- bition imposed by a Member State on a pro- Let us take up those two points. vider of services having a permanent struc- ture in the territory of that State appears to be an excessive restriction on the freedom to provide services in so far as it does not enable the lawyer to adduce proof to the contrary to the effect that that structure is I — The principle remains: the presence of necessary. chambers is a sign of establishment.

59. The situation would be otherwise only if 61. In the first place, let us pinpoint what is the specific features of the lawyer's profes- meant by chambers. A lawyer's chambers

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consist of an address, a telephone and secre­ 65. Secondly, the interpretation of Article tarial services, in short a place where services 59 of the Treaty as far as lawyers are con­ are offered to the public. cerned has to take account of the possibility, which is a wide one, of a lawyer who is established in one Member State opening secondary chambers in another Member State.

63. Accordingly, when Mr Gullung opened an 'officine de jurisconsulte' (small legal advice office) in Mulhouse and used notepa- per headed 'Cabinet d'avocat et de conseil' (Advocate's and Legal Adviser's Chambers), 67. The opportunity for lawyers to be estab­ it might be asked whether he was not already lished simultaneously in more than one 'established' for the purpose of pursuing his Member State while complying with the activities in France. 4 2 rules on establishment which are applicable in each of those States caused the Court to put a restrictive interpretation on the rules relating to the provision of services which, without affording the same safeguards to the consumer, could be used to circumvent the 64. In such a case, what is involved is a per­ rules on establishment. I would add that law­ manent establishment, which the Court yers' freedom of establishment was greatly regards as being the very negation of the facilitated by the judgment in Vlassopou- freedom to provide services. 4 3 lou. 4 5

42 — See the judgment in Gullung, cited above, paragraph 26. 43 — See paragraph 19 of the judgment in Case 63/86 Commis­ 44 — Case 107/83 Klopp [19841 ECR 2971. sion v Italy [1988] ECR 29. 45 — Case C-310/89 Vlassopoulon [1991] ECR I-2357.

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II — Exceptionally, the lawyer providing (4) The risk of 'disguised establishment' is services must be able to provide proof that limited. the presence of chambers in the territory of the State in which the services are provided is essential in order for him to be able to perform those services.

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spend a considerable period of time there, Member State in which the services are pro­ for instance on the occasion of a major trial. vided, on condition that that infrastructure is necessary.

70. Admittedly, the Court has held that '... modern methods of transport and telecom­ 72. Directive 77/249/EEC provides for a munications facilitate proper contact with number of measures to facilitate the effective clients and the judicial authorities'. 4 7 pursuit of the activities of lawyers by way of provision of services.

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lawyer providing services from another 78. The directive does not preclude such a Member State to be introduced to the presid- lawyer from having a structure enabling him ing judge and to work in conjunction with a to perform from time to time his activity as a lawyer who practises before the judicial provider of services on a temporary basis. authority in question. 50 The Court has explained the rationale of that provision as follows: '... the obligation imposed upon him to act in conjunction with a local lawyer is intended to provide him with the support necessary to enable him to act within a judi- cial system different from that to which he is 79. That was already the effect of Article accustomed and to assure the judicial auth- 3(2) of the General Programme for the abo- ority concerned that the lawyer providing lition of restrictions on freedom to provide services actually has that support and is thus services adopted by the Council on in a position fully to comply with the proce- 18 December 1961. 53 dural and ethical rules which apply'. 51

(3) Supervising compliance with the rules of 76. A lawyer providing services is to pursue professional conduct does not require that the activities relating to the representation of a lawyer providing services may not have a client in legal proceedings or before public permanent structure. On the contrary, a per- authorities '... under the conditions laid manent structure facilitates monitoring the down for lawyers established in [the host] activity of the provider of services. State, with the exception of any conditions requiring residence, or registration with a professional organization, in that State'. 52

82. In the first place, the fact that there is permanent infrastructure in the host Member State does not mean that the activity carried on there by the lawyer is also permanent. The lawyer must be able to show that the 84. In the final analysis, the absolute, general permanent provision of an office in the bar on opening chambers imposed by the Member State where the services are pro­ Italian legislation on lawyers providing ser­ vided is essential in order for him to perform vices is based on an irrebuttable presumption his services even though he uses it only from of fraud: on the ground that a lawyer provid­ time to time. ing services who opens chambers could only be a lawyer who intends to circumvent the rules on establishment, the law closes off that possibility. I consider, in contrast, that open­ ing chambers may answer a real need for 83. Secondly, it must be considered that the lawyers providing services and that it is for Court has consistently held that '... a Mem­ the State in which the chambers are opened ber State cannot be denied the right to take to prove, on a case-by-case basis, the exist­ measures to prevent the exercise by a person ence of any fraud on the rules governing providing services whose activity is entirely freedom of establishment. or principally directed towards its territory of the freedoms guaranteed by the Treaty for the purpose of avoiding the rules which would be applicable to him if he were estab­ lished within that State'. 54In addition, those measures must be proportional to the objec­ tive pursued. 5 5It appears certain to me that measures less restrictive of trade in services than a general, absolute prohibition on hav­ 85. I conclude that Articles 59 and 60 of the Treaty and Directive 77/249 must be inter­ preted as precluding national legislation of a 54 — Paragraph 20 of the judgment in Case C-23/93 TV 10 host Member State prohibiting lawyers pro­ [1994] ECR I-4795. viding services from opening chambers in the 55 — See the judgment in Case 52/79 Debauve [1980] ECR 833, paragraphs 12 and 22. territory of that State.

56 — It is significant in this regard that the appellant in the main proceedings — as several parties observed before the Court 89. It also follows from the foregoing that — has himself placed himself within the ambit of Article 52 of the Treaty by applying to be placed on the roils of the the situation in which a lawyer entered on Milan Bar Association and relying on Directive 89/48.

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92. The question as to whether he must 93. For example, in some Member States the comply with the rules and obligations to lawyer's profession has a monopoly over which established lawyers are subject or legal advice. In other Member States, the whether he is exercising a separate occupa­ profession lives alongside chambers of jurists tion not subject to the same requirements is from other Member States who advise only a question of national law and has not yet on the law in those States. been harmonized.

94. I therefore propose that the Court should rule as follows:

'Articles 59 and 60 of the EC Treaty and Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services must be interpreted as precluding national legislation of a host Member State prohibiting lawyers providing services from opening chambers in the terri­ tory of that State.