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exercise by lawyers of freedom to provide Bar in the host Member State, and/or services 2 (hereafter 'Directive 77/249'). to work in conjunction with a practis- That directive, adopted on the basis of ing lawyer, 'avoué' or 'procuratore' in what were then Articles 57 and 66 of the the host Member State. EC Treaty, required each Member State to recognise as a lawyer any professional possessing that title in any other Member State, with the following exceptions:

Directive 89/48/EEC — a lawyer providing services must prac- tise under his home-country profes- sional title, with an indication of the professional organisation by which he was authorised to practise or the court of law before which he is entitled to 4. The next step was taken through the practise (Article 3); adoption on the basis of former Articles 49, 57(1) and 66 of the Treaty of Council Directive 89/48/EEC of 21 December 1988 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 3 — Member States may exclude from the (hereafter 'Directive 89/48'). ambit of this rule the preparation of formal documents for obtaining title to administer estates of deceased persons and the drafting of formal documents creating or transferring interests in land (Article 1(2));

5. Unlike Directive 77/249, Directive 89/48 is general in nature, applying to all regu- lated professions to the extent that they have not been the subject of specific measures. Directive 89/48 thus establishes — Member States may also require law- that a host Member State may not refuse to yers intending to pursue activities relat- authorise the practice by a migrant worker ing to the representation of clients in of a regulated profession without consider- legal proceedings to be introduced to ing the equivalence of qualifications which the presiding judge and, where appro- he has gained in his home country (Arti- priate, to the President of the relevant cle 3).

9. According to the statement of reasons given for that act, the raison d'être of the Directive is not only that, in relation to the general system of recognition established 7. However, in respect of the legal profes- by Directive 89/48, it offers lawyers an sions, the following sentence was inserted easier route by which to join the profession in the second paragraph of Article 4(1): in the host Member State, but also that it meets the needs of the consumers of legal services who, owing to the increasing trade flows resulting from the internal market, seek advice when carrying out cross-border transactions in which international law, Community law and domestic laws often 'By way of derogation from this principle, overlap (fifth recital in the preamble to the for professions whose practice requires Directive). precise knowledge of national law and in respect of which the provision of advice and/or assistance concerning national law is an essential and constant aspect of the professional activity, the host Member State may stipulate either an adaptation 10. A further reason for the Directive is the period or an aptitude test.' need to resolve, at Community level, the

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problem that only a few Member States be expressed in the official language or one permit, and in different forms, the practice of the official languages of his home of the law, otherwise than by way of Member State, in an intelligible manner provision of services, by lawyers from other and in such a way as to avoid confusion Member States practising under their with the professional title of the host home-country professional titles, and the Member State. fact that such a diversity of situations leads to inequalities and distortions in competi- tion which restrict freedom of movement (sixth recital).

'1. A lawyer practising under his home- country professional title who has effec- 2. Member States which authorise in their tively and regularly pursued for a period of territory a prescribed category of lawyers to at least three years an activity in the host prepare deeds for .obtaining title to admin- Member State in the law of that State ister estates of deceased persons and for including Community law shall, with a creating or transferring interests in land view to gaining admission to the profession which, in other Member States, are of lawyer in the host Member State, be reserved for professions other that that of exempted from the conditions set out in lawyer may exclude from such activities Article 4(1)(b) of Directive 89/48/EEC. lawyers practising under a home-country "Effective and regular pursuit" means professional title conferred in one of the actual exercise of the activity without any latter Member States. interruption other than that resulting from the events of everyday life.

(a) The competent authority of the host Member State shall take into account the effective and regular professional Reasons shall be given for a decision by the activity pursued during the abovemen- competent authority in the host Member tioned period and any knowledge and State not to grant an exemption where professional experience of the law of proof is not provided that the requirements the host Member State, and any atten- laid down in the first subparagraph have dance at lectures or seminars on the been fulfilled, and the decision shall be law of the host Member State, includ- subject to appeal under domestic law. ing the rules regulating professional practice and conduct.

(b) The lawyer shall provide the competent 2. A lawyer practising under his home- authority of the host Member State country professional title in a host Member with any relevant information and State may, at any time, apply to have his documentation, in particular on the diploma recognised in accordance with matters he has dealt with. Assessment Directive 89/48/EEC with a view to gaining of the lawyer's effective and regular admission to the profession of lawyer in the activity in the host Member State and host Member State and practising it under assessment of his capacity to continue the professional title corresponding to the the activity he has pursued there shall profession in that Member State. be carried out by means of an interview with the competent authority of the host Member State in order to verify the regular and effective nature of the activity pursued.

6. A lawyer who gains admission to the 'Freedom of establishment shall include the profession of lawyer in the host Member right to take up and pursue activities as State in accordance with paragraphs 1, 2 self-employed persons and to set up and and 3 shall be entitled to use his home- manage undertakings, in particular compa- country professional title, expressed in the nies or firms within the meaning of the official language or one of the official second paragraph of Article 58, under the languages of his home Member State, conditions laid down for its own nationals alongside the professional title correspond- by the law of the country where such ing to the profession of lawyer in the host establishment is effected, subject to the Member State.' provisions of the Chapter relating to capi- tal.'

17. According to the applicant, that provi- IV — Consideration of the pleas in law sion establishes a principle in accordance supporting the claim for annulment with which the self-employed migrant worker is to be treated in the same way as his national counterpart. The equal treat- ment thus required must be assessed with 15. In support of its application, Luxem- regard to the laws of the host Member State bourg puts forward three separate pleas for and not the laws of the migrant's home annulment on the grounds of infringement country. In support of this, it cites the of the following three provisions of the EC judgment in Patrick, according to which Treaty: the second paragraph of Article 52 'the rule on equal treatment with nationals (now, after amendment, the second para- is one of the fundamental legal provisions graph of Article 43 EC); Article 57(2) of the Community and, as a reference to a

18. Luxembourg claims that, although in its judgment Gebhard, 5the Court of Jus- tice gave a broad interpretation to the concept of establishment, the right of 20. The Parliament, the Council, Spain, the establishment can be exercised only under Netherlands, the United Kingdom and the the conditions laid down for nationals in Commission all contend that the first plea the host country. The principle of assimila- should be rejected, but for different rea- tion set out above militates against the sons. long-term extension, by way of harmonisa- tion through a measure such as the Direc- tive, of provisions specific to rules govern- ing the provision of services within the meaning of Article 59 of the EC Treaty (now, after amendment, Article 49 EC) in 21. I also am of the opinion that this plea favour of a large number of the profes- must be rejected; my reasons are similar to sionals who may benefit from it. those put forward by the representatives of the United Kingdom Government.

Therefore, the second paragraph of Arti- cle 52 cannot form the basis for the prohi- 23. This argument is utterly irrelevant: the bition of a supposed discrimination against discrimination alleged by the applicant persons practising law in their Member does not exist and, even if it did, it could State of origin on the basis of qualifications not be challenged on the basis of Arti- and professional training obtained in that cle 52. I shall address this final point first. same Member State. 8

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29. In so far as it is not indissociable from eration the diplomas, certificates and other the second plea, this claim constitutes a evidence of qualifications which the person new plea in law and, since it is not based on concerned has acquired in order to exercise matters of law or of fact which have come the same profession in another Member to light in the course of the proceedings, it State by making a comparison between the must be declared inadmissible in accor- specialised knowledge and abilities certified dance with Article 42(2) of the Rules of by those diplomas and the knowledge and Procedure. In any event, this plea in law qualifications required by the national would not be successful, as it is based on rules.' n the same erroneous interpretation of Arti- cle 52 as I observed in my analysis of the first plea.

31. In summary, the plea for annulment based on Article 52, paragraph 2 put forward by Luxembourg must be rejected. 30. The second paragraph of Article 52 defines only the minimum content — not the maximum — of the right of establish- ment. As the representative of the United Kingdom rightly says: it is no part of the function of Article 52 to impose limits on the process of liberalisation. B. Infringement of Article 57(2) of the EC Treaty

unanimously throughout the procedure vided for in Directive 89/48, may gain referred to in Article 251, shall decide on access to the profession. directives the implementation of which involves in at least one Member State amendment of the existing principles laid down by law governing the professions with respect to training and conditions of access for natural persons. In other cases 35. Furthermore, the Directive alters other the Council shall act by qualified majority.' conditions for access to the profession by natural persons by removing prohibitions in force in various Member States relating to establishment under the home-country professional title and joint practice in the profession. 33. By this second plea in law, Luxembourg hopes to show that the Directive was incorrectly adopted, according to Arti- cle 57(1) and the first and third sentences of Article 57(2), excluding the second sen- 36. In support of its argument, Luxem- tence. 12 That error allowed the Council to bourg cites, in particular, the judgment in act by qualified majority instead of unan- Germany v Parliament and Council, 13 imously, despite the fact that the Directive which states in paragraphs 16 and 17: imposed an amendment of the legal princi- ples relating to both training for, and access to, the legal profession.

'... in the absence of coordination at a Community level the Member States may, subject to certain conditions, impose national measures pursuing a legitimate 34. According to the Grand Duchy, the aim that is compatible with the Treaty Directive infringes a fundamental legal and is justified on overriding public interest principle of the legal profession, which grounds, which include the protection of exists in all the Member States, by virtue of consumers (see, in particular, Case 205/84 which only those persons who have demon- Commission v Germany [1986] ECR strated a sufficient knowledge of the 3755). national law or who have acquired recog- nition of their qualification by passing a test where appropriate, such as that pro-

38. The three Institutions and the three Member States parties to these proceedings, following essentially parallel lines of argu- 37. In summary, the applicant submits that ment, ask that this plea be dismissed. the legal basis of the Directive ought to have included the second sentence of Arti- cle 57(2) since the Directive alters the legal principles relating to training and condi- tions of access to the legal profession and, in particular, because the Directive: 39. I share their view. I shall examine Luxembourg's arguments in ascending order of importance.

— abolishes the requirement that the migrant lawyer, in order to practise 40. In the first place, it is not the case that the law of the host State, should the Directive authorises joint practice of the

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41. Nor, secondly, is it the case that Arti- cle 2 of the Directive, by declaring the right of all lawyers to practise in any Member State under their home-country profes- 43. Further, the Directive allows the sional title, alters a legislative principle. In migrant lawyer to give advice in the law my view, there is no such alteration. of the host country. However, that provi- sion is not a novelty either. As the applicant State acknowledges, Directive 77/249 already offered that option to lawyers providing services in a State other than their home country by treating them in the same way as national lawyers and not excluding that option from the ambit of 42. The right of a lawyer in possession of their activities. At the latest by the end of qualifications obtained in one Member the two years provided in Directive 77/249, State to practise in another Member State each Member State must have established a under his home-country professional title in legal principle according to which a lawyer the fields covered by that professional title from another Member State may advise on (that is to say, usually, the law of the home the law of the host country, subject to the State, including Community law, and inter- conditions imposed by the Directive, those national law), is directly derived from the being the obligation to use the home- freedom of establishment enshrined in country professional title so as to avoid Article 52 of the Treaty, the direct effect any confusion and, in some cases, the of which has been affirmed by the Court of maintenance of restrictions relating to Justice. 14

certain notarial activities and representa- accepted that the temporary nature of the tion in legal proceedings. provision of services does not mean that a provider of services may not equip himself with some form of infrastructure (including an office, chambers or consulting rooms) in the host Member State in so far as that is necessary for the purposes of performing the services in question, 17 and the Court These same conditions are found, almost had previously recognised that the right of word for word, in Article 5(2) and (3) of establishment of natural persons involves the contested Directive. The only difference the ability to have various centres of between the two systems is that the first activity in different Member States. 18 comes within the ambit of the provision of services and the second develops freedom of establishment. Nevertheless, I cannot see how that could have any bearing, in particular in relation to consumer protec- tion, on the sole element of public interest cited by the applicant. 45. Luxembourg claims that the limitations laid down by Article 5 of the Directive and the obligation to practise under the home- country professional title do not ensure adequate protection for the consumer. It rejects the approximation of the established migrant lawyer and the provider of ser- 44. On the contrary, I think, in common vices. Except by unlikely oversight, the with a large number of the parties, that it latter would be confined to acting within would be inconsistent to allow the lawyer his fields of competence, on account of the providing services to advise on the law of temporary and occasional nature of his the host State but not the lawyer who is presence, whereas the established lawyer established in that State and who, by virtue would find himself in a position of perma- of his greater contact with the local legal nent supply which, from an economic point system, must be in a better position to offer of view, would strongly encourage him to reliable advice. In those circumstances, the extend the ambit of his activities. resulting restriction imposed on the estab- lished lawyer would not satisfy any of the four conditions laid down by the Court in Gebhard, cited above, that is to say, that it should apply in a non-discriminatory man- ner, that it should be justified by imperative requirements in the general interest, that it 46. The three institutions which are parties, should be suitable for securing the attain- the remaining fourteen Member States and ment of its objective and that it should go the CCBE, the Council of the Bars and Law no further than necessary for the attain- Societies of the EC, are of the contrary view ment of that objective. 16 In particular, in that, in fact, these measures provide an that same judgment, the Court of Justice

It is impossible to eliminate all risk of incompetent conduct on the part of migrant 50. I hope that I have already shown that lawyers, just as it is impossible to prevent a that argument does not apply to migrant national lawyer from advising in matters of lawyers who practise under their home- national law for which he does not have the 21 — Case 427/85 Commission v Germany [1988] ECR 1123, paragraph 27. 19 — In which I agree with the applicant. See the Report for the 22 — And even if a legal principle had been altered, that would Hearing, paragraph 25. not affect, as I shall point out later, either the training for 20 — Following the example of the CCBE Code of Conduct the conditions for access to a profession, within the (Article 3.1.3). meaning of Article 57(2), second sentence.

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country professional title. In their case, the tion by the competent authority of his rights laid down in the Directive are experience and knowledge in the law of directly derived from the EC Treaty or the host country (third paragraph). come as a consequence of rules already set out in Directive 77/249.

51. The situation is different for those 52. Given that the Grand Duchy alleges lawyers who avail themselves of the system presumed abolition of any obligation that of full integration provided for by Arti- the lawyer who wishes to establish himself cle 10. It will be recalled that that provision under his national professional title should gives the migrant lawyer three routes by demonstrate sufficient knowledge of the which he can be placed on a completely legal system of the host country, its com- equal footing with national lawyers. They plaint can only be understood as being are as follows: directed at the second of those cases. The other two recognise the right of the host country to verify that those skills have been acquired.

55. Now, if it can be shown that the Directive creates an amendment to the legal principles relating to conditions of access to a profession, then it is the case 57. In principle there are two possible that it ought to have been adopted in answers. accordance with the procedure referred to in the second sentence of Article 57(2) — that is to say unanimously. I shall examine each of these concepts separately (amend- ment, legal principles, conditions of According to the first, there would be as many means of 'access' to the profession of 23 — As an example of a regulation which does contain provisions for coordination relating to training, see lawyer in the European Union as there are Council Directive 93/16/EEC of 5 April 1993 to facilitate different legal systems, with their own rules the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal and requirements. In this case, it would be qualifications (OJ 1993 L 165, p. 1). Article 23 of which access not to the profession of lawyer in the demands, in effect, that doctors must have acquired: '(a) adequate knowledge of the sciences on which medicine is absolute sense, but rather to the profession based and a good understanding of the scientific methods including the principles of measuring biological functions, of lawyer within a determined legal order. the evaluation of scientifically established facts and the This is the definition proposed by Luxem- analysis of data; (b) sufficient understanding of the structure, functions and behaviour of healthy and sick bourg. persons, as well as relations between the state of health and physical and social surroundings of the human being; (c) adequate knowledge of clinical disciplines and prac- tices, providing him with a coherent picture of mental and physical diseases, of medicine from the points of view of prophylaxis, diagnosis and therapy and of human repro- duction; (d) suitable clinical experience in hospitals under appropriate supervision.' Also, 'A complete period of medical training of this kind shall comprise at least a six- year course or 5 500 hours of theoretical and practical instruction given in a university under the supervision of a According to the second, there is only one university'. Article 24 contains additional conditions: kind of 'access' to the profession, subject to completion and recognition of six years of controlled, full-time study, including practical and theoretical teaching different rules in each of the European which takes place in centres with specified characteristics, systems. The provisions relating to legal etc. Other provisions establish requirements relating to the training of specialist doctors. practice in a Member State other than that 24 — For the rest, the applicant's allegation that by abolishing in which the professional qualification was any requirement of training, the Directive derogates from the fundamental requirement of knowledge, prior to obtained regulate no more than the mutual practice and evidenced by a diploma, of the law of the recognition of formal evidence of aptitude host country, is confused with its argument relating to or, at most, the rules of practice of a conditions of access.

59. That being so, I consider it inevitable to prefer the second definition as it is less restrictive of the right to freedom of establishment. For the adoption of the directives provided for therein, the Treaty refers to the proce- dure laid down in Article 189b of the EC Treaty (now, after amendment, Article 251 It must not be forgotten that freedom of EC), which establishes a system of joint movement constitutes one of the primordial decision-making between the European objectives of the Treaty which, moreover, Parliament and the Council, the latter confers individually on every worker in the acting by qualified majority. Only in the Community the fundamental right of free situations envisaged by the second sentence access to employment. 25 On the other of Article 57(2) is unanimous approval in hand, the lawful requirement, in the var- the Council required following consulta- ious Member States, relating to the posses- tion with the Parliament. If a decision is the sion of qualifications for admission to rule, unanimity is the exception. Further- certain occupations, constitutes a restric- more, interpreting the areas subject to the tion on the effective exercise of the freedom procedure of joint decision broadly rein- of movement of workers guaranteed by the forces the participation of the Parliament in Treaty. 26 In other words, if freedom of the legislative process of the European movement, and, hence, freedom of estab- Union, and that participation reflects, lishment, are the rule, national measures within the Community, a fundamental which form obstacles to it, and which democratic principle, that the peoples should take part in the exercise of power

through the intermediary of a representa- In this respect, I find it highly significant tive assembly. 28 that Directive 89/48, which regulates exactly the same material (practice under the title of the host country through a combination of home-country qualifica- tions and a period of adaptation or an aptitude test) was not even adopted on the basis of the first and third sentences of Article 57(2) but only on the basis of 60. The exceptional dual nature — mate- Article 57(1) (mutual recognition of diplo- rial and procedural — of the provision mas, certificates and other evidence of contained in the second sentence of Arti- formal qualifications). 30 cle 57(2) makes it necessary to interpret it restrictively and to prefer, when choosing between two equally possible interpreta- tions, that which best fits with the logic of that Article and with the general scheme of the Treaty.

That did not stop the Court from recognising that 'it is evident from the fourth and fifth recitals in the preamble that the Directive does not aim to harmonise the conditions laid down by national rules for access to the occupation of hairdresser and the pursuit of that occupation' (Aubertin That system, like that introduced by Arti- and Others, cited above, paragraph 12). Also, in relation to Council Directive 67/43/EEC of 12 January 1967 cle 2, does not seek to change the condi- concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of tions laid down by national legislation for self-employed persons concerned with: 1. Matters of 'Real access to a profession. Estate' (excluding 6401)(ISIC Group ex 640), 2.

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63. Furthermore, even supposing that the agree that a similar principle exists in all Directive does regulate fundamental the Member States; I cannot agree, how- aspects of the system for access to a ever, with the rest of the Grand Duchy's profession, it would be necessary to demon- argument. strate, for this plea to be founded, that there had been an amendment to that system. In examining that condition, it is of primary importance to specify with great precision the principle concerned.

66. According to the applicant, the Direc- tive abolishes the requirement for all law- yers to know the law of the State in which they intend to practise by doing away with the requirement for an aptitude test. 64. In the text of its application, Luxem- bourg does not use the same terms through- out. It alludes to a 'fundamental legislative principle of the legal profession which is common to all Member States, which is that it is a profession to which only persons 67. I think that Luxembourg is confusing with the necessary aptitudes in national law fact with presumption of that fact, the can gain access', 31 and then says that 'the reality of knowledge and skills with the fundamental principle which is altered by indices for assessing them. the Directive is that which obliges all migrant lawyers to acquire knowledge in the law of the host country'. 32

In effect, passing an aptitude test merely make it possible to assume that the candi- date has a certain level of knowledge; it 65. To summarise, the legislative principle does not amount to knowledge itself but is referred to by Luxembourg, in general 'proof' of knowledge only in a figurative terms, is that any person wishing to gain sense. access to the legal profession in a particular State must have the necessary knowledge and skills in the law of that State. I would

In the Middle Ages, Alfonso X the Wise, in the host country without having to pass King of Castille and Leon (1252-1284), an aptitude test has existed as a principle. wrote in his Book of Laws or Registers 33 that 'todo ome que fuere sabidor de derecho o del fuero o de la costumbre de la tierra, porque lo aya usado como oficio por de grand tiempo, puede ser abogado por otro' ('any man who has knowledge of 70. The Court of Justice has also recog- the law, or of the usage, or of the custom of nised, in the specific case of the legal the land, because he has for a long time profession, the importance of acquired used that knowledge in his office or occu- experience as evidence of professional apti- pation, may be the advocate of another'). 34 tude. In Vlassopoulou, cited above, the authorisation to practise the profession in Germany sought by a Greek lawyer was refused because she had not studied law in Germany, nor passed the two state exam- inations required by the German legisla- tion. The Court of Justice declared, firstly, that the competent authority of the Mem- ber State was obliged, by virtue of Arti- cle 52, to compare the knowledge and abilities certified by the foreign diploma with the requirements established for nationals. If that comparison showed only partial equivalence, the national authorities must go on to assess whether 'the knowl- edge acquired in the host Member State, either during a course of study or by way of practical experience, is sufficient in order to 69. As I have indicated, Directive 89/48 prove possession of the knowledge which is provided, in its Article 4(1)(b), for the lacking'. 35 It is of relevance that the practice of the profession under the host Court's reasoning in that judgment was country title following an adaptation per- based exclusively on the Treaty. iod of three years. Although it is true that that Directive allowed Member States to choose to require lawyers to pass an aptitude test (an option which the great majority of Member States took up), the fact remains that, at the latest from the 71. The contested Directive does no more entry into force of Directive 89/48, the than codify that jurisprudence, with the possibility of lawyers joining the profession following touch: the choice between the aptitude test and the period of adaptation is now given to the individual, and not the 33 — The Seven Registers make an admirable attempt to Member State. This advance is in line with rationalise Roman and Canon law. Although the popular support enjoyed by the traditional Castilian 'fueros' the objective of Article 57, which is to deprived them of legal force, they inspired judgments from the King's Supreme Court and shaped the way of thinking of the new jurists. The practical influence of their rules and principles has been felt up until recent times. 34 — Law 2a. of Title 6 of Register III. 55 — Paragraph 20.

It is understandable that some prefer one method over the other, 36 just as some argue On the question of whether it may be for one or another type of test or for shorter concluded from Article 10(1) that a lawyer or longer periods of adaptation, but perso- who had practised solely in the field of nal preferences cannot be put forward as Community law for the three-year period legal criteria. would have the right to full integration, it must be recalled that Community law forms an integral part of the law of the Member States and, with the exception of legal proceedings involving the institutions, is applied in the national legal context. Furthermore, it will be for the Member State concerned, including its judicial 72. Last, it is my understanding that the bodies, and, in some cases, the Court of Directive, by allowing full integration for Justice, to interpret the precise scope of the the migrant lawyer on proof of effective provisions of the Directive. 37 and regular pursuit for a period of at least three years of an activity in the host Member State in the law of that State, including Community law, affects only the means by which knowledge and legal skills not covered by the home country diploma are accredited, without jeopardising the principle which states that any candidate In addition, the applicant's representative for the profession of lawyer must have the explained that, pursuant to the Directive, a necessary knowledge and skills in the legal lawyer could obtain integration by virtue of field in which he intends to practise. Article 10(1), despite having given negative proof of his knowledge by failing the aptitude test provided for in Directive 36 — In that way, some celebrate the new Directive as favouring 'effective practice rather than theoretical knowledge 89/48. That argument is fallacious: the acquired from textbooks' (Nebbia, P: The New Directive aptitude test serves only to give a presump- on Lawyers' Establishment: Uses and Abuses, European Current Law Yearbook, 1998, p. xlii, particularly p. xlv), tion of knowledge; failing the test deprives while others feel that 'it does not seem as though we can give up reliable control mechanisms which allow the the candidate of this form of accreditation, verification of a minimum level of legal knowledge' ['verlässliche Kontrollmechanismen, auf deren Grundlage ein gewisser Mindeststandard der Rechtskenntnisse verifi- zierbar ist, erscheiner unverzichtbar'] (Henssler, M: Der 37 — The terms 'regular' and 'effective' are also indeterminate lange Weg zur EU-Niederlassungsrichtlinie für die legal concepts which will probably lead to controversy Anwaltschaft, Zeitschrift für europäisches Privatrecht, over interpretation. For this, see Ewig, E: Verwirklichung 1999, pp. 689 et seq., particulary p. 704 — which, despite der Niederlassungsfreiheit für Rechtsanwälte in der EU that, states that the Directive does not affect national legal und im EWR, Neue juristische Wochenschrift, 1999, principles relating to training or conditions of access). No 4, pp. 248 et seq., in particular, p. 232.

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The Directive finds grounds also in the law of that State including Community law diversity of legislation in the various Mem- for a period of three years, a lawyer may ber States relating to the possibility of a reasonably be assumed to have gained the lawyer establishing himself permanently aptitude necessary to become fully integra- under his home-country title, which diver- ted into the legal profession there' and that sity distorts competition and creates an consequently 'at the end of that period the obstacle to free movement (sixth recital, see lawyer who can, subject to verification, paragraph 10 above). furnish evidence of his professional compe- tence in the host Member State should be able to obtain the professional title of that Member State' (14th recital).

With regard to the procedures for integra- tion provided for by Article 10, the Direc- tive is justified by reference to Articles 48 and 52 of the Treaty, as interpreted by the Court of Justice, which oblige the host 84. I consider, therefore, that in adopting Member State to take into account profes- the Directive the Parliament and the Coun- sional experience acquired in its territory. cil have not failed to fulfil the obligation to In this sense, the Directive explains that state reasons imposed by Article 190 of the 'after effectively and regularly pursuing in Treaty. The third and final plea must, the host Member State an activity in the therefore, be rejected.

V — Conclusion

85. Having regard to the considerations above, I propose that the Court of Justice should dismiss the action for annulment brought by the Grand Duchy of Luxembourg against Directive 98/5/EC of the European Parliament and the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained, and order the applicant to pay the costs.