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The aptitude test must take account of the Paragraph 1(b) sets forth three cases in fact that the applicant is a qualified pro- which the host State may require the fessional in the Member State of origin or applicant to complete an adaptation period the Member State from which he comes. It or pass an aptitude test: shall cover subjects to be selected from those on the list, knowledge of which is essential in order to be able to exercise the profession in the host Member State. The test may also include knowledge of the professional rules applicable to the activ- ities in question in the host Member State. '— where the matters covered by the The detailed application of the aptitude test education and training he has received, shall be determined by the competent as laid down by Article 3(a) and (b), authorities of that State with due regard differ substantially from those covered to the rules of Community law. by the diploma required in the host Member State, or

The status, in the host Member State, of the applicant who wishes to prepare himself for — where... the profession regulated in the the aptitude test in that State shall be host Member State comprises one or determined by the competent authorities of more regulated professional activities that State.' which are not in the profession regu- lated in the Member State from which the applicant originates or comes and that difference corresponds to specific education and training required in the host Member State and covers matters which differ substantially from those 3. Article 3 sets forth the principles govern- covered by the diploma adduced by the ing access to a regulated profession and its applicant, or exercise.

6. Article 4(2) prohibits Member States from requiring evidence of professional experience while also requiring completion of an adaptation period or the passing of an 4. possess a diploma in law conferred or aptitude test. certified by an Italian university;

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5. have successfully completed a practical Persons within the meaning of Article 1 training period, of at least two years [nationals of Member States authorised to after graduation, in a lawyer's office, practise as lawyers in their Member State of participating in civil and criminal pro- origin] shall be permitted to pursue law- ceedings in the Court of Appeal or in yers' professional activities on a temporary the Tribunale on conditions to be laid basis in contentious and non-contentious down under Article 101, or performed matters in accordance with the detailed legal representation duties before the rules laid down in this title. Preture within the meaning of Article 8 for the same period of time;

The establishment on the territory of the Republic of chambers or of a principle or branch office for the purpose of exercising the professional activities mentioned in the paragraph above shall not be permitted.'

7. have their residence in the judicial district of the Court in which enrol- ment is requested.' 9. Decreto Legislativo No 115/1992 (here- inafter 'the 1992 Legislative Decree') 5 provides for the transposition of Directive 89/48.

' 1 . The aptitude test shall consist of an examination to ascertain professional ' 1 . The application for professional recog- knowledge and knowledge of the profes- nition must be presented to the competent sional rules and to evaluate the applicant's Minister, together with the required docu- ability to exercise the profession, taking mentation relating to the title to be recog- into account that the applicant is a quali- nised as indicated in Article 10. fied professional in his country of origin or the country from which he comes.

2. The subjects to be examined shall be selected from among those whose knowl- edge is essential for the exercise of the profession.'

3. Within 30 days from receipt of the application, the Minister shall confirm the completeness of the attached documen- tation and inform the applicant of any additional information to be provided. 12. Article 9 provides:

'In concert with the Minister for the Coor- dination of Community policies and the Minister for Higher Education and Scien- tific and Technical Research and after consulting the Council of State, the com- petent Minister, within the meaning of Article 11 [in the present case, the Justice 5. The competent Minister shall decide Minister], shall by decree issue the rules upon recognition by issuing a decree within and guidelines for the application of four months from the filing of the appli- Articles 5, 6, 7 and 8 concerning the cation or the provision of additional infor- individual professions and the professional mation in accordance with subparagraph 3 training relevant to them.' above.

16. Considering that certain provisions of Italian law governing access to, and the exercise of, the profession of lawyer were 14. Article 15(1) provides: incompatible with the freedom of establish- ment and the freedom to provide services, the Commission, by letter of notice of 24 October 1997, initiated proceedings against Italy for failure to fulfil an obli- gation under Article 169 of the EC Treaty (now Article 226 EC). The Italian Govern- ' 1 . The agencies and organs charged with ment responded by letter of 29 January maintaining the professional lists and reg- 1998. Since this response did not allay the isters shall be responsible in matters relat- Commission's suspicion of a Treaty ing to the completion and evaluation of the infringement, it sent a reasoned opinion to adaptation period and the aptitude test. the Italian Republic on 8 October 1998, requesting it to adopt the measures necess- ary to comply with the opinion within two months. The Italian Government replied by

6 — 'Disposizioni per l'adempimento di obblighi derivanti 5 dall'appartenenza dell'Italia alla Comunità europea legge comunitaria 1993' (GURI No 52 of 4 March 1994).

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letter of 16 December 1998, to which were conditional upon possession of Ita- attached the additional observations of the lian citizenship, possession of Ministry of Justice. qualifications acquired exclusively in Italy and residence in an Italian judicial district, in breach of Article 52 of the EC Treaty (now Article 43 EC);

17. After concluding that the Italian Republic had not fulfilled its obligations, the Commission, by application dated 14 April 1999 filed on 21 April, brought this action against the Italian Republic before the Court. — by applying the 'compensatory measures' (aptitude test) provided for by Article 4 of Directive 89/48 in a discriminatory manner against lawyers from other Member States;

IV — Assessment of the Commission's Evaluation grounds of action

21. As the Commission correctly argues, it is clear from the ruling in Gebhard 7that A — First ground: prohibition of the the contested prohibition in Article 2(2) of establishment of law chambers or of a the 1982 Law is incompatible with the principle or branch office freedom to provide services. In paragraph 27 of that judgment, the Court held that 'the fact that the provision of services is temporary does not mean that the provider of services within the meaning of the Treaty may not equip himself with some form of Arguments of the parties infrastructure in the host Member State (including an office, chambers or consult- ing rooms) in so far as such infrastructure is necessary for the purposes of performing the services in question'.

24. Even if the contested condition is no 27. The Commission challenges, secondly, longer applied, this does not change the the obligation, under Article 17(1)(7) of the fact that the maintenance of the relevant 1933 Law, for lawyers to have their provision of law constitutes an infringe- residence in the judicial district in which ment of Community law. 9 they seek to register. In its view, that obligation contravenes the freedom of establishment guaranteed by Article 52 of the Treaty.

25. It is therefore proposed that the Court declare that the Italian Republic has failed to fulfil its obligations under Article 59 of the T r e a t y by having m a i n t a i n e d Article 2(2) of the 1982 Law in existence. 28. The Italian Government argues that the residency requirement serves a need of judicial organisation and facilitates moni- toring. However, the requirement is no longer imposed in practice, in observance of the opinion of the 'Consiglio nazionale forense No 6 C/1994'. Finally, the pro- posed law provides that the residency B — Second ground: residency require- requirement is to be replaced by the ment criterion of place of business ('domicilio professionale').

26. With respect to the second ground of the Commission's complaint, it is useful to treat the objection to the residency require- ment separately from the objection to the nationality requirement and the qualifi- 29. As regards the administrative practice cations. mentioned by the Italian Government, the Commission asserts that administrative practice conforming to Community law is 9 — See the established case-law, for example Case 116/86 not sufficient to satisfy the requirements for Commission v Italy [1988] ECR 1323, paragraph 15, and the freedom of establishment. To do so, the Case C-358/98 Commission v Italy [2000] ECR I-1255, paragraph 17. law in question must be amended.

31. Even if it were proven that the provi- sion in question is no longer applied in practice, so that the residency requirement is ignored, there would still be a breach of Community law. 1 1According to the estab- lished case-law of the Court, a Treaty 34. By the third ground of its complaint, infringement may also reside in the main- the Commission seeks a declaration that tenance on the statute book of a national the provisions of Article 17(1)(1), (1)(4), law which is incompatible with Commu- and (1)(5) of the 1933 Law violate freedom nity law. of establishment in so far as access to the lawyer's profession is made subject to possession of Italian nationality and an Italian diploma in law ('laurea in giuris- prudenza') and completion of a two-year apprenticeship in Italian courts. While Article 10 of the 1994 Law abolishes the nationality requirement, and the 1992 32. It follows that the requirement that Legislative Decree eliminates the need for lawyers reside in the judicial district in an Italian law degree and completion of an which they seek to be registered violates apprenticeship, the need for legal certainty freedom of establishment. still remains unsatisfied. The Commission refers on this point to the established and, in its opinion, relevant case-law of the 10 — Case C-162/99 Commission v Italy [2001] ECR I-541, Court. In particular, it states that Article 17 paragraph 20 and Case C-106/91 Ramrath [1992) ECR I-3351, paragraphs 20 to 22 and 28. of the 1933 Law, which contains the main 11 — On the case-law to the effect that a generally compatible provisions governing access to the lawyer's practice is not sufficient, see the judgments cited in footnote 9. profession, has not been amended. The

40. The much-cited judgment in Case 36. It must be mentioned at the outset that C-71/92 concerns a different situation, in the present case concerns the compatibility which one Member State allowed more of Italian law with primary law, and not exceptions than those provided for by a the transposition of a directive. The case- law cited by the Commission, almost all of which has to do with the transposition of a 12 — Case 167/73 Commission v France [1974] ECR 359, directive, is not automatically applicable in paragraphs 41 and 42, and Case C-162/99 (cited in the present case. The Commission does not footnote 10 above), paragraph 33. 13 — For an analogous case, see most recently Case C-162/99 put forward appropriate reasons. (cited in footnote 10 above), paragraph 25 et seq.

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directive and is irrelevant in the present tioned by the Commission, that 'the case. 14 Member States' legal rules should be worded unequivocally', 16 so that 'the per- sons concerned can ascertain the full extent of their rights'. 17

41. In what follows, only those criteria which may be derived from case-law that is applicable to the facts here are considered.

45. With respect to legal certainty and clarity, it all depends, according to estab- 42. The basic premiss for national law to lished case-law (even on directives), 18 on be compatible with the primary law is that the legal position from the perspective of it must be effected 'by means of national the persons concerned. provisions of a binding nature', which moreover — in case of amendment — 'have the same legal force as those laws which must be amended'. 15

51. While it is true that the 1994 Law is a consolidated law, this is one of the typical instruments used by the Italian legislature to adapt national law to Community law. 48. The Commission's argument, by which Lawyers who wish to establish themselves lawyers who wish to establish themselves in in Italy, at least, might be expected to know Italy would be discouraged by their first about the existence of such a consolidated reading of the Italian rules, does not take law. Since, as the Commission rightly account of the kind of behaviour that can, affirms, it relates to lawyers from other in principle, be expected of a lawyer. A Member States, they of all persons are careful lawyer, whom we must surely use as affected, in their right of access to the a yardstick, will, it is to be presumed, not profession, by the compatibility of national be satisfied with the conclusion he reaches rules with Community law. after a first reading of a legal text, especially if that conclusion is unsatisfac- tory.

52. The Commission, arguing that the legal situation is ambiguous, does not consider that the citizenship requirement was 49. In no circumstances is the scope of the repealed by the 1994 Law, even in the three amendments to be determined 'only form of a partial, formal derogation from by recourse to interpretive rules of national Article 17 of the 1933 Law. It was not law'. 2 0The principle of the later rule possible for Article 17 of the 1933 Law to belongs to the common heritage of legal be repealed in full, because the Article 17 methods in all of the Member States and citizenship requirement was to be kept in not only in them. Precisely the lawyers force with respect to citizens of third States. affected by the provisions at issue in this case ought therefore to be familiar with them.

practise a regulated profession, and that orities' specific application of the aptitude they are not regulated by a sectorial direc- test provided by Directive 89/48 to lawyers tive on recognition. 21 Furthermore, both from other Member States. before and after the issuance of the direc- tive — and still today — there has been, and continues to be, wide-ranging dis- cussion and debate in the literature on the meaning of this directive for lawyers. It may therefore be assumed that of all people lawyers who wish to establish themselves in Arguments of the parties another Member State will be familiar with its provisions. Lawyers who wish to estab- lish themselves in Italy may also be expected to be aware of the Italian rules 56. The Commission accuses the Italian for implementing Directive 89/48. Identify- Republic of a discriminatory practice in ing laws is part of the lawyer's profession administering the aptitude test to lawyers and this must apply a fortiori to provisions from other Member States. It argues that of a Member State in which he intends to the aptitude test, viewed in the light of the exercise his profession. pertinent provisions of Directive 89/48 and compared with the qualification examin- ation administered to Italian lawyers, is disproportionately difficult. Directive 89/48 ultimately serves to facilitate the establishment of lawyers.

54. It follows that the challenge raised by the Commission in its third complaint is unfounded. 57. The Commission founds its argument on a general comparison of the subjects tested in the examination for Italian law- yers with those required of lawyers from other Member States. In the written test, lawyers from other Member States have to contend with four out of eleven subjects, D — Fourth complaint: aptitude test while Italian lawyers have just three. In the oral test, lawyers from other Member States have to sit eleven subjects, Italian lawyers six. The Italian Republic is there- fore abusing its right to require an aptitude 55. By its fourth ground of complaint, the test. Commission challenges the Italian auth-

59. As there is in its view no sufficiently Evaluation specific provision on the aptitude test, the Commission relies on the abovementioned general comparison of the examination requirements together with evidence based on various specific individual cases. The 62. It is first of all essential to point out Commission focuses on cases from 1998, in that this ground of complaint relates not to which an aptitude test was required of the transposition but the application of the lawyers from other Member States, and on aptitude test to a particular professional one decision of an administrative tribunal, group, in this case lawyers. Article 1(g) of which in its view is correct, overturning a Directive 89/48 lays down a special regime decision of the competent minister which it for the professions that provide legal considers to contravene Community law. advice. It imposes certain limitations upon the principle of mutual trust on which Directive 89/48 is based. 22 The Member States may therefore decline to provide the choice (available to the applicant in prin- ciple) between the aptitude test and the adaptation period, and simply impose the 60. The Commission claims infringement aptitude test instead. of the general principles of proportionality and non-discrimination which are among the provisions with which the Member States too are, under Article 1(g) of Direc- tive 89/48, bound to comply. 63. The special provisions in place for the professions providing legal advice reflect the profound differences in education (dur- ation and subjects covered) and profes- sional training (nature and duration), as 61. The Italian Government argues in essence that a minimum of discretion is necessary in order that account be taken of 22 — V. Pertek, L'Europe des diplômes et des professions, 1994, p. 79; Schneider, Die Anerkennung von Diplomen in der the varying professional abilities of lawyers Europäischen Gemeinschaft, 1995, p. 197.

69. Comparing the implementing provi- sions of the Member States relating to the aptitude test, it is not to be overlooked that Directive 89/48 did not establish lower 66. As is demonstrated by the wording of standards, but more stringent require- Article 1(g), and by the fact that not all ments. applicants fulfil the same requirements, especially in the area of training and prac- tice as a qualified lawyer, the comparison 24 — Lonbay, comment on Case C-55/94, in Common Market of the educational process must be under- Law Review, 1996, p. 1073, at p. 1084, footnote 38); Scordamaglia, 'La direttiva CEE sul riconoscimento dei taken in the light of the individual case and diplomi', in Il Foro Italiano, 1990, IV, p. 391, at p. 400. 25 — Beuve-Méry, 'La reconnaissance des diplômes', in Revue du Marché Commun, 1990, p. 293, at p. 296 et seq; Wägenbaur, 'Neue Wege zur Anerkennung der Hoch- schldiplome', in Europarecht, 1987, p. 113, at p. 120 et 23 — Ninth recital of Directive 89/48. seq.

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lawyers derive specifically from the dispar- the Italian practice fails to take account of ity between both groups of persons. Unlike the fact that the applicant is a qualified the position in the cases cited by the professional. A relevant infringement in Commission, the present case does not this connection might be the fact that the relate to two homogenous groups that are subjects are tested academically but the comparable for the purposes of the manner ability to apply them in practice is not. It in which the law treats them. The Com- would also be impermissible if the aptitude mission bases its arguments on specific test were organised like the 'normal' exam- individual cases concerning lawyers from ination for admission to the legal profes- other Member States. The Commission sion. 2 8 ought therefore to have explained why it was disproportionate to prescribe those particular subjects, or in what way the procedure was otherwise disproportionate in these cases.

79. In the absence of a uniform practice, the Commission ought not to have limited itself to an overall evaluation, but ought at least to have provided evidence of infringe- 76. It must none the less be added that the ment of Community law in individual review of the Italian practice the Commis- cases. As it did not do so to the extent sion is asking for implies a review by the required, the challenge raised under the Court of the Member States' exercise of fourth complaint is unfounded. their discretion. The Court would have to review the evaluations upon which the decisions of the competent authorities of the Member States were based.

83. For purposes of clarification, it is first of all necessary to point out that the question whether directives are to be trans- posed at one or more particular legislative 81. The Commission bases its challenge on levels is a question of domestic law. It is the fact that the Italian provisions for the therefore for the Italian Republic in this transposition of Directive 89/48 do not case to decide whether to effect transposi- regulate, or do not regulate precisely tion by means of a legislative decree only or enough, certain aspects of the aptitude test. by means of a legislative decree together For example, there are no rules regulating with implementing provisions, in so far as the composition of the examination board. such provisions are binding. Furthermore, the list of subjects, in par- ticular which subjects are to be obligatory and which left to the choice of the appli- cants, needs to be specified in greater detail. Finally, there are no provisions for the form of the test (written or oral), or for the grading scale. The 1992 Legislative Decree 84. Next, regarding the question of com- contains too many gaps, leaving applicants plete transposition, it is first of all necessary in a situation of total legal uncertainty. to set forth the standards against which the This defect was to have been remedied by Italian provisions must be evaluated. the implementing decree provided for in Article 9 of the 1992 Legislative Decree but not yet adopted.

85. It must be assumed that, according to the jurisprudence of the Court, transposi- tion cannot be effected solely by means of administrative measures. 29

89. The 'detailed application of the apti- tude test' must extend to procedural rules. The Member States' duty to specify the detailed aspects of the aptitude test, in other words its content, on the other hand derives from the basic obligation to trans- 92. It must be added that Article 1(g), pose Directive 89/48. It is therefore necess- paragraph 3, of 89/48, as a provision on ary to adopt implementing provisions spe- the determination of the detailed appli- cific to the profession. In relation to the cation, expressly refers to the 'rules of aptitude test for lawyers from other Community law'. These include the prin- Member States, it would at least be necess- ciples of legal certainty and clarity. 30 ary to lay down a list of subjects 'knowl- edge of which is essential in order to be able 30 — See the judgment in Case C-360/87 Commission v Italy to exercise the profession in the host [1991] ECR I-791, paragraph 12.

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93. The rule in Article 8 of the 1992 relevant here relating to the recognition of Legislative Decree does not therefore qual- professional qualifications. ify as a 'determination of the detailed application' for the purposes of Directive 89/48. Apart from this, it does not lay down to a sufficient extent the remaining provisions of the directive. 31

96. It follows from all the foregoing that by failing to determine the detailed application of the aptitude test with sufficient preci- sion, the Italian Republic has not com- pletely transposed Directive 89/48. 94. Because the 1992 Legislative Decree does not regulate the scope of the compet- ent authorities' discretion clearly, 32 the persons concerned, in this case the appli- cants, would be left in 'a state of uncer- tainty as to the extent to which they may rely on Community law'. 33

99. In view of the above, I propose that the Court:

(1) declare that,

— by maintaining, contrary to Article 59 of the EC Treaty (now, after amendment, Article 49 EC), a general prohibition whereby lawyers established in other Member States and practising in Italy cannot have a particular infrastructure,

— by requiring members of the Bar to reside in the judicial district of the court to which the Bar at which they are enrolled is attached, contrary to Article 52 of the EC Treaty (now, after amendment, Article 43 EC), and

— by incompletely transposing Council Directive 89/48/EEC of 21 De- cember 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, inasmuch as rules have not been laid down which determine with sufficient precision the conduct of the aptitude test, I - 2259

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