C-313/01

OPINION OF MRS STIX-HACKL — CASE C-313/01

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 20 March 2003 1

I — Introduction II — Legal framework

A — Community law

2. The relevant provisions in the present case are those relating to freedom of establishment and freedom to provide ser- vices and Directives 89/48 and 98/5. 1. The present proceedings concern recog- nition of a 'maîtrise en droit', obtained in France, for the purpose of enrolment in a register of trainee lawyers in Italy. The case concerns the interpretation of freedom of establishment, freedom to provide services, C o u n c i l D i r e c t i v e 8 9 / 4 8 / E E C of 21 December 1988 on a general system 1. Directive 89/48 for the recognition of higher-education diplomas awarded on completion of pro- fessional education and training of at least three years' duration (hereinafter 'Directive 89/48') 2 and Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of 3. Directive 89/48 introduced a general the profession of lawyer on a permanent system for the recognition of higher-edu- basis in a Member State other than that in cation diplomas awarded on completion of which the qualification was obtained (here- professional education and training of at inafter 'Directive 98/5'). 3 least three years' duration. Article 2 pro- vides that the directive is to apply to any national of a Member State wishing to 1 — Original language: German. pursue a regulated profession in another 2 — OJ 1989 L 19, p. 16. Member State in a self-employed capacity 3 — OJ 1998 L 77, p. 36. or as an employed person.

— which has been awarded by a competent authority in a Member The following shall be treated in the same State, designated in accordance way as a diploma, within the meaning of with its own laws, regulations or the first subparagraph: any diploma, cer- administrative provisions; tificate or other evidence of formal qualifi- cations or any set of such diplomas, certificates or other evidence awarded by a competent authority in a Member State if it is awarded on the successful completion of education and training received in the Community and recognised by a competent — which shows that the holder has authority in that Member State as being of successfully completed a post-sec- an equivalent level and if it confers the ondary course of at least three same rights in respect of the taking up and years' duration, or of an equivalent pursuit of a regulated profession in that duration part-time, at a university Member State; or establishment of higher edu- cation or another establishment of similar level and, where appropri- ate, that he has successfully com- pleted the professional training required in addition to the post- secondary course, and

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(c) a regulated profession: the regulated 'Where, in a host Member State, the taking professional activity or range of activ- up or pursuit of a regulated profession is ities which constitute this profession in subject to possession of a diploma, the a Member State; competent authority may not, on the grounds of inadequate qualifications, ref- use to authorise a national of a Member State to take up or pursue that profession on the same conditions as apply to its own nationals:

— which have prepared the holder for the pursuit of his profession. 7. Directive 98/5 applies to both self-em- ployed and employed persons. The second recital states:

The following shall be treated in the same way as the evidence of formal qualifi- cations referred to in the first subpara- graph: any formal qualifications or any set 'Whereas, pursuant to Council Directive of such formal qualifications awarded by a 89/48/EEC of 21 December 1988 on a competent authority in a Member State if it general system for the recognition of is awarded on the successful completion of higher-education diplomas awarded on training received in the Community and is completion of professional education and recognised by that Member State as being training of at least three years' duration, a of an equivalent level, provided that the lawyer w h o is fully qualified in one other Member States and the Commission Member State may already ask to have his have been notified of this recognition.' diploma recognised with a view to estab- lishing himself in another Member State in order to practise the profession of lawyer there under the professional title used in that State; whereas the objective of Direc- tive 89/48/EEC is to ensure that a lawyer is 6. Article 4 of Directive 89/48 permits the integrated into the profession in the host host State to make the taking up of a Member State, and the directive seeks regulated profession subject to certain con- neither to modify the rules regulating the ditions. It provides that the host State may profession in that State nor to remove such 'require the applicant: a lawyer from the ambit of those rules'.

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13. Article 8 of Decree-Law N o 1578/33 A person shall not be entitled to practise at provides: the bar or to pursue the activities referred to in subparagraph 2 above unless he has taken an oath in the following form before the President of Tribunals for the district in which he is registered as a trainee law- yer:...'

'Any person who successfully completes the academic study of law and the period of practical training provided for in Article 17 shall, on application and production of a 14. Article 17(1) of Decree-Law N o 1578 certificate by the lawyer in whose chambers provides: he has worked, be registered in a special register maintained by the Bar Council for the area where he resides, and shall be subject to the disciplinary powers of that Council. 'In order to be enrolled as a member of the Bar, a person must:

One year after his registration in the (1) be an Italian national or an Italian from register referred to in subparagraph 1, a a region not politically linked to Italy; trainee lawyer shall be authorised to prac- tise at the bar of the courts for the district to which the local bar which maintains the register belongs, such authorisation to last no more than six years and to be restricted to proceedings that fell within the jurisdic- tion of the pretore prior to the entry into force of the Decreto legislativo (Legislative Decree) implementing Law N o 254 of 16 July 1997. (4) hold a diploma in law ("laurea in giurisprudenza") issued or confirmed by an Italian university;

Subject to those restrictions, in criminal proceedings before those tribunals trainee (5) after obtaining that diploma, have com- lawyers can be instructed to appear as duty pleted a period of practice ("periodo di defence lawyer, act as prosecutor and lodge pratica") of at least two consecutive years appeals on behalf of a defendant or the in the office of an avvocato, involving prosecution. attendance at hearings in civil and criminal

3. Diplomas shall be recognised if they 'Nationals of Member States of the Euro- certify that the applicant has successfully pean Community shall be treated in the completed a post-secondary course of at same way as Italian citizens for the pur- least three years' duration... at a university poses of enrolment as a member of the Bar or establishment of higher education or as referred to in Article 17 of Royal another establishment of similar level.' Decree-Law N o 1578 of 27 November 1933 ... on the organisation of the pro- fession of avvocato.' 6 — GURI No 40 of 18 February 1992, p. 6.

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17. Article 2 of Decree N o 115 provides: 18. Article 6 lays down the conditions for recognition and provides for an aptitude test in respect of specified legal professions.

'For the purposes of this Decree, the following shall be considered to be pro- fessions: 19. Article 11 designates, by professional groups, the authorities competent to enter- tain applications for recognition. As regards the legal professions, only the activities of a lawyer are regulated. (a) activities the pursuit of which requires Article 12 lays down how an application enrolment in a register or list main- for recognition is to be made to the tained by an authority or public body, competent minister. where enrolment is conditional upon completion of professional training s a t i s f y i n g t h e r e q u i r e m e n t s of Article 1(3);

20. As is apparent from the judgment of the Court in Case C-145/99 Commission v Italy, 7points 1, 4 and 5 of Article 17(1) of Decree-Law N o 1578 (requirement of (b) e m p l o y m e n t of public or private nationality) were repealed by Article 10 of employees, where by virtue of laws, Law N o 146/94, and the provisions relating regulations or administrative provi- to possession of an Italian diploma in law sions the taking up of such is con- and completion of a period of practical ditional upon completion of professio- training were repealed by Decree N o 115. nal training satisfying the requirements As the Italian Government made clear at of Article 1(3); the oral hearing, although point 4 of Article 17(1) no longer applies to lawyers, it still applies to trainee lawyers.

III — Facts, main proceedings and ques- tion referred 25. By decision dated 12 May 2000, her appeal was dismissed by the Consiglio 22. On 27 October 1999, Christine Valia Nazionale Forense (National Bar Council), Morgenbesser, a French national resident on the ground that Ms Morgenbesser had in Italy, applied to the Consiglio dell'Or- not been entitled to pursue the profession dine degli Avvocati di Genova (Genoa Bar of lawyer in France, and that she did not Council) for enrolment in the register of have the professional title necessary to trainee lawyers. For that purpose, she entitle her to enrolment as a trainee lawyer. presented documentation to show that she had obtained in France the academic qualification of 'maîtrise en droit' in 1996. Thereafter she had practised as a lawyer in Paris chambers for eight months, before commencing practice in chambers in Genoa in April 1998. 26. Ms Morgenbesser's request for recog- nition in Italy of her academic qualification was rejected by the Minstero della Giustizia (Ministry of Justice), which declared itself 2 3 . H e r a p p l i c a t i o n w a s rejected by not competent on the ground that it was an decision of 4 November 1999. In that academic qualification in issue and not decision, the Consiglio considered that the recognition of the exercise of the profession application was precluded by point 4 of of lawyer. The University of Genoa made Article 17(1) of Decree-Law N o 1578 of confirmation of her French qualification 27 November 1933, in accordance with dependent on Ms Morgenbesser following which enrolment required, inter alia, pos- a course, passing 13 examinations and session of a diploma in law issued or submitting a thesis; Ms Morgenbesser was confirmed by an Italian university. exempted from only six mandatory subjects and seven optional ones. Ms Morgenbesser appealed against the decision of the uni- versity to the Tribunale Amministrativo Regionale (Regional Administrative 24. On 2 December 1999, Ms Morgen- Court), Livorno. This case is currently besser appealed against that decision in pending before the Consiglio di Stato accordance with the legislative provisions, (Council of State).

28. Ms Morgenbesser requests that she be enrolled in the register of trainee lawyers, notwithstanding that her academic qualifi- cation has not been approved in Italy, on A — Submissions of the parties the ground that the academic qualification she obtained in France ought to be recog- nised in Italy automatically. 30. Ms Morgenbesser submits that the activity of a trainee lawyer constitutes a 'profession' for the purposes of Directive 89/48, even where the activity consists in professional training with a view to pur- 29. By order dated 19 April 2 0 0 1 , which suing the profession of lawyer in the future. reached the Court Registry on 8 August She reaches this conclusion on the basis of 2 0 0 1 , the Corte suprema di cassazione Article 8 of Decree-Law N o 1578, and refers the following question to the Court submits that the area of activity of a trainee of Justice of the European Communities for lawyer comprehends independent manage- a preliminary ruling: ment of ongoing legal proceedings, giving clients legal advice and representing and defending them in specific legal proceed- ings, and that she is subject to the pro- fessional rules which apply to lawyers. Ms Morgenbesser also submits that there is an 'Irrespective of recognition and confirma- analogy with the case-law of the Court to tion of equivalence, can a diploma issued to the effect that a trainee is to be classified as a Community national in a Member State a worker. 9 (in this case, France) automatically be relied upon for the purposes 8 [of obtaining enrolment in the register of persons under- taking the necessary period of practice for admission to the bar] in another Member 31. Ms Morgenbesser is of the view that State (in this case Italy), by virtue of the the necessity for prior recognition of her rules of the EC Treaty... on freedom of diploma by an Italian university (as laid establishment and the freedom to provide

33. Should Directive 89/48 not apply, Ms Morgenbesser submits in the alternative that Article 43 EC has been infringed. If Directive 89/48 were applicable, the com- petent authority could not impose the 36. The Danish Government submits that a additional condition that diplomas from trainee lawyer cannot automatically rely on other Member States be recognised by a diploma awarded by another Member national authorities: instead, such diplomas State in order to claim enrolment in a would automatically be equivalent, pro- professional register. vided they satisfied the requirements of the directive. The competent authority would be required to assess whether a diploma awarded by a different Member State satisfied the provisions of the host Member State relating to knowledge and qualifi- 37. It states that a person seeking regis- cations. If they satisfied those provisions, tration in Denmark as a trainee lawyer has to obtain confirmation from the University of Copenhagen that the diploma he has 10 — Case C-234/97 [1999] ECR I-4773. been awarded in a different Member State

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39. The Italian Government submits that the requirements for admission to the profession of lawyer in Italy (namely com- pletion of academic legal studies, comple- tion of two years' traineeship and passing 4 1 . The Commission maintains that, in this of an examination) guarantee the profes- case, the administrative practice of the sional quality of lawyers. Not even the Italian universities in assessing whether provisions of the EC Treaty relating to diplomas awarded in other Member States freedom of establishment and freedom to are equivalent do not allow any distinction provide services imply that a diploma is to to be drawn by reference to the legal system be recognised automatically in another the foreign diploma is from. That, it Member State. The Italian Government submits, is contrary to the judgment in argues that the activity of a trainee lawyer Vlassopoulou, which requires the compet-

11 — Case C-340/89 [1991] ECR I-2357. 12 — Case C-55/94 [1995] ECR I-4165.

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ent authorities of the Member State to the case at issue in the main proceedings, undertake an individual comparison of the attendance at a course, the passing of 13 diploma in question with the requirements examinations and the submission of a thesis laid down by national law. were required.

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47. As stated in the second recital of Member State requires trainees to sit, but Directive 98/5, only a lawyer who is fully have merely completed their academic qualified is entitled to establish himself in qualification and obtained some practical another Member State. experience.

48. Article 1(1) of Directive 98/5 states that the purpose of the directive is to 'facilitate 52. Therefore, Directive 98/5 does not practice of the profession of lawyer on a apply in a case such as the present. permanent basis'. This directive therefore supplements Directive 89/48.

2. Directive 89/48 49. However, according to Article 1(2), Directive 98/5 applies only to persons authorised to pursue their professional activities under specified professional titles. As regards persons pursuing professional activities in France, only those authorised 53. It must next be considered whether to pursue their activity under the title of Directive 89/48 is applicable. In the present 'avocat' come within the scope of the case, this depends on whether the area of directive. activity of a trainee lawyer in Italy con- stitutes a 'regulated profession' for the purposes of the directive.

50. Thus, Directive 98/5 does not apply to persons still undergoing training, that is persons who have yet to fulfil all the conditions for taking up the profession of 54. According to Article 1(c) of Directive lawyer. 89/48, 'regulated profession' means 'the regulated professional activity or range of activities which constitute this profession in a Member State'.

56. The profession of trainee lawyer does not as such exist throughout the Commu- nity, but is defined by different Member States as comprising different activities: in 59. According to the case-law of the Court this way, a profession can be subject to of Justice, 1 7 a profession is 'regulated' certain rules in only one Member State, in a where the right to take up or pursue the number of Member States, or in all the activity, and thus the profession, is gov- Member States. The term 'regulated pro- erned by legal provisions. Such legal regu- fession' 1 4 does not refer exclusively to lation can be direct or indirect. It is direct possession of a diploma or academic where the laws, regulations or adminis- title, 1 5 but is characterised by the fact that trative provisions of the host Member State it can also depend on other evidence of include provisions whereby the professio- qualifications. n a l a c t i v i t y c o n c e r n e d is e x p r e s s l y restricted to persons who fulfil certain conditions and entry to the profession is denied to those who do not. 18

57. It is for the Member States concerned to decide whether to regulate an activity (that is, to make it subject to certain national provisions). 16

60. Before examining whether the activities of a trainee lawyer in Italy constitute a regulated profession for the purposes of 58. That does not affect the fact that the Directive 89/48, it is helpful first to con- term 'regulated profession' is to be given an sider the profession of lawyer more closely. autonomous Community interpretation. At The activities of trainee lawyers in Italy can the same time, the question whether spe- then be compared and analysed on that basis.

66. On that basis, if one applies the (ad- mittedly broad) criteria the Court has laid 63. Even in the Member States in which a down as regards the term 'regulated activ- period of practical training is required, it is ity' 2 2 to the activities of trainee lawyers in subject to different provisions. Thus, in Italy, it is apparent that their activities are most Member States it is regulated by the to be regarded as regulated, since the taking relevant professional body, but in others it up and pursuit of those activities is subject is regulated and assessed by State auth- to certain legal provisions. That applies not orities. Where practical training is necess- only to the activities of those who have a ary for the pursuit of a specific profession, 'patrocinio' but also for those who are a university qualification on its own, with- merely trainees. out the necessary practical training, cannot be regarded as the final product. Thus, it 20 — Hildegard Schneider, Die Anerkennung von Diplomen in der Europäischen Gemeinschaft, p. 172. 19 — Jacques Pertek, 'Les professions juridiques et judiciaires 21 — See Jacques Pertek, General Recognition of Diplomas and dans l'Union européenne', Droit administratif et droit Free Movement of Professionals, 1992, p. 7. communautaire. 22 — See the case-law cited in footnotes 17 and 18.

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69. In her submissions, Ms Morgenbesser relied on the scope of the services trainee 3. Primary law obligations lawyers are authorised to provide, but this is limited by comparison with qualified lawyers, and is therefore another reason for not regarding trainee lawyers as belonging to a regulated profession for the purposes of Directive 89/48. 72. Since neither Directive 89/48 nor Directive 98/5 is applicable to the activity 23 — See, to the contrary, Görlitz, Gemeinschaftsrechtliche Diplomanerkennungspflichten und Zugang zum deutschen of trainee lawyers in the present case, the Vorbereitungsdienst, Europarecht, 2000, p. 836, at 843 ff., who classifies the German traineeship at least as pro- provisions of primary law must be con- fessional activity. sidered.

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73. The question refers to Articles 10 EC, wise, the source of the remuneration is not 12 EC, 14 EC, 39 EC, 43 EC and 149 EC. decisive; nor is the fact that under national It is necessary to consider the specific law the employment relationship concerned provisions of the Treaty before the general is 'sui generis'. 27 ones (namely Articles 10 EC, 12 EC and 14 EC).

76. The present case concerns a very spe- cific set of facts, involving not the admis- sion of a fully qualified trainee lawyer from one Member State to the legal professional examinations of another Member State, but the completion of professional legal train- ing commenced in another Member State. 74. Although there is an abundance of case-law as regards the profession of law- yer, including in Italy, this is the first case concerning the position of a trainee lawyer, that is to say of a trainee. This suggests one 77. Thus, the case concerns admission to should start with the case-law of the Court practical training in the host State and the on the activities of trainees. question whether and, if so, on what conditions the host State is under an obligation to admit persons with a univer- sity qualification from a different Member State to practical training.

pursued in a way which causes them to fall 82. As a matter of principle, a distinction within the law on the freedom to provide must be drawn between two types of services, the question is whether free move- system for recognising diplomas and other ment of workers or freedom of establish- qualifications. ment applies. During the proceedings before the Court, it was frequently stated that Ms Morgenbesser's case concerned freedom of establishment, and this is there- fore the freedom to be considered first in the following analysis. This approach is 83. The first system, which is provided for also suggested by the parallels in this regard by the specific or vertical directives, pro- with the facts in Gebhard. 28 vides for automatic recognition following a purely formal assessment of whether the diploma for which recognition is sought is included in the list of diplomas that must be recognised.

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older in its application to the legal pro- whether the knowledge acquired by the fessions. 3 2 In Vlassopoulou, the Court had candidate, either during a course of study to consider the case of a Greek lawyer who or by way of practical experience, is sought admission to the German legal sufficient to show possession of knowledge profession in reliance specifically on which is lacking'. 34 Thus, the host State k n o w l e d g e of G e r m a n law a c q u i r e d has to enact and apply a suitable pro- through courses of study and practical cedure. professional experience in Germany, but who had been refused on the ground that she did not have the State exam.

(a) Recognition of an academic qualifi- cation 86. The present case concerns recognition of a university degree obtained in the home State and of a period of practical training completed there.

89. In this context, therefore, the first question to be considered is whether a 'maîtrise en droit' obtained in France falls 87. In this connection, it is appropriate to within the host State's obligation to take recall that the Court has consistently held matters into account. The specific point is that the exercise of the right of establish- not recognition of the academic title as ment guaranteed by Article 43 EC would such, but recognition of academic diplomas be hindered 'if the national rules in ques- for professional purposes. tion took no account of the knowledge and qualifications already acquired by the per- son concerned in another Member State'. 3 3

90. Even though the 'maîtrise en droit' obtained in France is not a diploma guar- 88. From that it follows that 'the compet- anteeing direct admission to the profession ent n a t i o n a l a u t h o r i t i e s m u s t assess of lawyer, it is none the less a diploma that certifies certain knowledge and qualifi- cations. 32 — Case 71/76 Thieffry [1977] ECR 765, paragraphs 19 ff., and Gebhard (cited above, footnote 12), paragraph 38. 33 — Vlassopoulou (cited above, footnote 11), paragraph 15, and Case C-319/92 Haim v Kassenzahnärztliche Vere- 34 — Fernández de Bobadilla (cited above, footnote 10), para- inigung Nordrhein [1994] ECR I-425, paragraph 26. graph 33.

93. It is for the national court and, as the case may be, the competent national auth- orities to assess, in the light of all the 96. However, in assessing equivalence (that relevant documents and the foregoing con- is in comparing qualifications and practical siderations, whether Ms Morgenbesser's experience), Member States are entitled to diploma is to be recognised as equivalent take into account objective differences as to a corresponding Italian diploma. 3 8 regards both the legal framework appli- cable in the home Member State for the profession in question and the profession's 35 — Vlassopoulou (cited above, footnote 11), paragraph 17 area of activity there. and Case C-104/91 Borrell and Others [1992] ECR 1-3003, paragraph 12; and see Heylens (cited above, footnote 30), paragraph 13. 36 — Borrell (cited above, footnote 35), paragraph 11; Case 39 — Vlassopoulou (cited above, footnote 11), paragraph 2 1 ; C-238/98 Hocsman [2000] ECR I-6623, paragraph 2 3 ; Haim (cited above, footnote 33), paragraph 28; and and Case C-31/00 Dreessen [2002] ECR I-663, paragraph Hocsman (cited above, footnote 36), paragraph 2 3 . 24. 40 — Vlassopoulou (cited above, footnote 11), paragraph 17, 37 — Case C-19/92 [1993] ECR I-1663, paragraphs 20 ff. and Borrell (cited above, footnote 35), paragraph 12; see 38 — See Hocsman (cited above, footnote 36), paragraph 39. also Heylens (cited above, footnote 30), paragraph 13.

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99. They are not permitted to give an absolute, unconsidered refusal to undertake a substantive comparative assessment, on the basis of formal criteria such as, for example, the requirement to have a degree from an Italian university, as has happened 102. In the light of that conclusion, it is not in the present case. necessary to consider the interpretation of Articles 10 EC, 12 EC, 14 EC, 39 EC and 149 EC. 41 — Vlassopoulou (cited above, footnote 11), paragraph 19; Borrell (cited above, footnote 35), paragraph 14; Fern- ández de Bobadilla (cited above, footnote 10), paragraph 32; and Hocsman (cited above, footnote 36), paragraph 42 — See Fernandez de Bobadilla (cited above, footnote 10), 36. paragraph 34.

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V — Conclusion

103. For the foregoing reasons, I propose that the Court should answer the question as follows:

Article 1 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 is to be interpreted as meaning that the activities of an Italian trainee lawyer are not to be regarded as a 'regulated profession'.