Keywords
Summary

Keywords

1. Freedom of movement for persons – Freedom of establishment – Lawyers – Practice of the profession on a permanent basis in a Member State other than that in which the qualification was obtained – Directive 98/5

(European Parliament and Council Directive 98/5, Art. 9, second para.)

2. Freedom of movement for persons – Freedom of establishment – Lawyers – Practice of the profession on a permanent basis in a Member State other than that in which the qualification was obtained – Directive 98/5

(European Parliament and Council Directive 98/5, Arts 3, 4 and 5(3))

Summary

1. Article 9 of Directive 98/5 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, which provides that a remedy must be available before a court or tribunal in accordance with the provisions of domestic law against decisions of the competent authority of the host Member State which refuses to register a lawyer who wishes to practise there under his home-country professional title precludes an appeal procedure in which such a decision must be challenged at first instance before a body composed exclusively of lawyers practising under the professional title of the host Member State and on appeal before a body composed for the most part of such lawyers, where the appeal before the supreme court of that Member State permits judicial review of the law only and not the facts.

In order to ensure effective judicial protection of the rights laid down in Directive 98/5, the body called upon to hear appeals against decisions refusing registration must be a court or tribunal as defined by Community law and fulfil a certain number of criteria such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes , whether it applies rules of law and its independence and impartiality.

In that connection, the concept of independence, which is inherent in the task of adjudication, involves primarily an authority acting as a third party in relation to the authority which adopted the contested decision. Furthermore, the concept of independence requires, first, that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them. Second, it is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject-matter of those proceedings. Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body, in order to dismiss any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it.

Finally, Article 9 of Directive 98/5, although it does not preclude appeal proceedings being brought before a body which is not a court or tribunal, does not provide that a legal remedy may be open to the person concerned only after all other remedies have been exhausted. In any event, where an appeal before a non-judicial body is provided for by national law, Article 9 requires actual access within a reasonable period to a court or tribunal as defined by Community law, which is competent to give a ruling on both fact and law.

(see paras 44, 47-53, 60-62, operative part 1)

2. Article 3 of Directive 98/5 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 precludes Member States from making the registration of a lawyer with the competent national authority of a Member State who has obtained his qualifications in another State and who wishes to practise under his home country professional title subject to a prior examination of his linguistic proficiency.

The Community legislature, in that article, carried out a complete harmonisation of the prior conditions for the exercise of the right conferred by Directive 98/5, by providing that presentation to the competent authority of the host Member State of a certificate attesting to registration with the competent authority of the home Member State is the only condition to which registration of the person concerned in the host Member State may be subject, enabling him to practise there under his home-country professional title.

The Community legislature, with a view to making it easier for a particular class of migrant lawyers to exercise the fundamental freedom of establishment, did not opt for a system of prior testing of the knowledge of the persons concerned.

However, that exclusion of a system of prior testing of the knowledge, particularly of languages, for European lawyers is accompanied in Directive 98/5 by a set of rules intended to ensure, to a level acceptable in the Community, the protection of consumers and the proper administration of justice.

(see paras 65-67, 69, 71, 77, operative part 2)