61987J0038

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Member States - Obligations - Failure to fulfil - Retention of a national provision leading to discrimination against nationals of the other Member States as regards the conditions for the exercise of certain professions - Justification based on the existence of administrative practices ensuring the application of the Treaty - Unacceptable

( EEC Treaty, Arts 52, 59 and 169 )

The fact that the legislation of a Member State is silent as regards the right of nationals of the other Member States to become ordinary members of a professional body, where such membership is a precondition for and facilitates access to the professions in question and their exercise, gives rise to an ambiguous state of affairs and keeps the persons concerned in a state of uncertainty as regards the possibility of relying on the provisions of Articles 52 and 59 of the Treaty, which have direct effect . The retention of legislation with such a lacuna therefore amounts to a failure by the State in question to comply with its obligations under the Treaty, and mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of those obligations .

A Member State cannot plead provisions, practices or circumstances in its internal legal system to justify failure to comply with its obligations under Community law .

In Case 38/87

Commission of the European Communities, represented by G . Kremlis, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at his office, Jean Monnet Building, Kirchberg,

applicant,

v

Hellenic Republic, represented by Spyros Zissimopoulos, an expert adviser to the European Communities Department of the Ministry of Foreign Affairs, assisted by Evi Skandalou, a lawyer in the Special Legal Department of the European Communities Department of the Ministry of Foreign Affairs, with an address for service in Luxembourg at the Greek Embassy, 117 Val Sainte-Croix,

defendant,

APPLICATION for a declaration that by requiring Greek nationality as a condition of access to the professions of architect, civil engineer, surveyor and lawyer and for the exercise thereof, and by failing to adapt the relevant legislation to the provisions of Community law, the Hellenic Republic has failed to fulfil its obligations under Articles 52 and 59 of the EEC Treaty,

THE COURT

composed of Lord Mackenzie Stuart, President, O . Due, J . C . Moitinho de Almeida and G . C . Rodríguez Iglesias ( Presidents of Chambers ), T . Koopmans, U . Everling, Y . Galmot, C . Kakouris and T . F . O' Higgins, Judges

Advocate General : M . Darmon

Registrar : B . Pastor, Administrator

having regard to the Report for the Hearing and further to the hearing on 2 March 1988, at which the defendant was represented by Nikos Frangakis, Legal Adviser to the Permanent Representation of Greece to the European Communities, assisted by Evi Skandalou,

after hearing the Opinion of the Advocate General delivered at the sitting on 24 March 1988,

gives the following

Judgment

1 By an application received at the Court Registry on 5 February 1987 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that by requiring Greek nationality as a condition of access to the professions of architect, civil engineer, surveyor and lawyer and for the exercise thereof, and by failing to adapt the relevant legislation to the provisions of Community law, the Hellenic Republic has failed to fulfil its obligations under Articles 52 and 59 of the EEC Treaty .

2 Reference is made to the Report for the Hearing for a fuller account of the national provisions at issue ( in particular Article 4 ( 2 ) of Decree-Law No 2728 of 12 November 1953 and Article 2 of Law No 1486 of 17 October 1984 ), the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

Professions of architect, civil engineer and surveyor

3 The Commission maintains that a person holding the required qualifications and the necessary authorization cannot exercise these professions in the Hellenic Republic unless that person is an ordinary member of the professional body of architects, civil engineers, etc ., the Technical Chamber of Greece . However, whereas Greek nationals are ordinary members of that body as of right, the Greek legislation does not provide for access by foreigners to that status . There is thus a breach of Articles 7, 52 and 59 of the EEC Treaty, because access to and exercise of the professions in question is not permitted under the same conditions for foreigners as for Greek nationals, even on the assumption that the Technical Chamber may, in the absence of any express prohibition in law, register foreigners as ordinary members .

4 The Hellenic Republic claims that the provisions in question merely impose on Greek nationals an obligation to register with the Technical Chamber, which is obliged to grant such registration, but does not impose any such obligation upon foreigners . However, the Greek legislation permits the registration of foreigners as ordinary members; indeed, that is the interpretation which the Technical Chamber has consistently adopted .

5 It is evident that access to and exercise of the professions in question in the Hellenic Republic are subject in any case and on pain of penalties to registration of the person concerned with the Technical Chamber as an ordinary member . Moreover, it has been established that that status confers certain benefits, especially with regard to recovery of fees, social security and training .

6 Registration as an ordinary member of the Technical Chamber is a precondition for and facilitates access to the professions concerned and their exercise in the Hellenic Republic . Consequently the conditions for registration with that body must be identical for Greek nationals and nationals of the other Member States, in accordance with Articles 52 and 59 of the Treaty, which prohibit in their respective fields of application any discrimination on the ground of nationality .

7 It is apparent that the national provisions in question do not expressly confer on the nationals of other Member States the right to register as ordinary members of the Technical Chamber . Furthermore, the two possibilities of registration for which provision is expressly made, as an ordinary member for certain foreigners of Greek origin and as an honorary member for other foreigners, can be interpreted as exhaustive, as the Commission maintains, thus excluding nationals of the other Member States from the right to register as an ordinary member of the Technical Chamber .

8 The Hellenic Republic' s argument to the effect that the national provisions in question permit the registration of foreigners as ordinary members of the Technical Chamber and that that is the interpretation consistently adopted by that body cannot be accepted .

9 First of all, the fact that the legislation is silent as regards the right of nationals of other Member States to register as ordinary members of the Technical Chamber gives rise to an ambiguous state of affairs and keeps the persons concerned in a state of uncertainty as to the possibility of relying on the abovementioned provisions of the Treaty, which have direct effect . The retention of legislation with such a lacuna therefore amounts to a failure by the Hellenic Republic to comply with its obligations under the Treaty .

10 Secondly, mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty ( judgment of 15 October 1986 in Case 168/85 Commission v Italy (( 1986 )) ECR 2945 ).

11 In addition it should be pointed out that, in reply to the Commission' s reasoned opinion, the Permanent Representation of Greece to the Communities informed the Commission that as regards the discrimination on grounds of nationality which exists in respect of access to the professions in question the national ministries responsible had initiated the procedure for drafting legislative provisions to remove the nationality condition .

12 It must therefore be held that, by maintaining in force provisions which do not expressly uphold the right of nationals of the other Member States to register as ordinary members of the Technical Chamber, where such registration is a precondition for and facilitates access to the professions concerned and the exercise thereof in the Hellenic Republic, the Hellenic Republic has failed to fulfil its obligations under Articles 52 and 59 of the EEC Treaty .

13 That finding relates only to discrimination on grounds of nationality and is therefore without prejudice to the question whether an obligation to register as an ordinary member of the Technical Chamber constitutes, with regard to nationals of the other Member States, a restriction on their freedom to provide services imposed by reason of the fact that they are established in a Member State other than that where the services are to be provided . That question does not come within the terms of the present proceedings .

Profession of lawyer

14 The Commission maintains that access to the profession of lawyer is restricted to Greek nationals by Article 3 of the Decree-Law of 6/8 October 1954 on the Code of Rules concerning the Legal Profession . The Hellenic Republic does not dispute that allegation but claims that as regards access to and exercise of that profession the procedure for adopting legislation to remove the nationality condition laid down in the Code of Rules concerning the Legal Profession is in hand . That process will, however, be somewhat protracted because at the same time it is aimed at standardizing the provisions concerning the equivalence of university qualifications between the different Member States and the preparation of a professional code of practice also applicable to other professions .

15 It is therefore clear that the national provisions to which the Commission objects are incompatible with Articles 52 and 59 of the Treaty .

16 The arguments relied on by the Hellenic Republic in its defence must be dismissed as ill-founded . A Member State cannot rely on provisions, practices or circumstances in its internal legal system to justify its failure to comply with its obligations under Community law ( see in particular the judgment of 12 February 1987 in Case 69/86 Commission v Italy (( 1987 )) ECR 773 ).

17 It must therefore be held that by maintaining in force provisions which make access to the profession of lawyer and the exercise thereof conditional upon the possession of Greek nationality, the Hellenic Republic has failed to fulfil its obligations under Articles 52 and 59 of the Treaty .

Costs

18 Under Article 69 ( 2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . Since the Hellenic Republic has failed in its submissions it must be ordered to pay the costs .

On those grounds,

THE COURT

hereby :

( 1 ) Declares that by maintaining in force provisions which do not expressly uphold the right of nationals of the other Member States to register as ordinary members of the Technical Chamber of Greece, where such registration is a precondition for and facilitates access to the professions of architect, civil engineer and surveyor and the exercise thereof in the Hellenic Republic, the Hellenic Republic has failed to fulfil its obligations under Articles 52 and 59 of the EEC Treaty .

( 2 ) Declares that by maintaining in force provisions which make access to the profession of lawyer and the exercise thereof conditional upon the possession of Greek nationality, the Hellenic Republic has failed to fulfil its obligations under Articles 52 and 59 of the EEC Treaty .

( 3 ) Orders the Hellenic Republic to pay the costs .