Judgment of the Court of Justice of the European Union (Grand Chamber) of 17 July 2014 in joined cases C-58/13 and C-59/13 Angelo Alberto Torresi (C-58/13) and Pierfrancesco Torresi (C-59/13) v Consiglio dell’Ordine degli Avvocati di Macerata (ECLI:EU:C:2014:2088)
- The Court of Justice of the European Union (the ‘Court’) has competence to answer the preliminary reference of the Consiglio Nazionale Forense (the ‘CNF’), the Italian national bar council, since it qualifies as a ‘court or tribunal’ within the meaning of Article 267 of the Treaty on the Functioning of the European Union (the ‘TFEU’).
- The Court interpreted Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than the one in which the qualification was obtained (‘Directive 98/5/EC’) so that it does not constitute an abuse of law if a citizen of a Member State who obtained a university law degree in this Member State travels to another Member State in order to acquire there the professional qualification of lawyer taking advantage of the more favourable regulation of that Member State and subsequently returns to the Member State of his nationality in order to practise there the legal profession under the professional title obtained in the Member State where that professional qualification was acquired.
- Article 3 of Directive 98/5/EC is not invalid and does not infringe the national identities of the Member States, inherent in their fundamental political and constitutional structures, as set out by Article 4 (2) of the Treaty on European Union (the ‘TEU’), by allowing Italian citizens who obtained their professional legal qualification somewhere else to practise their profession in Italy.
After having obtained a law degree in Italy, Angelo Alberto Torresi and Pierfrancesco Torresi moved to Spain where they also obtained a Spanish law degree. In Spain, they were registered as lawyers (abogado) in the register of the Bar of Santa Cruz de Tenerife. However, shortly after this they requested their registration in the register of lawyers qualified abroad from the competent local bar council (the Consiglio dell’ Ordine degli Avvocati di Macerata) in Italy in order to be able to practice the legal profession in Italy under their professional legal title obtained in Spain. While in Italy those who wish to gain admission to the legal profession have to pass a state examination, in Spain no such requirement has existed by this year. The local bar council did not decide on the application within the deadline, therefore the applicants turned to the CNF, the national bar council, requesting their registration based on Directive 98/5/EC. According to Paragraph (1) of Article 3 of Directive 98/5/EC, ‘a lawyer who wishes to practise in a Member State other than that in which he obtained his professional qualification shall register with the competent authority in that State.’ Paragraph (2) adds that ’the competent authority in the host Member State shall register the lawyer upon presentation of a certificate attesting his registration with the competent authority in the home Member State.’ Thus, the applicants argued that the single precondition of their registration in Italy was the presentation of a certificate attesting the registration with the competent Spanish authority. The CNF decided to request a preliminary ruling from the Court concerning the interpretation of Directive 98/5/EC. By the first question, the CNF asked whether it is compatible with Article 3 of Directive 98/5/EC if on the grounds of abuse of law the competent authorities of a Member State refuse the registration in the register of lawyers qualified abroad of Union citizens, who after having obtained a law degree in a Member State, have travelled to another Member State in order to acquire there the professional qualification and have subsequently returned to the former Member State in order to practise there the legal profession under the professional title obtained in the Member State where the professional qualification was obtained. The second question addressed the validity of Article 3 Directive 98/5/EC taking into account the requirement of the respect of the national identities of the Member States as laid down by Article 4 (2) TEU. In answering the above questions, the Court followed by and large the opinion of Advocate General Wahl delivered on 10 April 2014 (ECLI:EU:C:2014:265).
Before turning to the two preliminary questions, the Court had to examine whether it had jurisdiction under Article 267 TFEU. The applicants argued that the Court has no jurisdiction as the CNF is not a ‘court or tribunal’ within the meaning of Article 267 TFEU. They relied on two arguments: first, maintaining the registers of lawyers is not a judicial, but rather a purely administrative function and secondly, the CNF is not an independent and impartial body. Interestingly, almost two decades before the Torresi case the Court has already admitted a preliminary reference from the CNF in the well-known Gebhard case (C‑55/94, EU:C:1995:411). The Court found that the CNF exercises judicial activity, as its jurisdiction to rule on remedies brought against decisions passed by local bar councils is based on statute, this jurisdiction is compulsory and the CNF renders enforceable decisions in such proceedings. The CNF has to decide whether the refusal of the registration by the local bar council is well-founded and gives its ruling after deliberation in chambers, issuing a decision which has the form and the content identical to a judgment delivered in the name of the Italian people. The Court also established that CNF complies with the requirements of independence and impartiality. Among others, the Court pointed out that the CNF exercises its functions in an autonomous way, it is not subordinate to any other body and it does not take orders or instructions from any source whatsoever. It also added that albeit the members of CNF are lawyers elected by members of the various local bar councils, the membership of a local bar council is incompatible with the membership in the CNF.
As to the first question, the Court had to answer whether Article 3 of Directive 98/5/EC precludes that the competent authorities of a Member State refuse the registration of a lawyer in the register of lawyers qualified abroad on the grounds of abuse of law if having obtained a law degree in this Member State the lawyer concerned moved to another Member State in order to acquire the professional legal qualification there, and have subsequently returned to the former Member State with a view to practising there the legal profession under the professional title obtained in the Member State where the professional qualification was obtained. Interpreting Directive 98/5/EC, the Court laid down that the presentation to the competent authority of the host Member State of a certificate attesting the registration with the competent authority of the home Member State is the single condition to which registration of the person concerned in the host Member State may be subject, enabling him to practise in the latter Member State under his home-country professional title. The registration may not be made dependent, for example, upon the completion of a period of practical experience as a lawyer in the Member State, where the professional qualification was acquired. Although referring back to its previous judiciary practice (Halifax and Others, C‑255/02, EU:C:2006:121 and SICES and Others, C‑155/13, EU:C:2014:145) the Court acknowledged that it is not possible to rely on EU law for abusive or fraudulent purposes, it found that in the present case the Italian lawyers did not act in an abusive way, but they lawfully avail of the provisions of Directive 98/5/EC. The Court stated that ’the right of nationals of a Member State to choose, on the one hand, the Member State in which they wish to acquire their professional qualifications and, on the other, the Member State in which they intend to practise their profession is inherent in the exercise, in a single market, of the fundamental freedoms guaranteed by the Treaties.’ Choosing another Member State to acquire the professional legal qualification there in order to benefit from a more lenient legislation does not constitute in itself an abuse of law.
Albeit the Court did not find an abuse of law in the present case, in line with its earlier case law it confirmed that the establishment of abuse of law presupposes the presence of an objective and a subjective element. The objective element means that despite formal observance of the provisions of EU law, the purpose of those rules has not been achieved, while the subjective element refers to an ’intention to obtain an improper advantage from the EU rules by artificially creating the conditions laid down for obtaining it.’
The second question concerned the validity of Article 3 of Directive 98/5/EC. The CNF took the view that Article 3 of Directive 98/5/EC leads to the circumvention of the Italian Constitution that requires passing a state exam for exercising the legal profession as Directive 98/5/EC allows Italian citizens who obtained their professional legal qualification somewhere else to practise the legal profession in Italy. Accordingly, Article 3 of Directive 98/5/EC would infringe the Italian Constitution in violation also Article 4 (2) TEU, the national identity clause, that would render Article 3 invalid. Pursuant to the first sentence of Article 4 (2) TEU, the Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. The Court shortly addressed this question, by noting that Article 3 of Directive 98/5/EC in itself does not regulate the access to the legal profession nor the practice of that profession under the professional title of the host Member State. In the given case, the Italian lawyers intended to practise in Italy using their Spanish title ‘abogado’. The Court concluded that an application for registration in the register of lawyers qualified abroad does not constitute a circumvention of the rules of the host Member State on the access to the legal profession, even if the lawyer concerned travelled to another Member State to gain profession qualification there and then returned to his Member State of nationality in order to start practising there.
The views expressed above belong to the author and do not in any way represent the views of the HAS Centre for Social Sciences.