The fundamental right of each EU citizen to exercise free movement in his or her search for employment has been reasserted in a recent judgment delivered by the Court of Justice of the European Union.
Returning to a member state in order to practise the profession of lawyer there, under the title obtained in another member state, does not constitute an abuse and is perfectly permissible, the CJEU has asserted.
The EU directive on the establishment of lawyers has the precise objective of facilitating the practice of the profession of a lawyer on a permanent basis, whether in a self-employed or salaried capacity, in a member state other than that in which the professional qualification was obtained. However, as a safeguard for potential clients, this same law provides that, at least initially and until he/she fulfils certain criteria, the profession can be practised only under the home-country professional title.
The directive further stipulates that such a professional title must be expressed in the official language of the home member state, in an intelligible manner and in such a way as to avoid confusion with the professional title of the host member state.
Thus, for example, if an Italian lawyer has obtained his professional qualification in Italy and would like to establish himself in Malta, he must indicate that he is an avvocato. Where a lawyer seeks to exercise such a right of establishment, the competent authority of the member state where the lawyer would like to establish himself/herself must register the lawyer upon presentation of a certificate attesting to his registration with the competent authority in the member state where the lawyer obtained his/her title.
In this particular case, two Italian nationals obtained law degrees in Italy followed by the attainment of a law degree in Spain. They registered as lawyers in the register of the Spanish competent authority and later submitted applications to an Italian Regional Bar Council requesting registration in the ‘special section of the lawyers’ register’ which covers lawyers who hold a title issued in a member state other than Italy and who would like to establish themselves in Italy.
The Regional Bar Council did not uphold their request and the two lawyers filed an action before the Italian National Bar Council seeking a decision on their applications for registration. They claimed that in terms of EU law, the registrations applied for were subject to a single condition, namely the presentation of a certificate attesting to registration with the competent authority in the home member state, in this case, Spain.
Any divergencies in national rules on conditions for registration which could result in obstacles to freedom of movement have been eradicated
Since in their case this condition had been met, they saw no reason as to why the Italian Bar Council should refuse registration. The Regional Bar Council rebutted that the lawyers could not rely on the EU directive on the establishment of lawyers since the purpose of acquiring the title in Spain was to circumvent Italian law governing access to the profession of lawyer. It alleged that this amounted to an abuse of the right of establishment as guaranteed by EU law. The Italian National Bar Council proceeded to seek guidance from the CJEU as to whether such an approach was legal in terms of EU law.
The CJEU reiterated that the objective of the EU directive regulating the establishment of lawyers was precisely that of facilitating the practice of the profession of lawyer on a permanent basis in a member state other than that in which the professional qualification was obtained. To this end, the directive sets up a mechanism for the mutual recognition of the professional titles of migrant lawyers wishing to practise under their home-country title. In this way, any divergences in national rules on conditions for registration which could result in obstacles to freedom of movement have been eradicated and the directive provides for full harmonisation of the conditions applicable to the right of establishment of lawyers.
The CJEU noted that in accordance with previous jurisprudence, the presentation of a certificate attesting to registration in the home member state is the only prerequisite for the registration of a lawyer in the host member state. Upon such registration, the said lawyer would be able to practise in the host member state under his home-country professional title.
The court asserted that a member state is entitled to take the necessary measures in order to prevent its nationals from circumventing its national legislation but it cannot rely on rights granted by EU law in order to counteract abuse.
In a single market economy as the EU one, the right of EU citizens to choose the member state in which they wish to acquire their professional title as well as the member state in which they intend to practise their profession is part and parcel of the exercise of the fundamental freedoms as enshrined in EU treaties.
The court observed that what the two lawyers in this particular case were seeking to do was in line with EU law and was not in any way abusive of the right of establishment. The fact that the submission of the application for registration in the Italian register of lawyers took place soon after the professional title was obtained in Spain could also not be considered as abusive. This is because there is no requirement in the relevant EU directive that there should be a period of practical experience in the home member state prior to exercising the right of establishment.
Despite the fact that this judgment was delivered within the context of the legal profession, the principles embraced therein by the CJEU apply across the board. The message is loud and clear and to the effect that the right of EU citizens to exercise free movement reigns supreme. Any justification brought forward by a member state in order to impede such a right will not be accepted easily but will be carefully scrutinised in order to ensure that it does not serve as an unlawful deterrent to the fundamental right of free movement guaranteed to all EU citizens by the treaty itself.
mariosa@vellacardona.com
Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.