CJEC, November 24, 1977, No 65-77

1 By a judgment of 18 may 1977, which was received at the Court on 27 may 1977, the Cour d'appel, Douai, referred two questions to the Court under article 177 of the EEC treaty for a preliminary ruling on the interpretation of article 62 of the convention signed at Lome on 28 February 1975 between the African, Caribbean and pacific states of the one part and the European Economic Community of the other part, published as an annex to Council regulation No 199-76 of 30 January 1976 (oj l 25, p.1), hereinafter referred to as ' the Lome convention ', in relation to the right of establishment of advocates in the French Republic.

2 It appears from the file that the applicant in the main proceedings, who is a Madagascan national and has a degree in law and a certificat d'aptitude a la profession d'avocat (qualifying certificate for the profession of advocate) obtained in accordance with French law, applied to be admitted to pupillage at the Lille bar.

3 After finding, without prejudice to the usual inquiry and verifications, that the applicant had the professional qualifications enabling him to seek admission, the Conseil de l'ordre (bar Council) reserved its position on the application of the condition as to nationality which is laid down in the following terms by article 11 of law No 71.1130 of 31 December 1971 reforming certain legal and judicial professions (journal officiel de la Republique francaise, 1972, p.131): ' he must be French, and for this purpose account must be taken of international agreements '.

4 In that connexion the applicant sought to rely on article 62 of the Lome convention, and by a decision of 14 December 1976 the Conseil de l' ordre, invoking article 177 of the EEC treaty, requested the Court of justice to give a preliminary ruling on two questions identical in content to the questions referred by the Cour d'appel, Douai (case 3-77, oj c 40 1977, p.8).

5 Pursuant to an appeal by the procureur general, the Cour d'appel by the judgment aforesaid annulled the decision of the Conseil de l' ordre on the grounds that when the Conseil de l'ordre gives a ruling on admission to pupillage, it is acting in an administrative capacity but not as a Court, and that therefore it is not empowered to make a reference for a preliminary ruling to the Court of justice under article 177 of the treaty.

6 Consequently, by an order of 15 June 1977, the Court of justice ordered case 3-77 to be removed from the register (oj c 185, p.1).

7 It also results from the aforementioned judgment that, by virtue of the annulment of the decision of the Conseil de l ' ordre, the question of the applicant's admission to pupillage has devolved in its entirety upon the Cour d'appel.

8 The national Court found that the settlement of the case before it required an interpretation of article 62 of the Lome convention, and referred for a preliminary ruling two questions in the following terms:

' 1. does article 62 of the Lome convention of 28 February 1975 give a national of an ACP state, and in particular a person of Madagascan nationality, the right to establish himself in the territory of a member state, and in particular in French territory, without any condition as to nationality?

2. Does the reservation contained in the abovementioned article 62 allow a member state to require the nationality of such state or that of another member state for the pursuit of a specific activity, in the present case the profession of advocate?

'The first question

9 Under article 62 of the Lome convention, ' as regards the arrangements that may be applied in matters of establishment and provision of services, the ACP states on the one hand and the member states on the other shall treat nationals and companies or firms of member states and nationals and companies or firms of the ACP states respectively on a non-discriminatory basis. however, if, for a given activity, an ACP state or a member state is unable to provide such treatment, the member states or the ACP states, as the case may be, shall not be bound to accord such treatment for this activity to the nationals and companies or firms of the state concerned '.

10 In his written observations, the applicant in the main proceedings argues that the effect of article 62 of the Lome convention is the same as that of the provisions of the EEC treaty in matters of establishment, and seeks to rely upon the principles which form the basis of the judgment of the Court of 21 July 1974, case 2-74, Reyners v Belgian state (1974) ECR 631.

11 However, the wording of article 62 will not admit of such an interpretation.

12 In fact, that wording refers to the two groups of states bound by the Lome convention, the ACP states and the member states of the EEC, and provides that any state belonging to one of the two groups shall treat nationals of any state belonging to the other group on a non-discriminatory basis.

13 On the other hand, the wording of the article does not purport to provide equality of treatment between nationals of an ACP state and those of a member state of the EEC.

14 More particularly, that articles does not oblige either the ACP states or the member states of the EEC to give to the nationals of a state belonging to the other group treatment identical to that reserved to their own nationals.

15 However, the foregoing conclusion leaves open the question whether nationals of an ACP state may be entitled, under the rules as to non-discrimination laid down in article 62 of the Lome convention, to invoke the particular advantages accorded in matters of establishment by a member state to other ACP states.

16 Indeed, it emerges from the information supplied by the French government, at the request of the Court that the French Republic has concluded with a small number of ACP states establishment conventions or judicial conventions based on reciprocal application of national treatment.

17 It was further stated that a judicial convention based on the principle of national treatment in matters of establishment of advocates hitherto existed between the French Republic and the Malagasy Republic, but that on the initiative of the latter state, those provisions were subsequently replaced by a convention limited, as far as advocates are concerned, to freedom to provide services in specific cases.

18 The existence of these particular arrangements, in relations between the French Republic and certain of the ACP states, raises the question whether the rule as to non-dicrimination laid down in article 62 of the Lome convention should be read as providing for the same treatment to be given to a Madagascan national in France as that given to nationals of those ACP states which are so favoured.

19 In order to answer this question, it suffices to find that it is not contrary to the rule as to non-discrimination laid down in article 62 for a member state to reserve more favourable treatment to the nationals of one ACP-state, provided that such treatment results from the provisions of an international agreement comprising reciprocal rights and advantages.

20 Therefore the answer to the first question should be that article 62 of the Lome convention does not give a national of an ACP state the right to establish himself in the territory of a member state without any condition as to nationality, in so far as the right to practise professions reserved by the legislation of that state to its own nationals is concerned.

The second question

21 A reply to the second question, which aims to specify the scope of the reservation contained in the second sentence of article 62 of the Lome convention, would be necessary only if the effect of the interpretation of the first sentence of the said article had been to give national treatment to the nationals of ACP states, in regard to profession at issue.

22 In the event, such is not the case, and accordingly there is no need to answer the second question.

Costs

23 The costs incurred by the government of the French Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

24 As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings commenced before the national Court, the decision on costs is a matter for that Court.

On those grounds,

The Court

In answer to the questions referred to it by the Cour d'appel, Douai, by judgment of 18 may 1977, hereby rules: