CJEC, April 28, 1977, No 71-76

1 By order of 13 July 1976, lodged at the Court registry on 19 July 1976, the Cour d'appel, Paris, put to the Court, under article 177 of the EEC treaty, a question concerning the interpretation of article 57 of the treaty, which relates to the mutual recognition of evidence of professional qualifications for the purposes of access to activities as self-employed persons, with regard in particular to admission to exercise the profession of advocate.

Thieffry v conseil de l'ordre des avocats a la Cour de Paris

2 The case before the Cour d'appel concerns the admission to the Ordre des avocats auprès de la Cour de Paris (the Paris bar) of a Belgian advocate, who is the holder of a Belgian diploma of doctor of laws which has been recognized by a French university as equivalent to the French licenciate's degree in law, and who subsequently obtained the 'certificat d' aptitude a la profession d'avocat' (qualifying certificate for the profession of advocate), having sat and passed that examination, in accordance with French legislation.

3 The appellant in the main action applied for admission to the Paris bar, but by an order of 9 march 1976 the Conseil de l'ordre (bar Council) rejected his application on the ground that the person concerned' offers no French diploma evidencing a licentiate's degree or a doctor's degree '.

4 it appears from the wording of that decision that the application for admission was refused solely by reason of the fact that, although the person concerned had obtained university recognition of the equivalence of his basic diploma and furthermore had acquired the certificat d' aptitude a la profession d'avocat, that was not enough for him to be treated in the same way as a holder of the diploma of the licentiate's degree or doctor's degree within the meaning of French legislation.

5 According to the Conseil de l'ordre, although the effect of the treaty is to abolish any discrimination on grounds of nationality in this field, the equivalence of diplomas does not follow automatically from the application of its provisions, since such equivalence can result only from directives concerning recognition adopted pursuant to article 57 of the treaty, which do not yet exist for the profession of advocate.

6 The person concerned appealed to the Cour d'appel against the order of the Conseil de l'ordre and the Cour d'appel put to the Court a question in the following terms:

'When a national of one member state desirious of exercising the profession of advocate in another member state has obtained a diploma in his country of origin which has been recognized as an equivalent qualification by the university authority of the country of establishment and which has enabled him to sit in the latter country the advocate's professional qualifying examinations-which he has passed-does the act of demanding the judgment of 28. 4. 1977-case 71-76

National diploma prescribed by the law of the country of establishment constitute, in the absence of the directives provided for in article 57 (1) and (2) of the treaty of Rome, an obstacle to the attainment of the objective of the community provisions in question?

7 Under article 3 of the treaty, the activities of the community include, inter alia, the abolition of obstacles to freedom of movement for persons and services.

8 With a view to attaining this objective, the first paragraph of article 52 provides that restrictions on the freedom of establishment of nationals of a member state in the territory of another member state shall be abolished by progressive stages in the course of the transitional period.

9 Under the second paragraph of the same article, freedom of establishment includes the right to take up activities as self-employed persons, under the conditions laid down for its own nationals by the law of the country where such establishment is effected.

10 Article 53 emphasizes the irreversible nature of the liberalization achieved in this regard at any given time, by providing that member states shall not introduce any new restrictions on the right of establishment in their territories of nationals of other member states.

11 With a view to making it easier for persons to take up and pursue activities as self-employed persons, article 57 assigns to the Council the duty of issuing directives concerning, first, the mutual recognition of diplomas, and secondly, the coordination of the provisions laid down by law or administrative action in member states concerning the taking up and pursuit of activities as self-employed persons.

12 That article is therefore directed towards reconciling freedom of establishment with the application of national professional rules justified by the general good, in particular rules relating to organization, qualifications, professional ethics, supervision and liability, provided that such application is effected without discrimination.

Thieffry v Conseil de l'ordre des avocats a la Cour de Paris

13 In the general programme for the abolition of restrictions on freedom of establishment, adopted on 18 December 1961 pursuant to article 54 of the treaty, the Council proposed to eliminate not only overt discrimination, but also any form of disguised discrimination, by designating in title iii (b) as restrictions which are to be eliminated, ' any requirements imposed, pursuant to any provision laid down by law, regulation or administrative action or in consequence of any administrative practice, in respect of the taking up or pursuit of an activity as a self-employed person where, although applicable irrespective of nationality, their effect is exclusively or principally to hinder the taking up or pursuit of such activity by foreign nationals ' (oj, English special edition, second series, ix, p.8).

14 In the context of the abolition of restrictions on freedom of establishment, that programme provides useful guidance for the implementation of the relevant provisions of the treaty.

15 It follows from the provisions cited taken as a whole that freedom of establishment, subject to observance of professional rules justified by the general good, is one of the objectives of the treaty.

16 In so far as community law makes no special provision, these objectives may be attained by measures enacted by the member states, which under article 5 of the treaty are bound to take ' all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this treaty or resulting from action taken by the institutions of the community ', and to abstain ' from any measure which could jeopardize the attainment of the objectives of this treaty '.

17 Consequently, if the freedom of establishment provided for by article 52 can be ensured in a member state either under the provisions of the laws and regulations in force, or by virtue of the practices of the public service or of professional bodies, a person subject to community law cannot be denied the practical benefit of that freedom solely by virtue of the fact that, for a particular profession, the directives provided for by article 57 of the treaty have not yet been adopted.

18 Since the practical enjoyment of freedom of establishment can thus in certain circumstances depend upon national practice or legislation, it is incumbent judgment of 28. 4. 1977-case 71-76

Upon the competent public authorities-including legally recognized professional bodies-to ensure that such practice or legislation is applied in accordance with the objective defined by the provisions of the treaty relating to freedom of establishment.

19 In particular, there is an unjustified restriction on that freedom where, in a member state, admission to a particular profession is refused to a person covered by the treaty who holds a diploma which has been recognized as an equivalent qualification by the competent authority of the country of establishment and who furthermore has fulfilled the specific conditions regarding professional training in force in that country, solely by reason of the fact that the person concerned does not possess the national diploma corresponding to the diploma which he holds and which has been recognized as an equivalent qualification.

20 The national Court specifically referred to the effect of a recognition of equivalence ' by the university authority of the country of establishment ', and in the course of the proceedings the question has been raised whether a distinction should be drawn, as regards the equivalence of diplomas, between university recognition, granted with a view to permitting the pursuit of certain studies, and a recognition having ' civil effect ', granted with a view to permitting the pursuit of a professional activity.

21 It emerges from the information supplied in this connexion by the Commission and the governments which took part in the proceedings that the distinction between the academic effect and the civil effect of the recognition of foreign diplomas is acknowledged, in various forms, in the legislation and practice of several member states.

22 Since this distinction falls within the ambit of the national law of the different states, it is for the national authorities to assess the consequences thereof, taking account, however, of the objectives of community law.

23 In this connexion it is important that, in each member state, the recognition of evidence of a professional qualification for the purposes of establishment may be accepted to the full extent compatible with the observance of the professional requirements mentioned above.

Thieffry v Conseil de l'ordre des avocats a la Cour de Paris

24 Consequently, it is for the competent national authorities, taking account of the requirements of community law set out above, to make such assessments of the facts as will enable them to judge whether a recognition granted by a university authority can, in addition to its academic effect, constitute valid evidence of a professional qualification.

25 The fact that a national legislation provides for recognition of equivalence only for university purposes does not of itself justify the refusal to recognize such equivalence as evidence of a professional qualification.

26 This is particularly so when a diploma recognized for university purposes is supplemented by a professional qualifying certificate obtained according to the legislation of the country of establishment.

27 In these circumstances, the answer to the question referred to the Court should be that when a national of one member state desirous of exercising a professional activity such as the profession of advocate in another member state has obtained a diploma in his country of origin which has been recognized as an equivalent qualification by the competent authority under the legislation of the country of establishment and which has thus enabled him to sit and pass the special qualifying examination for the profession in question, the act of demanding the national diploma prescribed by the legislation of the country of establishment constitutes, even in the absence of the directives provided for in article 57, a restriction incompatible with the freedom of establishment guaranteed by article 52 of the treaty.

Costs

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

29 As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Cour d' appel, Paris, the decision on costs is a matter for that Court.

Opinion of Mr Mayras-case 71-76

On those grounds,

The Court

In answer to the question referred to it by the Cour d'appel, Paris, by a judgment delivered in chambers on 13 July 1976, hereby rules: