Ebert (Freedom of establishment)

This reference for a preliminary ruling concerns the interpretation of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16), as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 (OJ 2001 L 206, p. 1), and 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 that in which the qualification was obtained (OJ 1998 L 77, p. 36).

The reference has been made in the course of proceedings between Mr Ebert, a German national and lawyer registered as a ‘Rechtsanwalt’ at the Düsseldorf Bar (Germany), and the Budapesti Ügyvédi Kamara (Budapest Bar Association, Hungary) as to the right claimed by Mr Ebert to use the title ‘ügyvéd’ (lawyer in Hungary) without being a member of the Bar Association.

The seventh and tenth recitals in the preamble to Directive 89/48 which apply ratione temporis to the dispute in the main proceedings are worded as follows:

Article 1(a) of Directive 89/48 defines, for the purposes of that directive, the concept of ‘diploma’ as follows:

Article 2 of Directive 89/48 provides:

The first paragraph of Article 3 of Directive 89/48 provides:

Article 4(1) of Directive 89/48, provides:

Article 6(1) of Directive 89/48 provides:

Article 7(1) of Directive 89/48 states:

Recitals 2, 3 and 7 in the preamble to Directive 98/5 are worded as follows:

Article 2 of Directive 98/5, entitled ‘Right to practise under the home-country professional title’, provides:

Article 6(1) of Directive 98/5 is worded as follows:

Entitled ‘Like treatment as a lawyer of the host Member State’, Article 10 of Directive 98/5 is worded as follows:

Access to the profession of lawyer in Hungary is governed by the following laws:

From 1 May 2004 to 20 October 2007, the relevant provisions of the Law on the recognition of qualifications and diplomas were worded as follows:

According to the list of regulated professions in force from 1 May 2004 to 8 May 2009, published by the Hungarian Ministry of Education, the formal qualifications necessary for the practice of the profession of lawyer fall within the definition of ‘diploma’ for the purposes of the Law on the recognition of qualifications and diplomas.

On the date on which the action giving rise to the main proceedings was brought, that is 13 December 2006, the relevant provisions of the Law on lawyers was worded as follows:

Mr Ebert, a German national, studied law in Germany and, as a member of the Düsseldorf Bar, has been entitled to use the title ‘Rechtsanwalt’ since 1997. Mr Ebert has lived in Hungary since the end of the 1990s where he acquired the title Doctor of Law in 2002 after studying at the University of Miskolc.

In 2004, Mr Ebert signed a cooperation agreement with a Hungarian law firm and was registered as a European lawyer, within the meaning of Article 89/A of the Law on lawyers, by decision of 20 September 2004 of the Budapesti Ügyvédi Kamara, enabling him to practise as a lawyer in that Member State under his home-country professional title.

According to the information contained in the order for reference, in 2005 Mr Ebert set up his own law firm in Hungary which was registered by the Budapesti Ügyvédi Kamara by decision of 6 April 2005.

The order for reference further states that, on 13 December 2006, Mr Ebert requested the F�'városi Bíróság (Court of Budapest) to grant him the right to use the Hungarian title ‘ügyvéd’ in Hungary without being a member of the Bar Association.

The F�'városi Bíróság dismissed that request on the ground that, pursuant to Articles 1 and 7(1) and (3) of Directive 89/48, Mr Ebert could use the title ‘ügyvéd’ only if he established that he was a member of the Bar Association. Mr Ebert brought an appeal against that decision before the F�'városi Ítél�'tábla (Court of Budapest).

In those circumstances the F�'városi Ítél�'tábla decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

In his written submissions and at the hearing Mr Ebert submitted that in fact he simply applied to the Hungarian Ministry of Education and Culture to sit the aptitude test in order to obtain authorisation to practise the profession of lawyer under the professional title of the host Member State, in accordance with Directive 89/48, which has not replied to that request, but forwarded it to the Budapesti Ügyvédi Kamara, which has also failed to reply.

At the hearing, the Budapesti Ügyvédi Kamara confirmed receipt of that application from the Ministry of Education and Culture, but submitted that under national law it has no competence as regards the recognition of higher education diplomas under Directive 89/48, as that competence rests with the Ministry of Education and Culture which has not yet taken a decision on Mr Ebert’s application. The Budapesti Ügyvédi Kamara stated that for that reason it could not reply to that application, but added Mr Ebert to the list of European lawyers.

Before the Court, the Hungarian Government confirmed that, according to the Law on recognition of titles and diplomas, which transposed Directive 89/48 into Hungarian law, the recognition of Mr Ebert’s diplomas falls within the competence of the Ministry of Education and Culture.

By its second question, which it is appropriate to examine first, the national court asks, in essence, whether Directive 98/5 excludes the application of Directive 89/48, as the detailed rules laid down in Article 10(1) and (3) of Directive 98/5 are the only means for lawyers from other Member States to gain access to the title of lawyer of a host Member State, or whether the two directives complement one another by establishing, for lawyers from Member States, two ways to gain admission to the profession of lawyer in a host Member State under the professional title of the latter State.

Mr Ebert, the Hungarian, Czech, Spanish and Austrian Governments and the European Commission take the view that Directives 98/5 and 89/48 establish two ways to gain admission to the profession of lawyer in the host Member State. At the hearing, the Budapesti Ügyvédi Kamara indicated that it shares that opinion.

In that connection, the second paragraph of Article 2 of Directive 89/48 states that it does not apply to professions which are the subject of a separate directive establishing arrangements for the mutual recognition of diplomas by Member States.

However, it is clear from Article 10(1) of Directive 98/5 that a lawyer practising under his home-country professional title who has effectively and regularly pursued a professional activity in the host Member State for a period of at least three years in the host Member State and in the law of that Member State, including European Union law, is dispensed from the conditions referred to in Article 4(1)(b) of Directive 89/48 in order to gain admission to the profession of lawyer in that Member State.

Furthermore, in the circumstances described in Article 10(3) of Directive 98/5, a lawyer practising under his home-country professional title who has effectively and regularly pursued a professional activity in the host Member State for a period of at least three years but for a lesser period in the law of that Member State may also obtain the right to practise under the professional title corresponding to the profession in that Member State without having to meet the conditions referred to in Article 4(1)(b) of Directive 89/48.

However, although, in the context of those rules which allow access to the profession of lawyer under the title of the host Member States, a lawyer qualified in another Member State is dispensed from the conditions referred to in Article 4(1)(b) of Directive 89/48, it must be stated that Directive 98/5 does not deprive such a lawyer, in particular where he has not yet effectively and regularly pursued a professional activity for a period of at least three years in the host Member State, of the possibility of applying to take up the profession of lawyer under the title of that Member State by relying on Directive 89/48. As reflected in recitals 2 and 3 in the preamble to Directive 98/5, Article 10(2) clearly states that a lawyer practising under his home-country professional title in a host Member State may, at any time, apply to have his diploma recognised in accordance with Directive 89/48 with a view to gaining admission to the profession of lawyer in that Member State and practising law under the professional title corresponding to the profession in that Member State.

In such a situation the holder of a ‘diploma’, within the meaning of Article 1(a) of Directive 89/48, such as Mr Ebert, enjoys, in accordance with Article 3, first paragraph, subparagraph (a) thereof, access to the regulated profession of lawyer in the host Member State. However, since the profession is one whose practice requires a precise knowledge of national law and an essential and constant element of which is the provision of advice and/or assistance concerning national law, Article 3 of Directive 89/48 as amended does not prevent the host Member State from requiring, pursuant to Article 4(1)(b) thereof, that the applicant take an aptitude test, provided that that Member State first verifies whether the knowledge acquired by the applicant in the course of his professional experience is capable of covering, in whole or in part, the substantial difference referred to in the first subparagraph of that latter provision (see Case C-118/09 Koller [2010] ECR I-0000, paragraphs 38 and 39).

It follows that a lawyer from a Member State may gain admission to the profession of lawyer, in a host Member State where that profession is regulated, and practise under the professional title awarded by it, either under Directive 89/48 or Article 10(1) and (3) of Directive 98/5.

Therefore, the answer to the second question is that Directives 89/48 and 98/5 complement one another by establishing, for lawyers from Member States, two means for gaining admission to the profession of lawyer in a host Member State under the professional title of that State.

By its first question, the national court asks, in essence, whether Directives 89/48 and 98/5 preclude national rules laying down the requirement to be a member of a body such as a Bar Association in order to practise the profession of lawyer under the title of lawyer of the host Member State.

It is clear from Article 3 of Directive 89/48 that if a person holds a diploma required by another Member State in order to gain admission to a profession, he is entitled to take up or pursue that profession under the same conditions as those for nationals of that State, except for the condition relating to the possession of a diploma from the host Member State.

Furthermore, it is clear from Article 6 of Directive 89/48, read in the light of the 10th recital in the preamble thereto, that a person taking up a regulated profession in a host Member State on the basis of the recognition of a diploma within the meaning of Article 1(a) thereof, must comply with the rules of that Member State governing, in particular, professional ethics.

It is also clear from Article 6(1) of Directive 98/5 that even lawyers practising under their home-country professional title in a host Member State are subject to the same rules of professional conduct as lawyers practising under the professional title of that State (see, to that effect, Case C-225/09 Jakubowska [2010] ECR I-0000, paragraph 57).

Therefore, it must be stated that neither Directive 89/48 nor Directive 98/5 preclude the application, to any person practising the profession of lawyer in a Member State, particularly as regards the taking up or pursuit thereof, of national provisions laid down by law, regulation or administrative action justified by the general good, such as rules relating to organisation, qualifications, professional ethics, supervision and liability (see, to that effect, as regards Directive 89/48, Case C-55/94 Gebhard [1995] ECR I-4165 , paragraph 35 and the case-law cited).

It is for the national court to ascertain whether the Budapesti Ügyvédi Kamara has applied those rules in accordance with the rules of European Union law and, in particular, the principle of non-discrimination (see, to that effect, Case C-19/92 Kraus [1993] ECR I-1663 , paragraph 32; Gebhard , paragraph 37; and Case C-564/07 Commission v Austria [2009] ECR I-100, paragraph 31).

Therefore, the answer to the first question is that neither Directive 89/48 nor Directive 98/5 precludes national rules laying down the requirement to be a member of a body such as a Bar Association in order to practise the profession of lawyer under the title of lawyer of the host Member State.

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Neither Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration, as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001, nor 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 that in which the qualification was obtained preclude national rules laying down the requirement to be a member of a body such as a Bar Association in order to practise the profession of lawyer under the title of lawyer of the host Member State.

Directives 89/48 and 98/5 complement one another by establishing two means by which lawyers from Member States may gain admission to the profession of lawyer in a host Member State under the professional title of that Member State.