The Court considers that the directive does not entail discrimination against national lawyers but ensures consumer protection and the proper administration of justice; since it concerns the mutual recognition of professional titles, it was permissible for the directive to be adopted by a qualified majority
A directive of the European Parliament and the Council of the European Union of 16 February 1998, adopted by a qualified majority, provides that any lawyer is to be entitled to pursue his activities on a permanent basis in another Member State, under his home-country professional title. He may, inter alia, give advice on the law of his home Member State, on Community law, on international law and on the law of the host Member State.
The exercise of that right is not subject to an adaptation period or aptitude test. Joint practice of the profession of lawyer in the host Member State is also authorised on certain conditions.
The Grand Duchy of Luxembourg has requested the Court of Justice of the European Communities to annul that directive. In its view, that measure introduces a difference in treatment as between national and migrant lawyers and does not guarantee adequate consumer protection or the proper administration of justice.
Furthermore, according to the Grand Duchy, the directive ought to have been adopted, not by a qualified majority, but unanimously, because of the amendments to the conditions governing training and access to the profession that it imposes at national level.
The Court recalls that the fundamental principle of equal treatment requires that comparable situations should not be treated in a different manner. It considers that that principle is not infringed by the directive, since a migrant lawyer practising under his home-country professional title is, objectively, in a situation different from that of a national lawyer. Migrant lawyers are forbidden to carry out certain activities and, with regard to the representation and defence of clients in legal proceedings, are subject to certain obligations.
According to the Court, the directive which the Grand Duchy seeks to have annulled contains rules intended to protect consumers and to ensure the proper administration of justice. Thus, the migrant lawyer's professional title informs consumers about his initial training. In addition, the directive provides that migrant lawyers' activities are subject to certain restrictions and, moreover, that such lawyers must observe the same rules of professional conduct as those imposed on lawyers practising under the professional title of the host Member State. Finally, like the latter, migrant lawyers must be covered by professional insurance and be subject to disciplinary rules.
The Court therefore considers that, by releasing migrant lawyers from the obligation to prove in advance knowledge of the national law applicable in the host Member State, the directive has not abolished the requirement of knowledge of that law, but merely allowed it to be gradually assimilated through practice.
Furthermore, the Court considers that the directive establishes a mechanism for the mutual recognition of professional titles supplementing the Community system which is intended to authorise the unrestricted practice of the profession of lawyer under the professional title of the host Member State, and that it was therefore permissible for it to be adopted by a qualified majority.
Last, the Court finds that the Council and the Parliament have satisfied the obligation to provide reasons imposed in respect of measures of general application.
In those circumstances, the Court rejects the application for annulment.
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