OPINION OF ADVOCATE GENERAL
MENGOZZI
delivered on 17 March 2011 (1)
Case C‑101/10
Gentcho Pavlov
Gregor Famira
v
Ausschuss der Rechtsanwaltskammer Wien
(Reference for a preliminary ruling from the Oberste Berufungs- und Disziplinarkommission (Austria))
(External relations – Association agreements – Direct effect – National legislation excluding, before the accession of the Republic of Bulgaria to the European Union, Bulgarian nationals from inclusion on the list of trainee lawyers – Prohibition of all discrimination based on nationality – Concept of working conditions – Compatibility)
1. The main question raised by this reference for a preliminary ruling is whether a Bulgarian national whose application for inclusion on the list of trainee lawyers in Austria was refused, before the accession of the Republic of Bulgaria to the European Union, has suffered discrimination on the ground of nationality prohibited under the Europe Agreement establishing an association between the European Communities and their Member States, on the one hand, and the Republic of Bulgaria, on the other hand, signed on 1 March 1993 (‘the Association Agreement with the Republic of Bulgaria’). (2)
I – Legal background
A – The Association Agreement with the Republic of Bulgaria
2. Article 7(1) of the Association Agreement with the Republic of Bulgaria provides that ‘[t]he association includes a transitional period of a maximum duration of 10 years divided into two successive stages, each in principle lasting five years. The first stage shall begin when the Agreement enters into force’.
3. The first indent of Article 38(1) of the Association Agreement with the Republic of Bulgaria provides as follows:
‘Subject to the conditions and modalities applicable in each Member State:
– the treatment accorded to workers of Bulgarian nationality legally employed in the territory of a Member State shall be free from any discrimination based on nationality, as regards working conditions, remuneration or dismissal, as compared to its own nationals’.
4. Article 42(1) of the Association Agreement with the Republic of Bulgaria provides as follows:
‘Taking into account the labour market situation in the Member State, subject to its legislation and to the respect of rules in force in that Member State in the area of mobility of workers:
– the existing facilities for access to employment for Bulgarian workers accorded by Member States under bilateral Agreements ought to be preserved and if possible improved,
– the other Member States shall examine the possibility of concluding similar Agreements.’
5. Article 45(1) of the Association Agreement with the Republic of Bulgaria, in the chapter entitled ‘Establishment’, provides that ‘[e]ach Member State shall grant, from entry into force of the Agreement, for the establishment of Bulgarian companies and nationals and for the operation of Bulgarian companies and nationals established in its territory, a treatment no less favourable than that accorded to its own companies and nationals, save for matters referred to in Annex XVa.’
6. Article 45(5)(a)(i) of the Association Agreement with the Republic of Bulgaria defines establishment ‘as regards nationals, [as] the right to take up and pursue economic activities as self-employed persons and to set up and manage undertakings, in particular companies, which they effectively control. Self-employment and business undertakings by nationals shall not extend to seeking or taking employment in the labour market or confer a right of access to the labour market of the other Party. The provisions of this chapter do not apply to those who are not exclusively self‑employed.’
7. Article 45(5)(c) of the Association Agreement with the Republic of Bulgaria defines economic activities as ‘activities of an industrial character, activities of a commercial character, activities of craftsmen and activities of the professions’.
8. Article 47 of the Association Agreement with the Republic of Bulgaria provides that ‘[i]n order to make it easier for Community nationals and Bulgarian nationals to take up and pursue regulated professional activities in Bulgaria and the Community respectively, the Association Council shall examine which steps are necessary to be taken to provide for the mutual recognition of qualifications. It may take all necessary measures to that end.’
9. Article 59(1) of the Association Agreement with the Republic of Bulgaria states that ‘[f]or the purpose of Title IV, nothing in the Agreement shall prevent the Parties from applying their laws and regulations regarding entry and stay, work, labour conditions and establishment of natural persons and supply of services, provided that, in so doing, they do not apply them in a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific provision of the Agreement. ...’
B – National legal framework
10. The provisions governing the profession of lawyer and access to this profession in Austria are contained in the Law on the examination for lawyers (Rechtsanwaltsprüfungsgesetz, ‘the RAPG’) (3) and in the Austrian Code of Lawyers (Österreichische Rechtsanwaltsordnung, ‘the RAO’). (4)
1. The RAPG
11. Under Paragraph 1 of the RAPG, ‘[t]he examination for lawyers shall demonstrate the candidate’s capacities and knowledge required for practising as a lawyer, in particular his skill in introducing and dealing with the public and private matters entrusted to a lawyer and his capability to draft legal documents and legal opinions and to make orderly written and oral submissions on points of law and fact’.
12. Under Paragraph 2(1) of the RAPG, ‘[t]he examination for lawyers may be taken after obtaining a Doktorat der Rechte or, for graduates of a Diplomstudium within the meaning of the Law of 2 March 1978 … on the study of law, a Magisterium der Rechtswissenschaften and completing three years’ practical training, including at least nine months with a court and at least two years with a lawyer ...’.
2. The RAO
13. Under Paragraph 1(1) of the RAO, ‘[t]o practise as a lawyer … no official appointment is required, but merely proof of satisfaction of the following requirements and inclusion on the list of lawyers’.
14. Under Paragraph 1(2) of the RAO, the conditions to be fulfilled are:
‘(a) [Austrian nationality];
…
(d) practical experience of the statutory kind and duration;
(e) passing the examination for lawyers;
…’
15. Paragraph 2 of the RAO reads as follows:
‘1. The practical training required for practising as a lawyer shall consist in legal activity with a court or prosecutor’s office and with a lawyer. … Practical training with a lawyer may be taken into account only if it is exercised as the principal professional activity and is not affected by another professional activity.
2. The practical training in accordance with subparagraph 1 shall last for five years. At least nine months of it shall be spent with a court or prosecutor’s office and at least three years with a lawyer, in Austria.
…’
16. Paragraph 1(3) of the RAO states that ‘[t]he nationality of a Member State of the European Union or of another State party to the Agreement on the European Economic Area or of the Swiss Confederation shall be equated to Austrian nationality.’
17. Paragraph 15 of the RAO provides as follows:
1. If representation by a lawyer is prescribed by law, the lawyer may also have himself represented, under his responsibility, before all courts and administrative authorities by a trainee lawyer working with him and entitled to substitute for him; the signing by a trainee lawyer of documents submitted to courts and administrative authorities is not permitted, however.
2. A trainee lawyer who has passed the examination for lawyers is entitled to substitute for a lawyer ... .
3. If representation by a lawyer is not prescribed by law, the lawyer may also have himself represented, under his responsibility, before all courts and administrative authorities by another trainee lawyer working with him; the signing by a trainee lawyer of documents submitted to courts and administrative authorities is not permitted, however.
4. The Committee of the Chamber of Lawyers must provide trainee lawyers working with a lawyer with certificates attesting to the substitution entitlement in accordance with subparagraph 2 ... or the representation entitlement in accordance with subparagraph 3 ...’.
18. Paragraph 30 of the RAO governing the procedure for inclusion on the list of trainee lawyers states as follows:
‘1. To obtain inclusion on the list of trainee lawyers, on starting training with a lawyer, notice must be given to the Committee, providing proof of [Austrian nationality] and of satisfaction of the requirements prescribed for starting that training, and the training period is reckoned only from the date of receipt of that notice.
…
4. The persons concerned have the right to appeal against a refusal of inclusion on the list of trainee lawyers, against deletion from that list and against a refusal to certify training with a lawyer to the Higher Appeal and Disciplinary Board. …
5. The nationality of a Member State of the European Union or of another State party to the Agreement on the European Economic Area or of the Swiss Confederation shall be equated to Austrian nationality’.
II – The dispute in the main proceedings and questions referred for a preliminary ruling
19. Mr Gentcho Pavlov is a Bulgarian national who completed his legal studies in Vienna, Austria, according to the national court, in 2002. (5) Since 2004, he has been employed in the law office of Mr Famira, a lawyer in Vienna. Mr Pavlov holds an establishment permit within the meaning of Austrian law and a work permit in Austria.
20. On 2 January 2004 Mr Famira and Mr Pavlov requested for Mr Pavlov inclusion on the list of trainee lawyers. At the same time they sought the grant of a certificate of entitlement to appear in court under Paragraph 15(3) of the RAO.
21. By order of 6 April 2004 the Ausschuss der Rechtsanwaltskammer Wien (Committee of the Vienna Chamber of Lawyers) turned down the application on the ground that Mr Pavlov did not satisfy the nationality requirement in Paragraph 30 of the RAO. Since at the time of making the application Mr Pavlov was neither a national of a Member State of the Union nor a national of a State of the European Economic Area or of the Swiss Confederation, his Bulgarian citizenship did not, according to the Ausschuss Rechtsanwaltskammer, meet the requirements of Paragraph 30 of the RAO. The objection to this order was dismissed on 15 June 2004 (6) by the Ausschuss Rechtsanwaltskammer sitting in plenary session.
22. An appeal was lodged against this second order before the Oberste Berufungs- und Disziplinarkommission (Higher Appeal and Disciplinary Board, ‘the OBDK’). On 1 August 2006, that appeal was rejected. The OBDK considered that the legal profession is a regulated profession and that the regulation affects trainee lawyers also. It ruled that, under the terms of the Association Agreement with the Republic of Bulgaria, discrimination is prohibited only as regards working conditions, but that the contracting States have the possibility of putting in place national limitations on access to regulated professions.
23. The applicants having lodged an appeal before it, the Verfassungsgerichtshof (Constitutional Court) on 8 October 2007 set aside that decision, holding that by not referring the case to the Court of Justice for a preliminary ruling on the interpretation of the relevant provisions of the Association Agreement with the Republic of Bulgaria, the OBDK had violated the right of the complainants to proceedings before the proper court guaranteed by the national constitution. The case was therefore referred back to the OBDK.
24. On 17 April 2008, the OBDK partially upheld the appeal against the order of 15 June 2004, setting it aside together with the order of 6 April 2004 in light of the alteration of the legal situation arising from the accession of the Republic of Bulgaria to the European Union. Owing to this supervening new element, the OBDK found that the situation was sufficiently clear to enable it to decide without making a reference for a preliminary ruling to the Court of Justice. In doing so, it referred the case back to the Ausschuss Rechtsanwaltskammer for it to give a decision after supplementary proceedings. The decision by the OBDK of 17 April 2008 was also the subject-matter of an appeal before the Verfassungsgerichtshof.
25. By decision of 2 July 2009, the Verfassungsgerichtshof set aside the new decision of the OBDK of 17 April 2008. It criticises the OBDK, in substance, for not resolving the issue relating to the years 2004 to 2006 by failing to make a reference for a preliminary ruling to the Court of Justice on an issue which, in spite of the accession of the Republic of Bulgaria to the European Union from 1 January 2007, retained full relevance for Mr Pavlov inasmuch as, first, he could only pass the examination for lawyers after practical training of at least two years with a lawyer (Paragraph 2(1) of the RAPG), and secondly, to be included on the list of lawyers, he had to show practical training of at least three years with a lawyer (Paragraph 2(2) of the RAO).
26. Faced, therefore, with a problem of interpretation of European Union law, the Oberste Berufungs- und Disziplinarkommission decided to stay the proceedings and, by order for reference lodged on 23 February 2010, to refer the following two questions to the Court of Justice for a preliminary ruling under Article 267 TFEU:
‘(1) Was Article 38(1) of the [Association Agreement] directly applicable in the period from 2 January 2004 to 31 December 2006 in a procedure for including a Bulgarian national on the list of trainee lawyers?
(2) [In the event of an affirmative reply to the first question, d]id Article 38(1) of the [Association Agreement] preclude the application of Paragraph 30(1) and (5) of the [RAO], under which, inter alia, proof of Austrian citizenship or a nationality regarded as equivalent is a condition of inclusion, to an application by a Bulgarian national employed by an Austrian lawyer, made on 2 January 2004, for inclusion on the list of Austrian trainee lawyers and for the issue of a certificate of entitlement in accordance with Paragraph 15(3) of the [RAO] and the rejection of the application solely on the ground of nationality, despite the other conditions being satisfied and the applicant having an establishment and employment permit for Austria?’
III – Proceedings before the Court
27. The applicants in the main proceedings, the Austrian Government and the European Commission submitted written observations and also presented oral argument at the hearing on 13 January 2011.
IV – Legal analysis
A – Preliminary observation as to whether the OBDK is a court or tribunal
28. As a preliminary matter it has to be ascertained whether the OBDK is a court or tribunal within the meaning of Article 267 TFEU and thus capable of referring questions to the Court for a preliminary ruling.
29. The Court has recently had occasion to rule on this issue in the Koller (7) judgment in which it held that ‘the OBDK, whose jurisdiction, as all parties agree, is compulsory, exhibits all the features necessary in order to be classified as a court or tribunal within the meaning of Article [267 TFEU]’. (8)
30. In these circumstances, it is therefore necessary to continue the analysis, the Court being competent to respond to the referring body.
B – The first question
31. By its first question, the national court seeks to know in substance whether Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria is a provision of Union law with direct effect and if it should be regarded as having such effect during the period from 2 January 2004 to 31 December 2006, within the framework of the procedure for inclusion of a Bulgarian national on the list of trainee lawyers.
32. It is settled case-law that a provision in an agreement concluded by the Community with a non-member country must be regarded as being directly applicable when, having regard to its wording and to the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in regard to its implementation or its effects, to the adoption of any subsequent measure. (9) It is therefore necessary to review Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria on the basis of these three criteria.
33. As regards the terms of Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria, and as the applicants in the main proceedings and the Austrian Government observed in their written observations, the Court has already ruled on whether Article 37(1), first indent, of the Association Agreement between the European Communities and the Republic of Poland, which has a wording almost identical (10) to that of Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria, has direct effect. (11) The Court in that case considered that the said first indent of Article 37(1) ‘lays down, in clear, precise and unconditional terms, a prohibition preventing each Member State from discriminating in relation to its own nationals, on grounds of their nationality, against Polish nationals covered by that provision as far as their conditions of employment, remuneration and dismissal are concerned. ... This rule of equal treatment lays down a precise obligation to produce a specific result and, by its nature, can be relied on by an individual to apply to a national court to set aside the discriminatory provisions of a Member State’s legislation, without any further implementing measures being required for that purpose.’ (12) Nor, moreover, can use of the expression ‘[s]ubject to the conditions and modalities applicable in each Member State’ call in question that finding. (13)
34. As to the nature and subject-matter of the Association Agreement with the Republic of Bulgaria, the Court has already had occasion to state that ‘[a]ccording to the 17th recital in its preamble and Article 1(2), the objective of the Association Agreement is to establish an association designed to promote the expansion of trade and harmonious economic relations between the Contracting Parties, in order to foster dynamic economic development and prosperity in the Republic of Bulgaria, with a view to facilitating its accession to the Community. Moreover, the fact that the Association Agreement is intended essentially to promote the economic development of Bulgaria and therefore involves an imbalance in the obligations assumed by the Community towards the non-member country concerned is not such as to prevent recognition by the Community of the direct effect of certain provisions of that Agreement’. (14)
35. Nor, moreover, is Article 59(1) of the Association Agreement with the Republic of Bulgaria apt to preclude that conclusion, as the Court has held that that provision ‘provides only that the authorities of the Member States remain competent to apply, while respecting the limits laid down by the Association Agreement, their national laws’. (15) Consequently, Article 59(1) does not concern the Member States’ implementation of the provisions of the Association Agreement with the Republic of Bulgaria governing working conditions and is not intended to make implementation or the effects of the obligation of equal treatment laid down in Article 38(1), first indent, subject to the adoption of further national measures. (16)
36. All the conditions imposed by the Court’s case-law for a provision in an international agreement concluded by the Community to have direct effect are satisfied in regard to Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria.
37. I therefore propose that the Court should reply to the first question that Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria satisfies the conditions required of a provision of the law of the European Union for it to have direct effect and could therefore be directly applicable in the period from 2 January 2004 to 31 December 2006.
C – Second question
38. Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria provides for a prohibition of discrimination on the ground of nationality in the case of Bulgarian nationals having the status of worker, legally employed in the territory of a Member State, as regards ‘working conditions, remuneration or dismissal’.
39. The Court has already been called on to rule on the compatibility of a national rule with a provision having a wording similar to that of Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria. In such a case, its approach has been to determine, in the first place, whether the rule referred to indeed referred to working conditions and, secondly, whether the rule indeed constituted discrimination prohibited by the Association Agreement concerned. In this connection, the Court considered it necessary to adopt a three-stage procedure: first, it had to determine whether the Association Agreement prohibited discrimination; then, it had to examine the scope of this prohibition on discrimination, and particularly whether this scope might be comparable to that conferred on a similar provision contained in the EC Treaty; finally, if the two previous questions had received an affirmative reply, it remained to verify whether the discrimination could be objectively justified. (17)
40. For once, I propose to start the analysis by considering the discriminatory nature of the refusal presented to the applicant in the main proceedings, before establishing whether inclusion on the list of trainee lawyers falls within the concept of ‘working conditions’ within the meaning of Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria.
1. Discrimination based on nationality
41. In this case, it is not difficult to see that Article 38 of the Association Agreement with the Republic of Bulgaria obliges the contracting parties not to discriminate against Bulgarian workers because of their nationality. As to whether Article 38(1), first indent, of that Association Agreement can be interpreted as broadly as the Court’s interpretation in the context of its case-law on Article 45(2) TFEU, I note that the Court does not authorise such an attitude in a systematic and comprehensive way, but directs that regard be had to the objective pursued by each of the provisions concerned in the context particular to it. (18) Thus, the fact that the Court ruled in Kondova that the interpretation given to Article 43 EC in the case-law could not be extended to the provisions of the Association Agreement with the Republic of Bulgaria on freedom of establishment (19) does not prejudge the outcome of the analysis of the provisions relating to the free movement of workers contained in the same agreement.
42. The Court has never been called on directly to focus on the interpretation of these provisions. Nevertheless, the Pokrzeptowicz-Meyer judgment (20) may be useful to our analysis. In this judgment, the Court had to determine the scope of the prohibition of discrimination on the basis of nationality as regards working conditions under the Association Agreement with the Republic of Poland. It is to be noted that the prohibition on discrimination is almost identical to that provided for in Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria, (21) and that, according to the findings of the Court, it was analogous with the wording of Article 39(2) of the Treaty. (22)
43. The Court then stated that it followed from the comparison of the objectives and the context of the Association Agreement with the Republic of Poland, on the one hand, with those of the EC Treaty, on the other, that there was no ground for giving the provision in the Association Agreement concerned a meaning different from that found by the Court with respect to the equivalent provision of the Treaty.
44. This reasoning is transposable to Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria, its objectives being comparable to those pursued by the Association Agreement between the Community and the Republic of Poland before its accession. (23) Certainly, as the Court has had the opportunity to say, a provision such as the aforementioned Article 38 does not set out a principle of free movement of Bulgarian workers within the Union, (24) but it does introduce in their favour, from the moment when they are lawfully employed in the territory of a Member State, a right to equal treatment in regard to working conditions of the same scope as that conferred in similar terms by the Treaty on nationals of the Union. (25)
45. Moreover, neither the written observations submitted by the parties nor the discussions at the hearing have brought to light any objective reason such as to justify the difference in treatment between Austrian nationals and Bulgarian nationals as regards access to the list of trainee lawyers.
46. The interim conclusion to be drawn from the foregoing is the following: this is a case of discrimination which does not seem to be justified. None the less, the Gordian knot is not severed because decidedly whether Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria covers a situation such as that at issue in the main proceedings has not yet been established.
2. The concept of ‘working conditions’
47. It is undisputed that Mr Pavlov holds an ‘establishment permit’ under Austrian law (26) as well as a work permit in Austria. In addition, Mr Pavlov has since 2004 been employed by Mr Famira. Mr Pavlov is therefore a worker belonging to the regular employment market who is able to rely, in principle, as an employee, on Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria.
48. It also emerges from the file that the only reason why inclusion on the list of trainee lawyers has been refused to Mr Pavlov is the fact that for that inclusion the Austrian legislation requires Austrian nationality or a nationality assimilated thereto, which he does not have.
49. Therefore, to rule on the compatibility of the application, in the present case, of that legislation with Article 38 of the Association Agreement with the Republic of Bulgaria, it must be analysed whether it concerns a working condition.
50. In this connection, it could be considered that, given the fact that Mr Pavlov was hired by Mr Famira as a trainee lawyer, it is one of the working conditions of a trainee lawyer to be included on the list of trainee lawyers, for a number of reasons: first, inclusion on the list of trainee lawyers is the start of the period to be taken into account for the calculation of the duration of the training and as such is in a sense a precondition for being allowed to sit the examination for lawyers and thus to obtain the title of lawyer. (27) Secondly, only a trainee lawyer on the list may seek the power of representation (‘kleine Legitimationsurkunde’) which will enable him to represent the lawyer for whom he works before national courts and administrations. (28) Such an interpretation might, moreover, seem to be confirmed by the fact that the Austrian employment authorities permitted Mr Famira to take Mr Pavlov on as a trainee lawyer. Consequently, the refusal to enter a person in list of trainee lawyers could be understood as a limitation of the activities that the person may exercise in the context of his ‘employment’, thus having a direct impact on his working conditions, within the meaning of the Court’s case-law in the matter, of which the Deutscher Handballbund judgment, delivered in response to a reference for a preliminary ruling from a German court, is a significant example.
51. In this Deutscher Handballbund judgment, the Court had to rule on the compatibility with Article 38 of the Association Agreement with the Slovak Republic (29) of a national rule emanating from the German handball federation which provided for separate licenses to be issued to the nationals of non-Member States, with the result that only a limited number of players holding this particular type of license could be fielded during official competitions. In the main proceedings in that case, the complainant, of Slovak nationality, who was lawfully employed by a German club, had brought judicial proceedings against the refusal of his request for a licence not accompanied by the mention specific to nationals of non-Member States.
52. The Court, after confirming the direct effect of Article 38 of the Association Agreement with the Slovak Republic, stated that the interpretation given to Article 48(2) of the EC Treaty should be extended to the abovementioned Article 38. (30) It concluded that the sports rule in question concerned working conditions ‘inasmuch as it directly affects participation in league and cup matches of a Slovak professional player who is already lawfully employed under the national provisions of the host Member State’. (31)
53. Therefore, one might think that the refusal to include Mr Pavlov on the list of trainee advocates can similarly be interpreted as having a direct impact on his participation in activities that are specific to this ‘employment’.
54. But, in my opinion, such reliance on this case-law is not possible because it presupposes that the ‘employment’ of Mr Pavlov, equivalent to any other salaried employment, is that of a trainee lawyer.
55. Certainly, Mr Pavlov was hired by Mr Famira as a trainee lawyer. However, the description of trainee lawyer in the contract of employment cannot suffice, in the present case, to bind the national authorities. As was demonstrated at the hearing, one of the reasons why the Committee of the Vienna Chamber of Lawyers exists is precisely to verify that the persons who claim to become trainee lawyers satisfy all the conditions required by the national legislation for inclusion on the list. If it were considered that the contractual link between Mr Pavlov and Mr Famira is sufficient in itself for Mr Pavlov to be already regarded as being in ‘employment’ classified as that of a trainee lawyer and for the inference to be made that his working conditions are being affected by the refusal to include him on the list of trainee lawyers, that would mean that the professional organisations which the Member States have entrusted with the performance of various verification tasks are, in fact and in law, bound by the description of the employment referred to in the contract of employment. There would then be a real risk of circumvention of national legislation, thus allowing free access to activities or professions which are supposed to be regulated.
56. For the same reason I have just mentioned in relation to what is stated in the contract of employment of Mr Pavlov, I do not consider that the decision of the employment authorities which authorised him to be hired as a trainee lawyer creates any right to inclusion on the list: the Austrian Government rightly said at the hearing that it is not for those authorities but for the Committee of the Chamber of Lawyers to verify that a candidate for inclusion fulfils the conditions required by national legislation to that effect. From a functional point of view, Mr Pavlov cannot be regarded as technically already legally employed as a trainee lawyer at the time when he made the application for inclusion on the list.
57. The Court’s case-law on the matter attests to the fact that working conditions comprise the legal rules applicable to the employment relationship concerned as well as the advantages, material or other, granted to the workers, but not the conditions of access to a profession in themselves. For example, the Court has held, in particular, that a national law that aimed at preventing a worker who resumed his employment at his old company from incurring the disadvantages resulting from absence due to military service, in particular by providing that the time spent in military service is taken into consideration for the duration of service in the company, ‘is located in the framework of the conditions of employment and work’; (32) that the grant of a separation allowance to compensate for the inconveniences suffered by a worker separated from his home constitutes additional remuneration and ‘is thus one of the “conditions of employment and work”’; (33) that legislation allowing only national researchers to be registered on the organisation chart of the national research council has an impact on the conditions of work in that that registration determines contract duration and career development; (34) and that a national rule under which nationals of a third State with which the Community has concluded an Association Agreement may fill a post for foreign language assistants only by means of contracts of employment for a definite period contravenes the principle of non-discrimination on the basis of nationality as regards working conditions. (35) This variety of measures that are considered by the Court as falling within the concept of ‘working conditions’ is in no way comparable with the purpose of the legislation at issue in the main proceedings, which concerns access to the list of trainee lawyers.
58. On this type of legislation, as the parties have not failed to point out, the Court has already had to deal with disputes concerning the activity of trainee lawyer in cases such as Morgenbesser. (36) In that judgment, it affirmed that the activity of trainee lawyer is not a regulated profession separable from that of the profession of lawyer. (37) Even if, in that case, the Court did not express a view on whether inclusion on the list of trainee lawyers formed part of the working conditions, it none the less made clear that activity as a trainee lawyer must be regarded as constituting the practical part of the training necessary for access to the profession of lawyer. (38) This lesson had moreover, already been foreshadowed by the Lawrie-Blum judgment, (39) in which the Court considered a problem entirely analogous to that which arises in this case, although concerning a different profession.
59. In Lawrie-Blum, the Court had to rule on the refusal by the German authorities to allow access by a United Kingdom national to the practical training required to teach in secondary schools on the sole ground that the person did not possess German nationality. In ruling on this issue, it did not consider that it was dealing with a working condition but found, on the contrary, that ‘completion of the period of preparatory service and possession of the diploma granted for passing the second state examination are, de jure, essential for admission to the profession of teacher’. (40) The applicant in the main proceedings had therefore suffered discrimination in regard to access to employment, (41) but not in his working conditions.
60. This jurisprudence illuminates unequivocally the scope of Article 38(1), first indent, of the Association Agreement with the Republic of Bulgaria, which does not cover access to employment. This is confirmed, moreover, by Article 42(1) of the same agreement, which, as regards access to employment of the Bulgarian nationals, refers to the bilateral agreements in the matter and wishes to see this access improve in the future. (42)
61. Access to the activities of an Austrian trainee lawyer and then a lawyer is, in addition, undeniably governed by the national legislative and regulatory provisions reserving those activities to persons who fulfil certain conditions and prohibiting access to those who do not. Therefore, what Mr Pavlov is asking is not so much to enjoy equal treatment in his employment but to gain access to a regulated profession, which, for Bulgarian nationals, prior to the accession of Bulgaria to the European Union, is not governed by the provisions of Article 38(1), first indent. It cannot be inferred from that article that it was the will of the contracting parties to eliminate all discrimination based on nationality in regard to access by Bulgarian nationals to the regulated professions. In that connection, regard must be had to the fact that Article 38(1), first indent, is in Chapter I of Title IV of the Association Agreement, entitled ‘Free movement of workers’, while the Agreement mentions the regulated professions in Article 47 in the Chapter on establishment. This constitutes a clear indication that the contracting parties were not seeking to deal with the question of access to the regulated professions by means of Article 38 of the Agreement. Article 47 specifically provides that in the future, the Association Council is to facilitate access to the regulated professions and the practice thereof through the adoption of measures relating to the recognition of qualifications. Therefore, it must be inferred that the Agreement does not contain, in respect of access to those professions, a prohibition on discrimination comparable to that contained in the first indent of Article 38(1).
62. This conclusion is not invalidated by Article 45 of the Association Agreement with the Republic of Bulgaria which states that ‘[e]ach Member State shall grant, from entry into force of the Agreement, for the establishment of Bulgarian companies and nationals and for the operation of Bulgarian companies and nationals established in its territory, a treatment no less favourable than that accorded to its own companies and nationals’. In relation to that Article 45, Articles 42 and 47 of the same agreement are special norms which, as such, preclude the application of that article in the present case.
63. Finally, however distressing and unsatisfactory the situation confronting Mr Pavlov may be, it cannot be said that the Association Agreement with the Republic of Bulgaria lays down any general principle of non-discrimination on the ground of nationality which would be applicable where Bulgarian nationals are not carrying on an economic activity, since that situation is not covered by the provisions relating to the free movement of workers, nor can it be covered by the provisions relating to access to the regulated professions.
64. The Court has often been generous in its interpretation of the Association Agreements and sometimes even partnership agreements. But one way or another, the assimilation advocated by the Court between the scope of the provisions contained in the various international agreements of the Community and those contained in the Treaty always found an element of connection in the text of the agreement concerned. In this case, there is no such element of connection. Doubtless we are experiencing the inherent limits to the principle of the association of the European Union with a non-Member country which, although intended to pave the way for accession, manifestly does not provide so comprehensive and complete a protection as that afforded by the treaties establishing the Union. Except by disregarding the will of the contracting parties and taking the attendant risk of reducing the interest in accession itself, it does not seem to me to be possible to consider that the Member States have undertaken, by way of the Association Agreement with the Republic of Bulgaria, to eliminate all discrimination on the ground of nationality up to and including access to the regulated professions.
65. In these circumstances, and for all foregoing reasons, I propose that the Court should reply that neither the first indent of Article 38(1) nor any other provision of the Association Agreement with the Republic of Bulgaria is intended to apply in a situation in which a Bulgarian national is refused, before the accession of Bulgaria to the European Union, inclusion on the list of trainee lawyers owing to the fact that the applicable national legislation provides that only Austrian nationals or persons assimilated thereto can gain access to the profession of lawyer in Austria.
V – Conclusion
66. In the light of the foregoing considerations, I propose that the Court should reply to the questions referred by the Oberste Berufungs- und Disziplinarkommission as follows:
(1) Article 38(1), first indent, of the Europe Agreement establishing an association between the European Communities and their Member States, on the one hand, and the Republic of Bulgaria, on the other hand, signed on 1 March 1993, satisfies the conditions required of a provision of the law of the European Union for it to have direct effect and could therefore be directly applicable in the period from 2 January 2004 to 31 December 2006.
(2) Neither the first indent of Article 38(1) nor any other provision of the Association Agreement is intended to apply in a situation in which a Bulgarian national is refused, before the accession of the Republic of Bulgaria to the European Union, inclusion on the list of trainee lawyers owing to the fact that the applicable national legislation provides that only Austrian nationals or persons assimilated thereto can gain access to the profession of lawyer in Austria.