The Gazette 1975

the moaning of Articlc 55 of the Treaty of Rome

Must this Article be interpreted in such a way

that, within a profession, like that of Avocat,

only activities which are connected with the

exercise of official authority are e x c l u d e d . .

or as meaning that this profession itself is to

be excluded . . . ?

2) Is Article 52 of the Treaty of Rome, since the

end of the transitional period, a "directly applic-

able provision", despite, in particular, the absence

of Directives as prescribed by Articles 54 (2) and

57(1) of the said Treaty?"

For the purpose of this Article, it is more logical to

consider the questions in the reverse order.

I* The Direct Applicability of Article 52

The concept of direct applicability in Community

,avv

is one of the most original and important

developed by the jurisprudence of the Court of Justice.

It consists in the recognition that certain

. cles of

the EEC Treaty in contrast to those of most inter-

national treaties, "produce direct effects and create

individual rights which municipal courts.must recog-

nise and enforce". The significance of the description

'direct" is that an Article having such an effect has

the force of law in ail Member States automatically

without any need for specific implementing national

legislation. Consequently, any national legislation in-

consistent with directly applicable provisions of the

Treaty is unenforceable. The basis for the Court's

approach is the assumption that EEC represents a

ew legal order in international law, for whose benefit

fhe Member States have limited their sovereign rights,

and whose subjects are not only the Member States

hut individuals as well.

It is clear from the Court's Case law that a Treaty

provision produces direct effects in legal relations

between the Member States and persons under their

jurisdiction, and creates individual rights recognised

by the Natonal Courts if the provisions is "complete

and legally perfect." To be so considered, the pro-

vision must be clear and unconditional, and must not .

be subject to the need for further legislative inter-

a c t i on by either the Community or the Member

States to give it effect. In the Reyners Case, the parties

^Presented (who included the Irish Government)

divided on this last point. Some felt that Article 52

merely created a principle, albeit fundamental, which ,

Was dependent on the adoption of subsequent imple-

menting measures required by Articles 54 and 57,

and could not therefore be considered directly applic-

able. Othere argued that, even if this were true in

Ra t i on to the abolition of certain restrictions, the

Article should be considered directly applicable as

a*'as restriction based on nationality were concerned.

The Court analysed the implementation measures

Squired by Articles 54 and 57 as having two functions,

h e

first being to eliminate, during the transitional

P®

od, obstacles to the freedom of establishment, and

me second being to cor-ordinate national measures so

as to facilitate the effective exercise of this freedom.

It concluded that the expiry of the transitional period

on 31st December 1969 rendered superfluous the

directives eliminating obstacles. The right guaranteed

b y ' Article 52 could in no sense be considered

"dependent" upon the adoption of such directives and

the Article there fore took direct effect at the end of

the transitional period, thereby creating individual

rights which national courts must recognise. The Court

emphasised however that, where freedom of establish-

ment for any activity had not yet been implemented,

directives would still be required to fulfil their second

function, namely the facilitation of the effective

exercise of the freedom.

In reaching its decision, the Court demonstrated

once again its concern that private individuals should

enjoy rights under the Treaty in as direct and exten-

sive a manner as possible, and that the Member States

should not be allowed to interfere with the individual's

enjoyment and enforcements of these rights.

2. The Extent of the Exception contained in Article

The question as to whether the whole legal pro-

fession should be exempted from the provisions of the

Treaty relating to freedom of establishment has been

a source of considerable controvery both during the

drafting of the Treaty and since it came into force.

The settlement of the issue by the Court is therefore

very welcome. The fact that,

in toto,

the party's sub-

missions on this question were almost twice as long

as those on the question of the direct applicability of

Article 52 is an indication of the importance attached

to t.i; problem.

Most of the intervening parties argued that the

exception should be restricted to activities within the

professions which are closely connected with the

exercise of official authority, and should not extend to

every activity of professions which involve the

occasional exercise of official authority. Others,

perhaps more enamoured of restrictive practices, felt

that, in relation to the legal profession, lawyers'

activities cannot be clearly separated into those which

involve the exercise of official authority and those

which do not.

The Court decided that, given the spirit and

objective of the Treaty, the exception in Article 55

must be interpreted in a restrictive sense. Its purpose,

the exclusion of non-nationals from exercising official

authority, is fully satisfied when the exclusion is

limited to activities involving "a direct and specific

connection with the exercise of official authority". The

exclusion of non-nationals from a whole profession

would b? possible only if the activities connected with

the exercise of official authority are so inseparable

from the professional activity in question that non-

nationals could not otherwise be prevented from

exercising such authority. In relation to the legal pro-

fession, the Court specified that activities such as

consultation and representation in court cannot be

considered to involve the exercise of official authority.

In other words, no Member State may refuse

nationals of other Member States admission to the

legal profession the basis of Article 55.

An important point made by a number of the parties