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GAZETTE

DECEMBER 1988

Mulhouse Bar. Each of those appli-

cations was rejected on the basis

that he did not reach the standard

of good character required of an

avocat, which was the same as the

s t anda rd r equ i r ed by Fr ench

legislation for persons registered as

conseils juridiques.

Following his registration as

Re c h t s a nwa lt at t he Bar of

Offenburg — Federal Republic of

Germany, Mr. Gullung, who had at

the same time opened an office as

juris consulte (legal consultant) in

Mulhouse, was informed of a

decision of the Mulhouse Bar

Council prohibiting any avocat of

t h a t Bar f r om p r o v i d i ng his

assistance under the relevant

conditions of French and Com-

munity law to any avocat who did

not fulfil the necessary requirement

as to character and, in particular, to

Mr. Gullung. Identical decisions had

been adopted by the Bar Councils

of Colmar and of Saverne, following

wh i ch Mr. Gullung appeared at a

hearing of the Criminal Division of

the Cour d'Appel (Court of Appeal)

of Colmar, acting as adviser to a

civil party in conjunction w i th an

avocat who practised before that

Court.

The main proceedings concerned

the actions wh i ch Mr. Gullung had

b r o u g ht aga i nst t h o se

t w o

decisions. The Cour d'Appel of

Colmar, which was dealing w i th

both cases, stayed its proceedings

and referred t wo questions to the

Court of Justice for a preliminary

ruling.

(1) P r ov i s i on of Se r v i ces

The first que s t i on s ought in

particular to determine whether the

provisions of the Directive might be

relied upon by a lawyer established

in one Member State in order to

pursue his activities as a provider

of services in another Member

State where in the latter State he

had been prohibited access to the

profession of avocat for reasons

relating to dignity, honour and

integrity. The Directive, said the

Court, required Member States to

recognise as a lawyer any person

established as such in another

Member State under one of the de-

signations contained in Article 1(2)

of the Directive, including that of

r e c h t s a nwa lt in t he Federal

Republic of Germany.

It followed from the provisions of

Article 4 of the Directive that

lawyers providing services were

bound to observe the Rules of pro-

fessional conduct in force in a host

Member State.

That interpretation was support-

ed by the wording of Article 7(2) of

the Directive which provided that in

the event of "non-compliance wi th

the obligations in force in the host

Member State", the competent

authority of the latter should

determine the consequences of

such non-compliance " i n accord-

ance w i th its own rules and pro-

cedures".

By imposing the rules of profes-

sional practice of the host Member

State, the Directive assumed that

the provider of services had the

capacity to observe those rules. If

the competent authority of the

Member State had previously found

that a person lacked that capacity

and that the person concerned had

been prohibited access to the

profession concerned for that

reason, it was to be considered that

he did

not

(emhasis added) fulfil the

conditions wh i ch the Directive

imposed for the freedom to provide

services.

(2) R i ght of Es t a b l i s hme nt

The second question submitted by

the French Court related to the

interpretation of Article 52 of the

Treaty. It concerned in particular the

question whether the establish-

ment of a lawyer on the territory of

another Member State, pursuant to

that Article, required the regis-

tration of that lawyer at a Bar of the

host Member State where such a

registration was required by the

legislation of that Member State.

The Court considered t ha t,

according to its own wording, the

question submitted was limited to

a case where a lawyer, who was a

member of a legal profession as

defined by the legislation of the

Member State where he was estab-

lished, intended to establish himself

in another Member State as a

member of a legal profession within

the meaning of the legislation of

the latter State.

According to the second para-

graph of Article 52, freedom of

establishment included access to

activities as a self employed person

and their exercise " under the

conditions laid down for its own

nationals by the law of the country

whe re such e s t ab l i s hment is

effected".

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It followed from the rule that, as

the Court had held in its judgment

in

Ordre des Avocats

au Barreau

de

Paris -v- Klopp

[ 1 9 8 4 ] ECR 2 9 7 1 ,

2989, " i n the absence of specific

community rules in the matter each

Member State is free to regulate

the exercise of the legal profession

in its territory".

The obligation of registration of

lawyers at a Bar, imposed by

certain Member States, was to be

considered lawful under Com-

munity law on condition that such

registration was open to nationals

of all Member States wi t hout dis-

crimination. The purpose of such

an obligation was to guarantee

integrity and the observance of the

principles of professional conduct,

as well as disciplinary control of the

activities of lawyers. It therefore

pursued an objective worthy of pro-

tection.

It followed that Member States

whose legislation imposed the

requirement of registration at a Bar

upon those who wished to estab-

lish themselves in the territory of

that State as a member of the legal

p r o f ess i on as de f i ned by his

national legislation, might impose

t he same r equ i r ement upon

lawyers from other Member States

who relied upon the right of

establishment laid down by the

Treaty in order to avail themselves

of that same capacity.

(3) Do u b le Na t i o n a l i ty

Given the peculiar circumstances

of this case, the Court considered

260