500 / 822
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