The Gazette 1974

LEGAL EUROPE

REYNERS v BELGIUM—Summary of Judgment

Summary of Judgment delivered by the Court of the

European Communities in Luxembourg on

21st June 1974 (translated by the Editor)

Facts

The applicant, Jean Reyners, was born in Brussels in

May 1931 of Dutch parents who had resided for a long

time in Belgium. Reyners was educated in Belgium, and

obtained the degree of Doctor of Law (equivalent to

LL.M.) of a Belgian University and has continued to

live there, but has at all times kept his Dutch nation-

ality. When he tried to be admitted as a barrister in

Belgium, he was confronted with a Belgian law of

October 1919 which declared that no one can be

admitted to the Belgian Bar unless he is of Belgian

nationality. Article 428 of the Belgian Judicial Code,

which came i nto force on 1 November 1968, has

affirmed the law of 1919 but has sanctioned the King

to grant exemptions in specified circumstances. The

Royal Belgian Decree of 24 August 1970 set out the

following conditions, under which foreign barristers are

admitted to the Belgian Bar, as follows :

(a) The applicant must have been resident in Belgium

for six years before applying for admission.

(b) The applicant must furthermore prove that he

has not been rejected by a foreign Bar on account of

dishonourable motives.

Minister of Foreign Affairs of his country which details

the laws conferring reciprocity.

(d) At the time of his application for admission, be

not resident or domiciled or practising in the Bar of a

foreign country.

The applicant Reyners does not fulfil the conditions

of reciprocity stated in paragraph (c) and has asked the

Belgian Conseil d'Etat by a request of November 1970

to declare that paragraph (c) violates Articles 52, 53,

55 and 57 of the Treaty of Rome, and should conse-

quently be annulled. In an interim judgment of Dec.

1973, the Belgian Conseil d'Etat, in accordance with

Article 173, has requested the Court of the European

Communities to adjudicate upon the following ques-

tions :

(1) What is to be meant by the expression "activities

which in that State are connected, even occasionally,

with the exercise of official authority" in the text of

Article 55 (1) of the Treaty which provides for excep-

tions to freedom of establishment.

(2) Is Article 52 of the Treaty which establishes prin-

ciples of freedom of establishment, since the end of the

period of transition, a law which comes into effect

immediately, despite the fact that no directives have

been issued in accordance with Article 54 (2) or Article

57 (1)?

Written observations to first question

Written observations have been submitted by the

Commission and by the Governments of Federal Ger-

many, of the Netherlands, of Luxembourg, of Belgium

and of Ireland, as by the applicant.

The

applicant

considers that the exception provide"

for by Article 55 to the principle of freedom of estab'

lishment does not relate fully to the profession of law

yer, but only to certain auxiliary activities. Furthermore,

he pointed out,

inter alia,

that if the applicant were au

English or an Irish barrister, he could if he had ob-

tained a Doctorate in Law in a Belgian University, an"

fulfilled the conditions as to integrity and as to dom

cile, be admitted to the Belgian Bar, as there is no la^

as to reciprocity in those countries and furthermore

that different conventions between Bar Organisations

different countries would admit interchange of plead-

ings and even occasional professional practice in the

jurisdiction of the other State.

The

Belgian Government

as the defendant on the

case considers that Question No. 1 must be considered

as a whole in that in (1) Article 55 would exclude froi"

the right of establishment only those activities whic'

are connected with the exercise of public authority, but

those activities should be specifically reserved to the

nationals of the State concerned. It is stated that tlu*

alone would be the only logical solution—i.e. to inter-

pret Article 55 in the most restrictive way. In each

Member State, many professions would participate

1,1

activities which are connected with the exercise of pub'

lie authority as a result of some of their activities, the

right of establishment would be unduly restricted if th

legal profession as a whole were to be subject to fr

dom of establishment.

On the juridical plan, one should be in a positi

to make distinctions. The notion of a profession whip'

would be connected with the exercise of an officii

authority could not be the subject of a judgment &

uniform Community Law, because it differs from

oI1

State to another. Article 55 can only have a broa

general meaning; it could not be construed as applyu

specifically to a specified professional category.

The

Federal German Government

states that such

an activity could in one State be construed as connecteu

with the exercise of an official authority, and in another

State could be understood to pertain to freedom

establishment. It was the intention of the signatories

the Rome Treaty to exclude from the principle of tb

freedom of establishment the profession of lawy

e1.

Furthermore the rules regulating the profession of law

yer in the nine Member States would necessarily

different under German Law, several activities of law

yers, particularly in relation to criminal law, are closeb

connected with the exercise of official activity, which

Article 55 could not exclude.

The

Government

of the Netherlands

considers tha

Article 55 of the Treaty does not exclude from the pi"

111

ciple of freedom of establishment the profession of law

yer in all its aspect, but only those professional leg

functions which are connected with the exercise

public authority such as a lawyer acting as a t empo r al

Judge. These functions would imply generally a certaU

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