The Gazette 1974

power, and its responsible exercise would be controlled

V guarantees, and they would normally be nominated

fancially, the exception in Article 55 only relates to

hose specified activities and an official function would

°nnally imply that the holder possesses the nationality

concerned. But, as regards lawyers, to insist upon nati-

onality as a condition of admission is in reality to fear

oign competition.

*he

Government

of Luxembourg

agrees with the

narks of the Belgian Government. In Luxembourg,

lawyer would inevitably participate in the judicial

ction, being by virtue of his office called upon to

complete the judicial process and he cannot refuse it.

must be noted that the professional training of a

avv

Ver is practically identical to that of a Judge. The

Wyer, like any civil servant, must swear to be faithful

the Constitution. The lawyer, while nominally exer-

ClSln

g a liberal profession, in effect will take an inti-

mate part in judicial power.

The

Irish Government

considers that the exception

contemplated by Article 55 would only apply to law-

yers directly connected with official authority, and not

the legal profession as a whole. The

British Govern-

171

ent takes the same view.

The

European Commission

considers that the notion

fa official authority should be defined as an element of

Community Law and particularly from the principles of

Treaty. All exceptions to the fundamental human

tights must receive a very strict interpretation and the

'Nterpretation favouring fundamental human rights

fa°uld be preferred. The only real effect of Article 55 is

o ensure that foreign lawyers, benefitting from freedom

tablishment, would try to exercise in another coun-

an invalid official function. The notion of exercise

n official function can thus be defined as conferring

Pavers of restraint against persons and goods not under-

ken by a lawyer. The lawyer exercises a liberal profes-

characterised by independence towards official

Hthority. In so far as a lawyer undertakes the defence

person, he does so as a legal technician. The fact

a t

he belongs to a professional association, or that

I? has to take an oath of loyalty, does not confer upon

'm any official authority. Most Governments and Bar

ssociations do allow foreign lawyers to exercise limited

nctions in their Courts.

•

the legal profession an exception must be made

, fae application of Chapter Two of the Treaty only to

,°

e who exercise an official function, if this function

could be dissociated from the normal exercise

he profession.

^cond Question

Article 52 deemed to be a law directly applicable

0 a

H Member States?

According to the

applicant,

Article 52 would be a

j ^

" precise and unconditional direction which would

directly applicable in the Member States since the

of the transition period. The only problem for the

applicant is one of nationality. If the Treaty were to

md from a given date a discrimination founded upon

tionality, this would be directly effective then. The

^ « i o n should consequently be answered in the affir-

Uie Belgian Government

as defendant sustains the

j Ntrary view. Article 52 cannot be construed by itself;

not authorised to regulate the details of the prin-

of establishment. It would be unreasonable to

construe Article 52 as not including nationality amongst

the exceptions to the principles of freedom of estab-

lishment.

The

German Government,

adopting the same view,

points out that if the appellant's contention were sus-

tained, the Member States would not, according to Art.

52, once the period of transition had expired, have the

possibility to issue their own regulations. As long as no

di$ectives have been issued, the Member States have the

right to subordinate the right of establishment within

their territory, to the implementation of conditions of

admission to a profession regulated by their internal

law.

The

Luxembourg Government

agrees with the Bel-

gian Government.

The

Irish Government

does not consider Article 52

to be directly applicable in the circumstances. In order

to apply Article 52 directly, it would be necessary to

issue directives under Article 54 and these would alleg-

edly leave to the Member States the form and means

of putting the Directive into force.

The

Commission of the European Communities

sub-

mits that Article 52 is as clear as Article 53, which the

Court has already made directly applicable to all Mem-

ber States. Article 52 is a law to be applied without

conditions. The Council of Ministers should arrange a

programme which would fit in respect of each activity,

general conditions byq which the principle of the actual

realisation of freedom of establishment would be under-

taken.

Once the Council had adopted these principles, the

Community institutions would no longer be in a posi-

tion to intervene. The Council would have to issue

directives to implement the programme, but once these

became law, there would be no obstacle to Article 52

being deemed to apply directly to the Member States.

The free circulation of people is a fundamental prin-

ciple of the Common Market. The following answer is

proposed, Article 52 of the Treaty of Rome, would

produce, from the end of the period of transition,

direct effects in the relations between Member States

and their nationals and would enforce for individuals

rights which national Courts would have to safeguard,

as regards the prohibition of discrimination founded on

nationality.

Oral Procedure

(1) First Question.

The

Belgian Bar

submits that admission in the various

Member States of foreigners to the profession of lawyer

can only be determined by legislation passed by the

National Parliament. As a lawyer alone could assume

the defence of accused

inter alia,

it would be impossible

to associate the different activities of the legal profes-

sion with the principle of freedom of establishment.

(2) Second Question.

The

British and Irish Governments

consider that Art.

52 is not directly applicable to Member States, as its

execution would require additional laws in order that

the principle of freedom of establishment should be

realised in a practical way.

Law Stated

(The Court has issued no less than 56 conclusions of

which the following are the most important. All conclu-

sions are preceded by the word "Whereas

.")

165