The Gazette 1974

Interpretation of Article 52

(1) WHEREAS the Belgian Conseil d'Etat asks if

Article 52 is, at the end of the period of transition, a

law which is directly applicable to Member States.

(2) AND WHEREAS the Belgian, Luxembourg, the

British and Irish Governments have submitted that

such an interpretation could not be given, because it

would require additional legislation to put it into force,

which implies a general programme to be subsequently

implemented by directives, and that a national Judge

is precluded from interpreting Community Law directly.

(3) AND WHEREAS the German and Netherlands

Governments, following the judgment in

Lutticke

(June

1966), consider that the rules imposing upon Member

States an obligation which they must execute within a

prescribed time become automatically directly appli-

cable if this obligation has not been fulfilled within

that time, which implies that at the end of the transi-

tion period, Article 52, is a law which is itself complete

and juridically perfect.

(4) AND WHEREAS, if such an interpretation is

accepted, the general programmes and the directives

issued pursuant thereto would only be important dur-

ing the period of transition, as the principle of freedom

of establishment would be fully realised once this period

had ceased.

(5) AND WHEREAS the Commission considers that

the principle of freedom of establishment could at least

be applied in full at the end of the period of transition

in relation to certain matters, such as discrimination

imposed upon the ground of nationality as being a

violation of Article 7 of the Treaty but that Article 54

foreshadows a general programme to be followed by

directives to bring Article 52 into full effect.

(6) AND WHEREAS the principle of freedom of

establishment is destined to accomplish two functions :

First,

to eliminate during the transition period, the

obstacles which would impede the realisation of free-

dom of establishment; and the

Second,

to introduce in

the national legislation of Member States laws destined

to facilitate the effective exercise of that freedom and

that the effect of Article 52 should be determined

within the ambit of collaboration between the national

competent administrations and the adaptation of prac-

tical administrative procedures foreshadowed by Article

54.

(7) AND WHEREAS the rules of national remuner-

ation, being one of the fundamental juridical rules of

the Community, can be invoked directly by the nati-

onals of all Member States, and that thus Article 52

prescribes an obligation leading to a definite result,

whose obligation should be facilitated by the execution

of progressive measures, which interpretation thus con-

forms with Article 8 (7) of the Treaty, which states

that the transition period constitutes the extreme limit

for the coming into operation of the rules foreshadowed

by the Treaty.

(8) AND WHEREAS consequently, after the expir-

ation of the transition period the directives under Art.

54 relating to the right of establishment have become

superfluous in order to implement regulations in regard

to national remuneration, as the Treaty itself has deter-

mined that they would be directly applicable.

(9) AND WHEREAS in view of the aforementioned

argument Article 52 of the Treaty is a law directly

applicable within the Member States at the end of the

transition period notwithstanding the absence of direc-

tives relating thereto.

Interpretation of Article

55 (1)

(10) AND WHEREAS in interpreting the meaning ot

the words in Article 55 (1) "activities which in that

State are connected, even occasionally, with the exer-

cise of official authority" the exception mentioned r'

Article 55 is to be interpreted as :

Firstly

the onty

activities inherent in the legal profession which

afC

connected with the exercise of official authority

Secondly

if the whole legal profession is to be deemed

an exception because it is connected with that

exercise-

(11) AND WHEREAS the Belgian Bar and

Lu x em-

bourg Governments consider that the legal profession

would have to conform to the Treaty as regards the

rules relating to the right of establishment because it

connected organically with the function of the civi

service relating to justice, and that such activities

would

make a lawyer an indispensable aid to justice.

(12) AND WHEREAS the German, Belgian, British,

Irish and Dutch Governments, as well as the Commit

sion, consider that the exception stated in Art. 55 re-

lates exclusively to the internal rules of the

different

professions concerned, which may be connected

tively with the exercise of official authority, provide

they are ntt associated with this exercise in the norm

way.

(13) AND WHEREAS the fact that, within the

Treaty the principles relating to freedom of establish-

ment and to national remuneration are deemed essen-

tial and therefore the exceptions contemplated by Ad-

55 (1) could not receive a meaning which would sui*

pass the aim to which such an exception was to be

made, and therfore that Article 55 (1) satisfies this

necessity by limiting the exclusion of nationals to those

activities, which taken by themselves, constitute only

direct and specific connection with public authority-

(14) AND WHEREAS it is contemplated that

aI1

exception foreseen by Article 55 may apply to a profes-

sion if the effect of freeing a profession would imp°f

upon the Member State the obligation to admit even i'

a temporary way, some non-nationals to State function-

connected with public authority.

(15) AND WHEREAS such a contemplated exten-

sion would be inadmissible, as within the exercise of

a11

independent profession, the activities deemed to be

connected with official authority would constitute

element which could be detached from the profession

activity of the lawyer taken as a whole.

(16) AND WHEREAS the eventual application

restrictions to the principle of freedom of establishment

foreshadowed by Article 55 should be considered sep

ately by each Member State, having regard to the

national laws applicable to the organisation and exer-

cise of the particular profession—and that nevertheless

the common character of the Community must also be

taken into account as specifying the limits set out b)

Article 55 to the exceptions allowed to the principle

freedom of establishment so that the useful effect of th

Treaty resulting from unilateral laws passed by Membe'

States would be nullified.

(17) AND WHEREAS, provisions in the legal profes-

sions which would comprise regular contacts with the

Courts do not constitute as such activities connected

with the exercise of official authority—and that th

most typical activities of the lawyers' profession, such

as consultation and legal aid to clients, as well

appearing for and defending parties in Courts, are

deemed to be activities connected with the exercise °

public authority, even if the presence or aid of the

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