The Gazette 1977

GAZETTE

MAY-JUNE

degree in French law. In 1975 he also obtained the

Certificat d'Aptitude á la Profession d'Avocat (C.A.P.A)

(qualifying certificate for the profession of Advocate).

Mr. Thieffry then applied to take the oath with a view

to his registering for the period of practical training at the

Ordre des Avocats á la Cour de Paris (Paris Bar). His

application was rejected on the ground that he offered no

diploma evidencing a licentiate's degree or a doctor's

degree in French law, as required by the French Law

reforming certain legal and judicial professions.

As a result, the Cour d'Appel, Paris, was led to ask the

Court of Justice to give a ruling on the following

preliminary question:

"When a national of one Member

State desirous of exercising the profession

of Advocate in another Member State has obtained

a diploma in his country of origin which has been

recognised as an equivalent qualification by the

University authority of the country of establishment

and which has enabled him to sit in the latter

country the Advocate's professional qualifying

examination — which he has passed — does the act

of demanding the national diploma prescribed by

the law of the country of establishment constitute, in

the absence of the directives provided for in Article

57 (1) and (2) of the EEC Treaty, an obstacle to the

attainment of the objective of the Community

provisions in question?"

The Court of Justice referred to the reasoning behind

the principle of freedom of establishment and stated that

under Article 3 of the Treaty, the activities of the

Community shall include

inter alia

the abolition of

obstacles to freedom of movement for persons and

services. With a view to attaining this objective the first

paragraph of Article 52 provides that restrictions on

freedom of establishment shall be abolished by

progressive stages in the course of the transitional period,

and Article 53 underlines the irreversible nature of the

liberalization achieved in that regard.

In order to make it easier for persons to take up and

pursue activities as self-employed persons, Article 57

assigns to the Council the duty of issuing Directives

concerning, first, the mutual recognition of diplomas and,

secondly, the co-ordination of the provisions laid down by

laW or administrative action in Member States concerning

the taking up and pursuit of such activities.

In the general programme for the abolition of

restrictions on Freedom of Establishment, which was

adopted on 18 December 1961, the Council proposed to

eliminate not only overt discrimination but also any form

of disguised discrimination.

The principle of Freedom of Establishment, subject to

observance of professional rules justified by the general

good, is one of the objectives of the Treaty.

Those objectives may be attained by measures adopted

by the Member States, in so far as Community law itself

has made no special provision. However, where the

Freedom of Establishment provided for in Article 52 can

be ensured by means of national provisions, the practical

benefit of such freedom cannot be denied to a person

subject to Community law for the sole reason that, for a

particular profession, the directives provided for by

Article 57 of the Treaty have not yet been adopted.

As regards the present case in particular, the question

has arisen whether a distinction should be drawn, as

regards the equivalence of diplomas, between University

recognition, granted with a view to the pursuit of certain

studies, and recognition having "civil effect", granted with

a view to the pursuit of a professional activity.

Since that distinction fails within the ambit of the

national law of the different States, it is for the national

authorities to assess its consequences, taking into account

the objectives of Community law.

The fact that National Legislation provides for

recognition of equivalence only for univeristy purposes

does not in itself justify a refusal to accept such

equivalence as evidence of qualification to enter a

profession.

The Court has ruled that when a national of one

Member State desirous of exercising a professional

activity such as the profession of Advocate in another

Member State has obtained a diploma in his country of

origin which has been recognized as an equivalent

qualification by the competent authority under the

legislation of the country of establishment and which has

thus enabled him to sit and pass the special qualifying

examination for the profession in question, the act of

demanding the national diploma prescribed by the

legislation of the country of establishment constitutes,

even in the absence of the directives provided for in Article

57, a restriction incompatible with the freedom of

establishment guaranteed by Article 52 of the Treaty.

IRELAND WILL TAKE FRANCE TO COURT

OVER ACCESS TO LAMB MARKET

Ireland is bringing the French Government before the

European Court of Justice for failing to allow free access

to the French market for Irish lamb contrary to the

principles of the Common Market. At a press conference

in Dublin recently, the Minister for Agriculture, Mr.

Clinton, announced that Ireland's case would be placed

before the Court and he expected the proceedings to be

completed within six months.

The decision to instigate legal action against the

French, who open and close their markets to imports in

order to ensure high prices for French lamb producers,

has been forced on the Minister by the growing

disappointment suffered by Ireland's 30,000 sheep

producers, who were assured of access to the high-priced

Continental lamb market on entrv to the EEC.

Mr. Clinton said that he had been completely

"deceived" over the past four years by the French who

had led him to believe they were favourably disposed

towards allowing free access to their market for Irish

lamb, but each time they had approached a solution "the

French simply backed away".

He said the delay in bringing legal action against the

French was also due to the Irish Farmers' Association

persuading him that they would gain access to the French

market for Irish lamb through their influence with the

French farmers' union. Now, he said, he was not prepared

to wait any longer.

The case would clarify the situation and he was certain

that the manner in which the French protected their

market was totally illegal. The country's sheep farmers

would know where they stood by the end of the year.

In this light the prospects for sheep in the future were

good, Mr. Clinton said. It depressed him to hear that

sheep production was continuing to decline because

farmers lacked confidence at a time when prices were

never better.