The Gazette 1988

GAZETTE

DECEMBER 1988

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".

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

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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

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