Case C-359/09, Donat Cornelius Ebert

This was an interesting case on the relationship between the Professional Qualification Directive and the Lawyers Directive
  
The European Professional Qualification Directive (Directive 89/48) established a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration. Directive 98/5, generally known as the Lawyers Directive, provides a comprehensive framework for attorneys wishing to practice in an EU Member State other than the one in which they were formally trained.

The reference had been made in the course of proceedings between Mr Ebert, a German national and lawyer registered as a “Rechtsanwalt” at the Düsseldorf Bar (Germany), and the Budapesti Ügyvédi Kamara (Budapest Bar Association, Hungary) as to the right claims by Mr Ebert to use the title “ügyvéd” (lawyer in Hungary) without being a member of the Bar Association.

The national court asked first of all whether Directive 98/5 excluded the application of Directive 89/48, as the detailed rules laid down in Art. 10(1) and (3) of Directive 98/5 were the only means for lawyers from other Member States to gain access to the title of lawyer of a host Member State, or whether the two directives complement one another by establishing, for lawyers from Member States, two ways to gain admission to the profession of lawyer in a host Member State under the professional title of the latter State.

The Court held Directive 98/5 did not deprive a lawyer, in particular where he had not yet effectively and regularly pursued a professional activity for a period of at least three years in the host Member State, of the possibility of applying to take up the profession of lawyer under the title of that Member State by relying on Directive 89/48.

The holder of a “diploma’, within the meaning of Art. 1(a) of Directive 89/48, such as Mr Ebert, enjoyed, in accordance with Art. 3, first paragraph, subparagraph (a) thereof, access to the regulated profession of lawyer in the host Member State. The Court however held that, since the profession was one whose practice required a precise knowledge of national law and an essential and constant element of which was the provision of advice and/or assistance concerning national law, Art. 3 of Directive 89/48 as amended did not prevent the host Member State from requiring, pursuant to Art. 4(1)(b) thereof, that the applicant take an aptitude test, provided that that Member State first verified whether the knowledge acquired by the applicant in the course of his professional experience was capable of covering, in whole or in part, the substantial difference referred to in the first subparagraph of that latter provision (see Case C‑118/09 Koller [2010]).

It followed that a lawyer from a Member State might gain admission to the profession of lawyer, in a host Member State where that profession was regulated, and practise under the professional title awarded by it, either under Directive 89/48 or Art. 10(1) and (3) of Directive 98/5.

Therefore, the Court found that Directives 89/48 and 98/5 complemented one another by establishing, for lawyers from Member States, two means for gaining admission to the profession of lawyer in a host Member State under the professional title of that State.

Furthermore, the national court asked, in essence, whether Directives 89/48 and 98/5 precluded national rules laying down the requirement to be a member of a body such as a Bar Association in order to practise the profession of lawyer under the title of lawyer of the host Member State.

The Court reiterated that even lawyers practising under their home-country professional title in a host Member State were subject to the same rules of professional conduct as lawyers practising under the professional title of that State (see, to that effect, Case C-225/09 Jakubowska [2010]).

The Court held that neither Directive 89/48 nor Directive 98/5 precluded the application, to any person practising the profession of lawyer in a Member State, particularly as regards the taking up or pursuit thereof, of national provisions laid down by law, regulation or administrative action justified by the general good, such as rules relating to organisation, qualifications, professional ethics, supervision and liability.

It was for the national court to ascertain whether the Budapesti Ügyvédi Kamara had applied those rules in accordance with the rules of European Union law and, in particular, the principle of non-discrimination (see, to that effect, Case C-19/92 Kraus [1993]; Case C-564/07 Commission v Austria [2009]).

The Court therefore held that neither Directive 89/48 nor Directive 98/5 precluded national rules laying down the requirement to be a member of a body such as a Bar Association in order to practise the profession of lawyer under the title of lawyer of the host Member State.