CJEU: Member states cannot restrict registration of EU lawyers and must apply proportionate practice conditions
EU member states can not place their own conditions on the registration of lawyers from another member state and must apply the principle of proportionality to conditions on their ability to practise, the Court of Justice of the European Union (CJEU) has ruled.
The court delivered its judgment yesterday on a case brought by Monachos Eirinaios, a Greek monk who requested in 2015 that Athens Bar Association enter him on the special register of the Athens Bar as a lawyer, having acquired that professional status in Cyprus.
The bar association rejected the application on the basis of national provisions relating to the incompatibility between practice of the profession of lawyer and the status of monk, taking the view that those provisions also apply to lawyers wishing to practise in Greece under their home-country professional title.
Mr Eirinaios challenged that decision before the Council of State, the supreme administrative court in Greece, which asked the CJEU whether it was compatible with EU law to prohibit his registration despite him having a professional qualification from another member state.
In the judgment, the court interpreted Directive 98/5/EC, which allows lawyers in the EU to practice in a member state other than that in which their professional qualification was obtained.
The court noted that the Directive establishes a mechanism for the mutual recognition of the professional titles of migrant lawyers wishing to practise under the professional title obtained in the home member state, harmonising fully the preconditions for exercise of the right of establishment conferred by the Directive.
Therefore, the court has already held that the presentation to the competent authority of the host member state of a certificate attesting to registration with the competent authority of the home member state is the only condition to which registration in the host member state of the person concerned may be subject. The national legislature cannot add further conditions to the preconditions for registration with the competent authority of the host member state.
However, a distinction should be drawn between registration with the competent authority of the host member state, which is subject solely to this condition, and actually practising as a lawyer in the host member state, in which respect the lawyer is subject to that member state’s rules of professional conduct.
The court found that rules of professional conduct, unlike those concerning the preconditions for registration, have not been harmonised and may therefore differ considerably between the home member state and the host member state.
In that regard, the court stated that it is permissible for the national legislature to prescribe such guarantees, provided that the rules laid down for that purpose do not go beyond what is necessary in order to attain the objectives pursued.
The court pointed out, however, that in order for the rules of professional conduct applicable in the host member state to be in compliance with EU law, they must in particular comply with the principle of proportionality, which means that they are not to go beyond what is necessary in order to attain the objectives pursued. It is for the Council of State in Greece to carry out the necessary checks in respect of the rule regarding incompatibility at issue.
The court concluded that national legislation which prohibits a monk who has the status of lawyer, and who is registered as a lawyer with the competent authority of the home member state, from registering with the competent authority of the host member state in order to practise there under his home-country professional title is contrary to the Directive.