Brussels, 17/07/2014 (Agence Europe) - The fact that a national of a given member state returns there to practise the profession of lawyer under a title obtained in another member state is not an abuse of the right of establishment, but constitutes the exercise of one of the objectives of the directive on the establishment of lawyers (98/5/EC).
That was the response of the Court of Justice of the EU, in a judgment returned on Thursday 17 July (joint cases C-58/13 and C-59/13), to the Consiglio nazionale forense (CNF), the Italian national order of lawyers, which had asked if a member state which suspected that the person in question had taken advantage of the practice described above in order to get round the national rules on access to the profession could refuse to include that person on the national register of lawyers.
The Court responded in the negative. Although it is true that the member state must be able to prevent their nationals from abusing EU norms (in this case, the freedom of establishment) in order to circumvent national legislation, they must demonstrate that the practice in question runs counter to the European rules, despite being formally respected, and that the person in question intends to obtain an undue advantage.
However, the directive on the establishment of lawyers is a mechanism for the mutual recognition of qualifications, under which the state of establishment (in this case, Italy) must register a migrant lawyer who is a national of any member state, with a view to his or her inclusion on the register of lawyers of the member state in which the title was obtained (in this case, Spain).
On these grounds, the Court takes the view that the fact that an EU national who obtained a university degree in his or her own country goes to another member state of his or her choice in order to qualify as a lawyer and subsequently returns to the country of origin in order to practise the profession under this title is inherent to the exercise of a fundamental freedom guaranteed by the Treaty and one of the aims of the directive, which is to facilitate the permanent exercise of the profession in member state other than the one in which the professional qualification was obtained. (FG)