Thieffry v. Conseil de l'Ordre des Avocats A la Cour de Paris (Paris Bar Council)

(Case 71/76)

Before the Court of Justice of the European

Communities

ECJ

(The President, Kutscher C.J.; Donner and Pescatore PP.C.; Mertens de Wilmars,

Sorensen, Lord Mackenzie Stuart , O'Keeffe, Bosco and Touffait JJ.) M. Henri

Mayras, Advocate General.

28 April 1977

Reference by the Cour d'Appel de Paris under Article 177 EEC. Constitutional law. Interpretation. Freedom of establishment. In the context of the abolition of restrictions on freedom of establishment, the General Programme for the Abolition of Restrictions on Freedom of Establishment (adopted by the E.C. Council on 18 December 1961 under Article 54 EEC) provides useful guidance for the implementation of the relevant provisions of the EEC Treaty. [14] Constitutional law. Freedom of establishment. Freedom of establishment, subject to observance of professional rules justified by the general good, is one of the objectives of the EEC Treaty. [15] Community law and national law. Freedom of establishment. If freedom of establishment under Article 52EEC can be ensured in a given member-State under current laws or practices, a person entitled to such freedom may not be denied it merely because no EEC directives have been enacted for his particular occupation. It is consequently incumbent upon the relevant national

authorities (whether public or private) to apply such rules in accordance with the EEC objective of freedom of establishment. [17]-[18] Freedom of establishment. Professional qualifications. University degrees. Where a foreign diploma (issued in an EEC member-State) has been recognised by the 'competent authority' of the host member-State as an equivalent qualification, a Community citizen who applies to be admitted to professional practice (in casu , as an advocate) in the host State on the basis of having passed the specific professional examination together with the said ' recognised' foreign diploma, may not be denied recognition of the diploma for the purpose of such admission solely because it is not a national diploma of the host State. However, where the foreign diploma has been recognised by*374 the university authorities of the host State as equivalent for university purposes, it is for the competent host State authorities to determine whether such university recognition shall also constitute valid evidence of professional qualification. [19]-[24] The Court held that where access to a profession (the Paris Bar) depended upon possession of a national university degree and the successful passing of a professional examination, a Community citizen (a) was entitled to qualify and be admitted under the national provisions, even in the absence of EEC directives under Article 57 EEC, and (b) was entitled to rely on a degree of a university of another member-State which had been recognised as equivalent to the national degree. It left, however, open whether recognition of such a degree by university authorities for university purposes would also amount to recognition for professional purposes, that being a question of fact and for assessment by the competent national authorities themselves in the light of the Community principles of freedom of establishment. Representation Robert Collin, of the Paris Bar, for the appellant. Simon Gueullette, of the Paris Bar, for the respondent body. Paul Leleux, Legal Adviser to the E.C. Commission, for the Commission as amicus curiae. Amicus briefs were also submitted by the French and British Governments. The following cases were referred to by the Advocate General in his opinion: 1. Vaccaro (Cour d'Appel de Paris) , 30 October 1974. 2. Sotgiu v. Deutsche Bundespost (152/73), 12 February 1974: [1974] E.C.R. 153. 3. Reyners v. the Belgian State (2/74), 21 June 1974: [1974] 2 C.M.L.R. 305, [1974] E.C.R. 631.

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Facts Of Belgian nationality, Jean Thieffry obtained a doctorate in Belgian law at the University of Louvain on 23 July 1955. From 1956 to 1969, he practised as an Advocate ('avocat') at the Brussels Bar. After a period in London, during which he assisted a Barrister, he established himself in Paris, where he is collaborating in the chambers of an Advocate of the Paris Bar and teaching law. On 5 December 1974, Mr. Thieffry obtained from the University of Paris 1-- Pantheon Sorbonne--recognition of the diploma for his*375 doctorate in Belgian law as a qualification equivalent to a licentiate's degree in French law. On 18 November 1975 he obtained the Certificat d'Aptitude a la Profession d'Avocat (C.A.P.A.) (qualifying certificate for the profession of Advocate) from the Institut d'Etudes Judiciaires of the University of Paris 2. 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 a la Cour de Paris (Paris Bar). By an order of the Conseil de l'Ordre (the Bar Council) of 9 March 1976 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 section 11 (2) of Act 71-1130 of 31 December 1971, reforming certain legal and judicial professions. [FN1]On 19 March 1976, Mr. Thieffry appealed against this decision before the Cour d'Appel, Paris. FN1 J.O.R.F., 5 January 1972 p. 131. By a judgment given in chambers on 13 July 1976, the Cour d'Appel, composed of the first three Chambers, decided, pursuant to Article 177 of the EEC Treaty, to stay the proceedings until the Court of Justice had given a preliminary ruling on the following 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 examinations--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?' ARGUMENT [FN2]

FN2 Because of the importance of this case as marking the entry of the Court onto a particularly subtle path, we are publishing the summary of arguments as well.--Ed. The Appellant Jean Thieffry, the appellant in the main action, takes the view that the decision of the Conseil de l'Ordre des Avocats au Barreau de Paris (Paris Bar Council) goes against the fundamental principles which follow from the application of the EEC Treaty and against the purport of the judgment given by the Court of Justice on 21 June 1974 in Reyners v. the Belgian State (2/74) [FN3] on reference by the Conseil d'Etat, Belgium, for a preliminary ruling. FN3 [1974] 2 C.M.L.R. 305, [1974] E.C.R. 631. (a) The solution of the problem submitted to the Court of Justice rests on a certain number of fundamental principles defined by the Court which govern the application of Community law, in particular*376 those of the autonomy, the direct effect and the supremacy of Community law. In so far as the French law goes against these principles, it is inapplicable; any law which is contrary to Community law is applicable only within the limits set by the Community rules, which prevail over the national rules. The member-States cannot derogate from the principle according to which, on the expiry of the transitional period, those Community rules which do not require any further legal instrument in order to be applied must be fully and entirely put into effect. In particular, Article 52 of the EEC Treaty is a directly applicable provision, and it is so notwithstanding that in a given field the directives referred to in Articles 54 (2) and 57 (1) of the Treaty may be lacking. Moreover, member-States are forbidden to apply measures having a restrictive effect which goes beyond what is necessary for the purposes of attaining the objective of the national or Community provisions in question. (b) Among the techniques used in the national rules relating to the right of establishment in order to favour national protectionism one of the most frequent is discrimination based on nationality. The discrimination in question in the main action pertains to this criterion: it is discrimination exercised in relation to the nationality of diplomas. Such considerations go against the fundamental objectives of the EEC Treaty. The aim of this Treaty is to bring into being a single market, within which, among other things, persons may move freely and all obstacles to their establishment must be abolished without any distinction on grounds of nationality. Such is, in particular, the object of Article 52 of the Treaty. It emerges from the judgment of the Court in the Reyners case that since the end of the transitional period that provision has been directly applicable, notwithstanding the absence of the directives prescribed by the Treaty. Establishment is the rule, the harmonization measures, in particular those relating to diplomas, referred to in Article 57 (1), an exception. Accordingly, discrimination based on the criterion of nationality must be rejected, whether it is

applied to the person himself or whether it takes the form of a national law demanding a national diploma, and whenever a solution can be found to the problem raised by the absence of mutual recognition of diplomas, that solution must be adopted if it answers to the national and Community objectives in question. (c) The refusal to permit the appellant in the main action to take the oath with a view to his registering for the period of practical training on the ground only that he does not fulfil the stipulation of the French law requiring that the person concerned shall have a licentiate's degree in law conferred by a French university, goes directly against the EEC Treaty. Doubtless that law is not open to criticism on the grounds that it provides that a national of a member-State who wishes to practise*377 as an Advocate in France must have educational qualifications corresponding to the licentiate's degree in French law. A directive on the equivalence of diplomas would be apt to resolve this problem more simply; but the Reyners judgment establishes that such a directive is not indispensable. The decisive point is that the check carried out by the French university before recognising the doctor's degree in Belgian law as a qualification equivalent to the licentiate's degree in French law enabled a full comparison of knowledge to be made, therefore the requirement of the French law in this respect is satisfied. Since all the other requirements are satisfied, the absence of a licentiate's degree in French law cannot constitute an obstacle to acceptance for the period of practical training, since the appellant in the main action has proved that he has knowledge corresponding to that diploma. Objectively he satisfies the requirements for entry into the profession of Advocate in France, account being taken of the effect of Article 52 of the EEC Treaty on the analysis of the French provision and the application thereof. (d) Article 52 imposes an obligation to attain a particular result, an obligation which goes beyond merely equal national treatment for nationals of a member-State other than that in which establishment is to take place. It imposes on the competent national authorities an obligation to seek the means whereby establishment can be achieved in accordance with the aims of the national law. A qualification equivalent to the diploma must be recognised as valid. To insist on the national diploma alone is contrary to Articles 7 and 52 of the Treaty. At all events, when the candidate satisfies all the other requirements for admission to the profession of Advocate and when he has a qualification equivalent to the required national diploma, to insist on that diploma alone is more restrictive than is necessary to attain the objectives of the national and Community provisions in question. (e)Therefore the question referred to the Court of Justice should be answered in the following terms: 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 examinations--which he has

passed--the act of demanding the national diploma prescribed by the law of the country of establishment constitutes, in the absence of the directives provided for in Article 57 (1) and (2) of the Treaty of Rome, an obstacle to the attainment of the objective of the Community provisions in question. The Government of the French Republic (a) The argument based on the recognition of a diploma conferred in another member-State as a qualification equivalent to the*378 national diploma is irrelevant for the purposes of answering the question referred for a preliminary ruling. In fact, a distinction should be drawn between those decisions of university authorities which have civil effects and those which have academic effects. The former confer rights upon their recipients which can be enforced even outside the university, the latter confer rights only in respect of the university institution. The recognition of diplomas in question in this case belongs to the latter category. Such recognition gives the right to follow studies from one university to another, but does not involve any civil effect, in particular the right to practise a profession. At all events, the Court of Justice recognises that it does not have jurisdiction, within the framework of the procedure under Article 177, to interpret or classify a rule of national law. Therefore, in the absence of Community directives on the mutual recognition of diplomas, the requirement of the national diploma should purely and simply be left as it stands. (b) The effect of the direct applicability of Article 52 of the EEC Treaty, acknowledged by the Reyners judgment, is to affirm the rule on equal treatment with nationals in the area of the right of establishment. In the present case, there is no doubt that the rule on equal treatment with nationals is ensured: the problem would be the same if the appellant in the main action was of French nationality. The question is rather whether the direct effect of Article 52 makes not only the requirement of nationality but also the requirement of the national diploma unlawful. In this connection it should be pointed out that, in the Reyners judgment, the Court of Justice drew a distinction between two functions which the Community directives are designed to accomplish: 'negative' function, consisting of the elimination of obstacles to attaining freedom of establishment; these obstacles were to be removed during the transitional period and directives of this kind became superfluous on the expiry of the said period, since Article 52 applied from that time with direct effect; 'positive' function, consisting of the introduction into the laws of the member-States of provisions intended to facilitate the effective enjoyment of freedom of establishment; the expiry of the transitional period is without effect on the accomplishing of this second function, and the attaining of the said freedom remains conditional upon the existence of directives of this kind. According to the decision in the Reynerscase the direct effect of Article 52 is not general, but limited to such obstacles as correspond to the first of these two

functions. Under the first category the Court mentions only the rule on equal treatment with nationals, and it relates 'the set of provisions in Article 57' to the second category, in regard to which Article 52 does not have direct effect. Therefore questions of mutual recognition of diplomas form part*379 of the task of legislative harmonisation to be carried out by means of directives, even after the transitional period. This interpretation is the one adopted by the Commission which, following the Reyners judgment, withdrew the directives removing restrictions, but, out of the co-ordinating directives, maintained those directed towards the mutual recognition of diplomas. On 16 June 1975 the Council, for its part, adopted a directive on the mutual recognition of physicians' diplomas. This solution is the only one which is compatible with the specific nature of the subject of the right of establishment, in so far as national diplomas must not be considered in isolation, but in relation to the studies which they evidence and the professions to which they can give access, these studies and professions being organised in most cases in very different and heterogeneous ways from one member-State to another. (c) As to the idea of the balance between retaining the requirement of a national diploma and pursuing the Community objectives in question, it should be pointed out that normally the requirement of a national diploma does not appear to constitute an obstacle to the exercise of freedom of establishment going beyond what is necessary to guarantee the security of individuals before the law and to ensure the proper public administration of justice. Indeed, no method is better suited than this requirement to ensuring that the foreign professional gives proof of a sufficient knowledge of the language of the country in which he wishes to practise his profession and of the legal system, in particular the law of procedure, of that country. Starting from a case as special as that of the appellant in the main action, the Court cannot lay down a decision having general applicability to the whole of such a complex subject. (d) At all events, the Court should not modify the case law established in the Reyners case by a judgment of principle which can be generalised to the whole of the subject. Even if it is true that Advocates' studies, if not the profession, are not organised very differently from one member-State to another the same does not apply to a large number of other activities. For these, a precise 'legal policy' is still indispensable for harmonising the factual situations, of which diplomas are only the reflection. Generally speaking, for most of the professions affected by the right of establishment, the field of practical activities which correspond thereto never coincides from one member-State to another and sometimes even applies to situations which in reality are very different. The organisation of the studies, which the diplomas evidence, also varies considerably from one member-State to another, both as regards the syllabus and the length of the course. If Article 52 of the EEC Treaty were to be applicable notwithstanding the absence of directives, most of the activities affected by*380 the right of establishment would be liable to be disorganised thereby. A particular case of a very special

nature should not be used as a criterion for regulating in its entirety the subject of the recognition of diplomas, which taken as a whole is an extremely complex one. The Government of the United Kingdom The U.K. Government stresses that the question referred to the Court of Justice is such as to raise problems of a general nature on the recognition of foreign diplomas and that any decision tending to rule on those problems in a general way would be inappropriate. (a) In the United Kingdom, access to the legal professions is governed by the professions themselves, according to particular procedures. Moreover, the legal order of the United Kingdom differs considerably from that of most of the member-States, so that, with certain exceptions, a diploma conferred by a continental university does not provide a solid basis for admission to any legal profession in the United Kingdom. (b) Article 57 of the EEC Treaty provides for the adoption of directives relating to mutual recognition of official diplomas. One essential precondition for mutual recognition is that the diplomas in question should be equivalent regarding the subject, the experience and the level of knowledge which they sanction. Such equivalence can be attained by directives aimed at co-ordinating conditions of training and ensuring that these correspond to a large extent. In the absence of such directives recognition of foreign diplomas with a view to exercising a right of establishment or of freedom to provide services under the Treaty cannot be demanded--except in so far as it is already expressly authorised by national legislation. In that case, any discrimination on the basis of nationality, be it the nationality of the holder of the diploma or the nationality of the university, would obviously be incompatible with the provisions of the Treaty. The Commission of the European Communities The question raised in this case which was not dealt with by the Court's decision in the Reyners case consists of determining more precisely what is the nature of the 'restrictions' on the freedom of establishment which are prohibited by Article 52 of the EEC Treaty; in particular, is such a restriction constituted by a legislative obstacle to recognising that a foreign diploma, recognised in the host country as an equivalent qualification, has civil effect, giving access to a specific profession? (a) It follows from the spirit and the system of the Treaty, and more particularly from the provisions of the chapter on freedom of establishment, that such a rule does constitute a restriction which*381 falls under Article 52 and that therefore it cannot be applied against a national of another member-State. Freedom of establishment is a fundamental right conferred on all the citizens of the member-States. Any limitations on this fundamental right must be interpreted strictly and can be applied against them only if they are objectively justified. The implementation of Article 52 is not conditional upon the adoption of

directives under Article 57. The purpose of such directives is to lay down measures 'intended to assist the effective exercise of the right of establishment'. Therefore the role of such directives is only subsidiary, even if that role may be indispensable in certain circumstances. The only purpose of mutual recognition of diplomas is to remove the obstacle deriving from the legitimate concern of a member-State to restrict access to certain professions to persons giving proof of specific professional qualifications, confirmed by diploma, by means of assuring that member-State that the professional qualifications acquired in another member-State are equivalent. If that result was obtained by other means, in particular by national measures, a directive would not be necessary to ensure the effective exercise of the right of establishment. If a person having the right of establishment proves by means of documents issued in the host country by institutions authorised to do so that he has received legal education abroad equivalent to that sanctioned by the licentiate's degree in the host country, and that on the basis of that equivalence he has been allowed to sit and has passed an examination preparing specially for the profession of Advocate, then any directive on mutual recognition under Article 57 (1) is superfluous and cannot be a prerequisite for the exercise of his right of establishment. In these circumstances, the formal requirement of a diploma issued by an educational institution of the host country no longer has any objective justification and must be considered as a restriction within the meaning of Article 52. (b) The objections which can be raised against this analysis are not cogent. This is true in the case of the statement, based on a rigid application of the principle of equal treatment with nationals, that a French national holding a foreign diploma recognised as an equivalent qualification in the same circumstances as the diploma of the appellant in the main action could not be admitted to a French Bar, that therefore there is no prohibited discrimination and that, on the contrary, the French national risks being the victim of a reverse discrimination. In fact, the argument to the effect that a national cannot invoke the EEC Treaty against obstacles raised to his establishment in his own country is, to say the least, debatable. This restrictive view*382 does not take into account the general objectives of the Treaty as regards the free movement of persons. For the application of Article 57 (1), the Council has confirmed the view propounding the objective nature of the recognition of diplomas. Freedom of establishment, in particular for holders of diplomas obtained in other countries of the Community, must be ensured on the same terms for nationals of other member-States and for nationals of the member-State in question. In any case, discrimination on the basis of nationality not only includes overt discrimination, but can also take the form of disguised discrimination. It follows both from the case law of the Court and from Title III (B) of the general programme for the abolition of restrictions on freedom of establishment of the Council of 18 December 1961, [FN4] that the conditions to which the right to take up or pursue activities as a self-employed person is made subject by any law,

regulation or administrative action and which, although applicable irrespective of nationality, mainly or exclusively impede foreigners in the taking up and pursuing of such activities, constitute restrictions within the meaning of Article 52 of the Treaty. The requirement of a French diploma is in fact a condition which impedes almost exclusively, and at all events mainly, nationals of the other member-States. FN4 J.O. 36/62. Since the right of establishment is an individual right, it is incumbent upon the court making the reference to examine each particular situation. In the present case, everything indicates that the appellant in the main action has a knowledge of French law which makes him perfectly qualified to practise the profession of Advocate in France. The holding of the Certificat d'Aptitude a la Profession d'Avocat (qualifying certificate for the profession of Advocate), a French diploma issued under the conditions laid down by French legislation for French nationals, can only reinforce the conclusion that in such a case Article 52 must be fully and completely applied independently of whether the Council has previously adopted directives on mutual recognition under Article 57 (1) of the Treaty. The distinction between the academic equivalence of diplomas and their civil effect in relation to taking up a specific profession is also irrelevant. According to the Decree of 15 February 1921 on qualifications equivalent to the level of licentiate with a view to the doctorate the recognition of a qualification as equivalent to the licentiate's degree in law is granted only with a view to the doctorate and cannot confer any right to the licentiate's diploma. However this distinction is no longer compatible with Articles 52 and 57 of the EEC Treaty. The spirit of Article 57 (1) implies that recognised diplomas have equivalent value. Under the system of the Treaty, the legitimate interest of the member-States in protecting access to*383 certain activities or professions against foreigners is justified only by the necessity of restricting such access to persons possessing knowledge and qualifications equivalent to those which are acquired through the education given in the national institutions and which are required of their own nationals. For the purpose of protecting that interest, it is of little importance whether or not that knowledge and those qualifications are recognised in national law to have a formal civil effect. Mutual recognition is closely bound up with equivalence of knowledge acquired. Moreover it is odd to note that, in the present case, the recognition of equivalence granted to the appellant in the main action was not for the purpose of enrolling for the studies for a doctorate in the law faculties, but for the purpose of entering upon the special education for the profession in question and leading up to the Certificat d'Aptitude a la Profession d'Avocat (C.A.P.A.) (qualifying certificate for the profession of Advocate). Although it does not confer a right to enter the profession the obtaining of the C.A.P.A. without any doubt constitutes confirmation of fitness to practise that profession in France and consequently the appropriate knowledge of the substantive law and the procedure of that country. (c)Therefore the question referred by the Cour d'Appel, Paris, should be

answered in the following terms: 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 examinations, the act of demanding the national diploma prescribed by the law of the country of establishment constitutes, even in the absence of the directives provided for in Article 57 (1) and (2) of the EEC Treaty , a restriction within the meaning of Article 52 of that Treaty, in that such demand goes beyond what is objectively necessary to ensure that the national rules on admission to the profession of Advocate are observed. At all events, such a demand constitutes a disguised discrimination, in that, although it does not formally take nationality into account, it impedes mainly or exclusively nationals of the other member-States.

Opinion of the Advocate General (M. Henri Mayras) As I stated nearly three years ago in the Reyners case, [FN5]social and economic integration, the primary aim of the Treaty establishing the European Economic Community, involves the development of legal relations between member-States, and consequently the attainment of freedom of establishment in each of those States for persons assisting the adminstration of justice such as advocates, irrespective of their nationality. In other words, any obstacle to the entry to and*384 practice of that independent, liberal profession based on a criterion of nationality must be effectively abolished. FN5 [1974] 2 C.M.L.R. 305 , [1974] E.C.R. 631. On that occasion I registered my surprise at finding that the equality of treatment which is implied by the right of establishment had not really been attained more than four years after the end of the transitional period, in my opinion contrary to the clear, complete, unconditional and consequently directly applicable, provisions of Article 52 of the Treaty of Rome. It is true that the Council adopted a directive concerning the activity of advocates on 22 March 1977, but that directive concerns only freedom to provide services and not the right of establishment. The failure of the Community institutions, and in particular the Council, to adopt the directives provided for by Articles 54 and 57 of the Treaty did not seem to me such as to paralyse the effective implementation of Article 52. The Court followed me on this essential point. It based itself on Article 7 of the Treaty, which forms part of the 'principles' of the Community and provides that within the ambit of the Treaty and without prejudice to any special provisions contained therein, 'any discrimination on grounds of nationality shall be prohibited'. The Court inferred from this principle that Article 52 provides for its implementation in the particular sphere of the right of establishment. This finding led the court to decide:

(1) that in laying down that freedom of establishment shall be attained by the end of the transitional period, Article 52 imposes, upon all the member-States, an obligation to attain a precise result; (2) that the fulfilment of that obligation is not dependent upon the implementation of a programme of progressive measures in the form of the directives provided for both by Article 54 and by Article 57 of the Treaty, since the only purpose of those legal instruments is to facilitate the entry into and the practice of the professions referred to in each of the member-States; That consequently, since the end of the transitional period Article 52 is a directly applicable provision which creates individual rights, despite the absence in the sphere in question of the directives to which I have just alluded. For my part, I specified in my opinion that the directives referred to in Article 57 relating to the mutual recognition of diplomas as well as the co-ordination of provisions laid down by law, regulation or administrative action in member-States concerning the taking up and pursuit of activities as self-employed persons constitute a useful complement to the practical attainment of equality of treatment, but are not the necessary condition precedent therefor, except in the particular case, referred to in Article 57 (3), of the medical and allied and pharmaceutical professions. However, I was able to reach such a definite opinion owing to the particular facts of the Reyners case, because the question*385 referred to this Court by the Conseil d'Etat of Belgium for a preliminary ruling raised, in its pure form, the problem of equality of treatment applied to the profession of advocate, in the clearly circumscribed field of a condition pertaining to the nationality of the person concerned. As is known, Mr. Reyners, a Dutch citizen who had been brought up in Belgium, held the Belgium diploma of Doctor of Laws, and in the circumstances of that case the problem of the recognition of a foreign diploma as being equivalent to the national qualification required for admission to the Brussels Bar did not arise. This case, the Thieffry case, on the contrary, basically centres upon the effects of the recognition by the French university authority that the diploma of Doctor of Laws of the University of Louvain is equivalent to the French national diploma of licentiate in law. I shall put my cards on the table straightaway, and reveal my conclusion at the beginning of this opinion, by telling the Court that I have already reached the firm conclusion that, in the circumstances of the case before the Court today, the demand of the Paris Bar Council that the person concerned should possess the French diploma of licentiate in law constitutes, with regard to the principle of freedom of establishment, a disguised restriction on, or at least a legal obstacle to, the exercise by Community nationals of their right of establishment in the profession of advocate in France. I hope that I can convince your Lordships to take a similar view. However, before beginning an examination of the precise case before the Court, I consider it necessary clearly to state the facts behind the question submitted to the Court by the Cour d'Appel, Paris, for a preliminary ruling, even if it entails a repetition of details which have already been set out by the parties in the written

procedure and at the hearing of the oral arguments. Jean Thieffry, 46 years old, is of Belgian nationality; in 1955 he obtained the diploma of Doctor of Laws of the University of Louvain, and subsequently practised as an advocate at the Brussels Bar for more than 10 years; during that time he worked in collaboration with Mr. Van Reephingen, the President of the Bar Council, on the reform of the Belgian Judicial Code. He also became acquainted with English law by assisting a London barrister. Finally, he settled in Paris, where for some years he has assisted in the chambers of William Garcin. Furthermore, he also teaches comparative law, international law and French contract and commercial law. He has also written several articles, published in particular by the Jurisclasseurs Periodiques (a French legal review), concerning price control in France, international contracts and contractual liability comparatively in French, English and German law. *386 In other words, for more than 20 years, the appellant in the main action has in fact been practising the profession of advocate and he has demonstrated such remarkable qualities therein that William Garcin has recently offered him a partnership, subject to his becoming a member of the Paris Bar. With the aim of being admitted to that Bar, in 1974 Mr. Thieffry requested recognition from the University of Paris 1 that his Belgian diploma is equivalent to the French licentiate's degree in law. He obtained that recognition of equivalence, and I shall examine the procedure and effects thereof later on. Then he prepared the Certificat d'Aptitude a la Profession d'Avocat (C.A.P.A.) (qualifying certificate for the profession of advocate), the exams for which he sat and passed in 1975. Thereafter, he thought, nothing more stood in the way of the acceptance by the Conseil de l'Ordre de Paris (Paris Bar Council) of his application for membership of the Bar as an 'avocat stagiaire' (pupil). Unfortunately, the Conseil rejected that application by a decision of 9 March 1976, on grounds which call for careful scrutiny. On the report of Simon Gueulette--who represented the Conseil de l'Ordre at the oral procedure before this Court--the Conseil accepted the direct effect of Article 52 of the Treaty, but, basing itself on the Act of 31 December 1971 on the reform of the legal professions, that professional body took the view that the obligation to offer the French diploma of a licentiate's or doctor's degree in law which is imposed by section 11 of the said Act had ' not been repealed'by the Treaty; and that consequently, since he did not possess the licentiate's degree in law, Mr. Thieffry's application for membership had to be rejected. For the time being, I shall merely observe that this ground of rejection is mistaken on an essential point of law. It is incorrect to write that Article 52 of the Treaty of Rome--or the directives provided for by Articles 54 and 57--are such as to repeal the second paragraph of Section 11 of the Act in question. Just like secondary Community law, the Treaty can have the effect of rendering that national legislative provision unenforceable against Community nationals desirous of practising the profession of advocate in France. They cannot repeal it, because at all events the obligation to possess a French diploma remains

applicable to nationals of States which are not Members of the Community, unless there is a bilateral agreement providing for the recognition of equivalence of legal diplomas or rather for the automatic recognition of validity of certain foreign diplomas in France. Be that as it may, the applicant brought the matter before the Cour d'Appel, Paris, the court having jurisdiction over the decisions of the Conseil de l'Ordre, in particular regarding refusals to inscribe applicants on the roll; on 13 July 1976 the first three Chambers of*387 that court, the competent formation, sitting in Chambers, decided to stay the proceedings and to refer the following question to this Court for a preliminary ruling: '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 examinations--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 Treaty of Rome, an obstacle to the attainment of the objective of the Community provisions in question?' Worded in that way, the question is clear. It carefully avoids the mistaken statement of reasons which I felt that I had to point out in the decision of the Conseil de l'Ordre and it situates the debate in the proper legal area. Let me add that I have no doubt as to the admissibility of the request for a preliminary ruling or as to the jurisdiction of this Court to decide the issue. Thus, the Court is now able to give a cogent answer to the question so defined. For my part, I will set out the reasons for which it seems to me that, even in the absence of any Community directive relating to the mutual recognition of legal diplomas with a view to the practice of the profession of advocate, the act of demanding a national legal diploma of the country of establishment is, taking into account the conditions peculiar to France in the sphere of the education of advocates and their membership of the Bar, indeed ' an obstacle to the attainment of the objective of the Community provisions in question'. But first, it is important to explain the nature of the French system of admission to the national Bars. As has been said, this matter is currently governed by the Act of 31 December 1971, which moreover reiterates previous legislation on most points. Apart from verification by the Conseils de l'Ordre of the 'good character' of the future advocate, three conditions are imposed by Section 11 of the said Act: (1) Possession of French nationality, subject to any international agreements. According to the decision in the Reyners case, this first condition is no longer enforceable against a national of another member-State of the Community; I shall not come back to it; (2) Possession of a licentiate's or doctor's degree in law. Although not clearly stated, this is patently a question of possessing diplomas awarded by the French university authorities; (3) Apart from certain exemptions laid down by regulation which are not in

question here, possession of the Certificat d'Aptitude a la Profession d'Avocat. *388 This professional examination, specially designed for the education of candidates for the profession of advocate, was established in 1941, and today is regulated by Decree 72-715 of 31 July 1972. It is prepared and the certificate awarded by the institutes or centres of legal studies set up within the universities. Neither the possession of the licentiate's degree in law nor, a fortiori, of the doctor's degree is required for the purposes of the preparation of the Certificat d'Aptitude a la Profession d'Avocat, since students in the fourth year of a licentiate's degree may enrol for that preparation and sit the examination. However, it goes without saying that even if those students receive the Certificat d'Aptitude, they will subsequently have to submit evidence of the fact that they have obtained the licentiate's degree in law in order to apply with any effect for admission to the Bar. What is involved in the teaching given for the Certificat d'Aptitude in the institutes or centres of legal studies? It is in essence a practical professional education, based not only on classes, but above all on practical work and exercises concerning: The role of the advocate, the organisation of the profession and professional ethics; The various functions of the advocate: consultation, drafting and advocacy, as well as the procedures in use before the various courts, and the means of enforcement of judgments. This preparation is provided both by teachers of law and by judges and also by members of the Bar. Consequently, although the Certificat d'Aptitude is a university diploma in that the preparation for it is provided by bodies which are subordinate to the faculties, or as is said nowadays, legal teaching and research units, it is necessary to be clearly aware that advocates, as a profession, participate directly in that preparation, both in the classes, and even more as regards the practical exercises which frequently take place in advocates' chambers. As for the examination, it involves, first, written qualifying tests and, secondly, oral tests to decide which of the eligible candidates shall pass. The written tests cover both the candidates' general education and their technical legal knowledge regarding civil, commercial, penal or administrative procedure. The oral tests comprise questions on: the organisation of the courts and civil procedure; special penal law; means of enforcement of judgments; tax law and accountancy; and finally, the role of the advocate, the practice of the profession and professional ethics. *389 In addition, a 15-minute dissertation, which may take the form of a consultation or of a speech before a court on a practical case drawn by lot, as well as a discussion with the board of examiners, also 15 minutes in length,

enable the qualities of the candidate to be assessed in the light of the duties and requirements of the function of an advocate. The board of examiners is tripartite; its chairman is a teacher of law, and it is made up of teachers, judges and advocates in equal numbers. Such are the syllabus, the manner of preparation and the manner of examination of the Certificat d'Aptitude a la Profession d'Avocat, which make it the strictly technical and professional part of the education of candidates for entry into the profession. This is important both generally and particularly, in relation to the facts of this case. By obtaining the Certificat d'Aptitude, Mr. Thieffry has proved that, apart from a general legal knowledge equivalent to that which makes it possible to obtain a licentiate's degree in law in France, he possesses the specific knowledge required for admission to a French Bar. Let me turn now to the circumstances in which the appellant in the main action obtained recognition of the equivalence of his diploma of Doctor of Laws of the University of Louvain to the French licentiate's degree, and consider the effects which such an equivalence can have not only in French law and in the internal law of the member-States, but also in the field of Community law and for the purposes of the implementation of Article 52 of the Treaty of Rome. First of all, there can be no question that recognition of equivalence is solely within the jurisdiction of the university authorities, over whom the Conseils de l'Ordre have no control. When presented with an application for the recognition of equivalence of a foreign diploma, the university--in this case that of Paris 1 does--not confine itself to checking whether the diploma submitted appears on an equivalence list previously drawn up. It carefully examines the subjects studied, year by year, compares them with the syllabus of the French licentiate's degree and also checks the marks obtained by the person concerned in each of those subjects, with the purpose of drawing up what is referred to as a 'transcrit d'etudes' (transcript of studies). Thus the university carries out exhaustive and objective research into the equivalence, taking into account the level of knowledge acquired by the person concerned and having regard to the results achieved by him in examinations. This amounts to saying that the decision to recognise equivalence implies the certainty that the applicant must be regarded as offering guarantees concerning the level of his general legal knowledge equal to those which are required of the holder of a French licentiate's degree in law. *390 But then there arises the question, which is really the fundamental question in this case, of the effects of the decision to recognise equivalence. It is provided in the Decree of 15 February 1921, a rather old item of legislation which goes back to a time when no one could have anticipated the establishment of a European Community and the implementation within the Community of freedom of establishment, that: 'Section 1--For the purposes of the doctorate, recognition of equivalence to the degree of licentiate in law [as well as to the degree of licentiate in science or arts] may be granted, either by an individual measure [which is the case in this instance], or by virtue of decisions of principle.

First paragraph of Section 2--Individual applications for exemption shall be investigated by the Deans and submitted to the faculty to which the applicant states that he is presenting himself as a candidate for the doctorate, for its examination. Finally, under Section 6--A recognition of equivalence to the licentiate's degree in law cannot confer any right to the licentiate's diploma; it is valid only for the purpose of enrolling for a doctorate in the faculties of law'. It must therefore be acknowledged that on the basis of this piece of legislation, the effect in internal law of the concept of recognition of equivalence is a purely academic one. Such recognition is intended exclusively to enable the holder of the foreign diploma which has been recognised as equivalent to the licentiate's degree to pursue his legal studies in France up to the level of the doctorate. During the oral procedure, the representative of the Conseil de l'Ordre de Paris gave a clear exposition of the organisation of the French system regarding recognition of the equivalence of foreign legal diplomas. According to him, a distinction must be drawn between three situations: First, there is a system which results in acknowledging the automatic validityof diplomas awarded by certain French-speaking States in Africa, which are former French overseas territories, under bilateral agreements. The list of these diplomas is determined by ministerial orders. Automatic validity means that the equivalence thus recognised involves civil effects, that is to say that those diplomas themselves constitute legal evidence of qualifications for the purpose of entry into the profession of advocate. Secondly, there is automatic academic equivalence, governed by an order of 16 October 1924, which is still in force and which recognises the equivalence of diplomas awarded in 35 foreign countries, but only for the purpose of gaining a doctorate in law; thus the equivalence in question here is a university matter. Finally, the effect of a recognition of equivalence granted by means of an individual decision by the university, after verification of the knowledge acquired by the foreign candidate, is also a purely academic*391 one; it gives the applicant the legal opportunity of entering the next stage of higher studies in law, that is to say of preparing the French doctor's degree; only if he obtains the doctor's degree does he acquire valid legal evidence of qualification for admission to the Bar, always subject, however, to his obtaining the Certificat d'Aptitude a la Profession d'Advocat, and of course to the verification of his good character by the Conseil de l'Ordre. The author of the report on which the Conseil de l'Ordre de Paris acted stated that if Mr. Thieffry had followed that course, that is to say, if he had enrolled for the doctorate and had finally obtained the degree of Doctor of Laws, whilst having sat and passed the tests for the Certicat d'Aptitude a la Profession d'Avocat, as he did, the Conseil de l'Ordre would have raised no objection to his admission to the Bar. This line of argument is not without cogency. Moreover, it finds support in the legislation of many foreign countries, in which it is provided that the recognition of foreign diplomas has in principle only an academic or university effect, in that it confers a right only to the pursuit of higher legal studies, and not directly to entry

into those professions for which the possession of a national diploma is a legal condition. However, there is internal legislation in certain States under which the recognition of foreign diplomas involves a civil effect, frequently containing the proviso that foreign diplomas which have been recognised as equivalent are valid for entry into regulated professions only if they have been acquired by nationals. Thus the material factor is not so much the professional qualification of the holders of the diploma as their status as nationals of the country of establishment. As the Commission stated in its reply to one of the questions asked by the Court, the holders of certain French diplomas can work as assistant lecturers in German Arts faculties, while the French Government reciprocally allows holders of the German 'Staatsexamen ' to hold certain public teaching posts. Moreover, certain agreements concluded within the framework of the Franco-German conference of university vice-chancellors have allowed the recognition of automatic equivalence between, for example, the French 'Doctorat d'Etat'and the corresponding German professional qualification, as well as between the French diploma of 'Docteur Ingenieur' and its German counterpart; however, these agreements have not yet been approved by the governmental authorities of each of the two States. In Belgium, the Act of 19 March 1971, supplemented by a Royal Order of 20 July 1971, makes a sharp distinction between civil and academic effects, but at the same time deals with the entry of foreigners into certain regulated professions when such entry is subject to the production of national diplomas. *392 In that case, if the law degrees are recognised as equivalent by the competent authority, the right to practise a profession, entry to which is conditional upon possession of a diploma, is extended to foreign nationals, either under bilateral agreements, or on scientific or humanitarian grounds. However, that piece of legislation is not applicable as regards entry into certain professions such as that of advocate. In Italy, the consolidated legislation on higher education provides that university certificates acquired abroad have no legal validity inside the country, except as otherwise provided by special laws. Entry into the regulated professions remains subject to possession of a national diploma. In the Netherlands, under the university education system (Act of 22 December 1960) entitlement to the qualification of doctor or engineer obtained abroad is recognised, in so far as those qualifications appear on a list drawn up by the Minister of Education. Practice of the professions to which possession of those qualifications gives entry is free. There is at present between Belgium and the Netherlands mutual recognition, with civil effect, of certain diplomas in primary and secondary education. Finally, the Netherlands Higher Education Actauthorises, for the purposes of obtaining a Dutch diploma, partial or total exemption from examinations if the person concerned holds a foreign diploma which has been recognised as equivalent by the Minister of Education. That provision applies, inter alia, to the Belgian degree

of Doctor of Laws. As to the United Kingdom, the circumstances of the problem are very special there, since the distinction between the civil effect and the academic effect of a recognition of equivalence is in a way meaningless, at least as regards entry into the professions of barrister or solicitor. Indeed, education and the conditions for entry depend completely on the governing bodies of the professions themselves, so that the university diplomas of the continental member-States are in principle not recognised. That is one consequence of the fundamental difference between the teaching of common law and the teaching of continental private law. Certainly these various details demonstrate the existence in most member-States of a distinction between the civil effect and the academic effect of the recognition of equivalence of diplomas. Therefore, although it is clear that under the French Decree of 15 February 1921 the only effect of the recognition by the University of Paris 1 of the equivalence of the foreign diploma in question is to allow enrolment for the doctorate and is consequently purely academic, that restriction, which was formerly valid against any foreign candidate, and perhaps even against national candidates, has ceased to be compatible, in the present state of Community law, with the provisions of Articles 52 and 57 of the Treaty. *393 Indeed, Article 57 (1) provides for the mutual recognition of diplomas, by means of directives of the Council, for the purpose not of establishing freedom of entry into a profession--which follows from Article 52alone--but only of making such entry easier and thus of promoting the exercise of the right of establishment by the self-employed. The absence, in the present state of Community law, of any directive concerning freedom of establishment for advocates in the Community cannot have the consequence of frustrating the attainment of the right of establishment and by that fact alone of depriving the provisions of Article 52 of all practical effect, at least in cases where the competent authority in the country of establishment has the power to recognise a foreign diploma as being equivalent, even if strictly for university purposes, to a national diploma. In other words, before Article 52, as a provision having direct effect, entered into force, the legitimate concern of a member-State such as France to restrict entry to the profession of advocate only to candidates who possessed the diploma of the licentiate's degree in law could be justified, not by a condition pertaining to the nationality of those candidates, but by the intention of restricting membership of the Bar to persons with legal knowledge equivalent to that which is examined by the national universities and evidenced by the possession of the French diploma of the licentiate's degree in law. The legislation of each of the member-States contains provisions restricting the pursuit of certain professional activities by foreigners. The aim of those provisions may be the protection of public policy, but in many cases the true aim is the protection of the activities themselves. In addition to such provisions, there are in each member-State a number of laws or regulations--and even mere administrative practices--governing entry into certain occupations, in particular the professions, and the pursuit thereof.

In most cases, those rules apply without distinction to nationals and foreigners. They are designed to impose certain requirements concerning the professional ability of the person applying for admission. Therefore these are legal provisions which are not discriminatory in theory, but which can result in discrimination in practice, because it will in general be easier for a national than for a foreigner to satisfy the requirements imposed, such as, for example, the obtaining of a national diploma. In national provisions which relate to the taking up by foreigners of activities as self-employed persons, matters pertaining to guarantees of professional ability must therefore be carefully distinguished from those relating to restrictions, on grounds of public policy, peculiar to the status of foreigners. Before the entry into force of the rules of the Treaty of Rome*394 relating to freedom of movement for persons and the right of establishment, the situation of foreigners was dominated in each country by considerations of a political, economic or social nature and by motives of professional protectionism not necessarily related to requirements as to qualifications and university certificates. However, now that the system applying to nationals of member-States is very largely, if not exclusively, governed by the Community provisions with which the Court is well acquainted, it is necessary for restrictions applied to the right of establishment by the expedient of the recognition of professional qualifications corresponding to the award of national diplomas to be considered autonomously, to be examined in themselves. Whereas the comparison to be drawn is fairly simple when it concerns qualifications for access to scientific activities, the problem is more difficult in respect of the practice of the profession of advocate, since, despite the existence of general principles which are similar if not common from one State to another, the systems of legal education have particular features peculiar to each State or rather to each legal system, so that it is not easy for the national authorities of the country of establishment to resign themselves to allowing entry into the profession of advocate to nationals of other member-States who have not followed the syllabus taught in the national universities. Having said that, however, a distinction must also be drawn between legal knowledge of a general nature, the possession of which is guaranteed by the licentiate's degree in law, and the more specific and technical knowledge which future advocates acquire in France by preparing the Certificat d'Aptitude for the profession. Let me add that, although in theory an advocate undergoing his period of practical training and having only recently completed his studies at the faculty and the institute of legal studies can plead before any French court other than the Conseil d'Etat and the Cour de Cassation, he cannot be said to have acquired extensive professional experience, and will usually have to supplement his education and acquire that experience in the chambers of an experienced advocate or in group chambers. The same is true of nationals of other member-States, who have received recognition of the equivalence of their diploma which enables them to be regarded as having acquired general knowledge at least equal to that evidenced

by the licentiate's degree in law. Not only do they have, in addition, to prepare and pass the tests for the Certificat d'Aptitude a la Profession d'Avocat, but they also have to complete a three-year period of practical training before they can be inscribed on the roll as fully practising advocates. In most cases, they will work with an experienced advocate, or will enter a group, whether or not incorporated as a professional limited partnership, as mere assistants or, more rarely, as partners. The foregoing makes it clear that further practical training will*395 be essential to them in order to establish their own chambers after several years in practice, unless they prefer simply to remain full partners in the chambers of the group in which they made their debut. However, these factual considerations cannot take precedence over the principle of freedom of establishment, and even in the absence of any directive concerning the mutual recognition of diplomas for the purposes of entry into the profession of advocate, such entry cannot be refused to the nationals of member-States other than France when their national legal diploma has been legally recognised as being equivalent to the licentiate's degree in law. The question referred by the Cour d'Appel, Paris, must be answered exclusively by reference to the Community rules relating to the right of establishment and taking into account the repercussions of Article 52of the Treaty upon the national systems. Let me point out that under that provision, as regards activities as self-employed persons, the member-States must abolish all discrimination liable to prevent, impede, or even merely to hinder a national of another member-State desirous of establishing himself in its territory; it is immaterial whether this abolition is carried out upon a directive from the Council or proprio motu by the authorities of the country of establishment. Article 52 imposes upon them an obligation to attain a result. Although it is difficult to list exhaustively all the possible types of discrimination and even more so to define them, especially if they are disguised and hidden under the cover of a degree of professional protectionism, Articles 52 and 54 of the Treaty as well as the General Programme on the right of establishment provide a key to interpretation which enables those prohibited restrictions or discrimination to be identified. Indeed, the second paragraph of Article 52 provides that freedom of establishment shall include the right to take up and pursue activities as self-employed persons; Article 54 (3) (c) defines the content of the General Programme on the right of establishment by stating in particular that that measure should abolish: 'those administrative procedures and practices, whether resulting from national legislation or from agreements previously concluded between member-States, the maintenance of which would form an obstacle to freedom of establishment' . The General Programme itself refers in particular to: 'Any measure which, pursuant to any provision laid down by law, regulation or administrative action in a member-State, or as the result of the application of such a provision, or of administrative practices, prohibits or hinders nationals of other member-States in

their pursuit of an activity as a self-employed person by treating*396 nationals of other member-States differently from nationals of the country concerned' (General Programme, Title III (A)). These ideas refer both to direct restrictions and to disguised discrimination, that is, which results from a provision which is theoretically applicable to nationals and foreigners alike, but which in practice constitutes an obstacle mainly for foreigners. In my opinion, it is clear in the light of these provisions that the requirement of the national diploma of a licentiate's degree in law, imposed by Section 11 (2) of the Act of 31 December 1971 on the reform of the legal professions, in fact constitutes an indirect and disguised but quite definite restriction with regard to nationals of other member-States desirous of entering the profession of advocate in France. In fact it is a question here of the nationality of the diploma, no longer that of the person, constituting an obstacle to the effective exercise of the right of establishment. According to the current case law of this Court, freedom of establishment is a fundamental right, enforceable by all the nationals of the member-States; any limitation upon the effective exercise of that right can only be interpreted strictly; the attainment of freedom of establishment is in no way subject to the adoption of the directives provided for in Article 57, particularly in Article 57 (1), which refers to the mutual recognition of diplomas. The role of those directives is merely secondary and subsidiary; they are intended only, as the Court has held, to facilitate the effective exercise of the right of establishment, and failure or delay on the part of the Council in adopting them cannot paralyse the implementation of Article 52. What, then, is in question in the present case? The effect (which, according to the Conseil de l'Ordre and the French Government, is a purely academic one) of the recognition that the diploma of Doctor of Laws of the University of Louvain is equivalent to the French licentiate's degree in law. That line of argument, which would have been admissible before 1970, does not take account of the real innovation brought about by the entry into force of Article 52 of the Treaty as a directly applicable provision. Although it is not for this Court to interpret national law, at least it does not hesitate to appraise the effects thereof in regard to the Treaty, and, if necessary, to rule that they are incompatible with the Community rules in force. What is the purpose of section 11 (2) of the Act of 31 December 1971? That provision is intended to ensure that any candidate for membership of a French Bar has acquired a level of general legal knowledge corresponding to the level of the licentiate's degree in law. It is not a question of anything else. Consequently, is that requirement not satisfied when, after a comparative examination and a scrupulous check of the legal subjects taught and the level of knowledge reached, the competent*397 authority--that is, the university--by an individual decision recognises a foreign diploma as equivalent to the French licentiate's degree, especially when, as in the present case, the foreign diploma was awarded in a country having a legal system fairly similar to the French one? What is more, the possession of a licentiate's degree in law is not the only

condition for membership of the Bar. It is also necessary to have sat a professional examination, which is the necessary complement to the diploma of general legal knowledge representated by the licentiate's degree. Not only did the university authority allow Mr. Thieffry to study for the Certificat d'Aptitude a la Profession d'Avocat, but he obtained the said Certificat. In these circumstances, the requirement of the French licentiate's degree in law becomes a pure formality; it is deprived of any objective justification since, on the one hand, the appellant in the main action possesses, without any doubt, general legal knowledge comparable to that obtained through the studies for a licentiate's degree in law, and on the other hand, he has given proof that he has the specific technical knowledge which is evidenced by the award of the Certificat d'Aptitude a la Profession d'Avocat. Let me add that the General Programme provides that 'Pending [the] mutual recognition of diplomas, or [the] co-ordination [of the national provisions concerning the taking up and pursuit of activities as self-employed persons], and in order to facilitate the taking up and pursuit of activities as self-employed persons and to avoid distortions, a transitional system may be applied; such system may where appropriate include provision for the production of a certificate establishing that the activity in question was actually and lawfully carried on in the country of origin'. The duration and details of this transitional system were to have been settled when the directives provided for by Article 57 were drawn up. As those directives have not yet been issued--at least as regards the profession of advocate--the way in which account is to be taken of the exercise of the activity of advocate in the country of origin have also not been settled. But the fact that Mr. Thieffry was actually an advocate at the Brussels Bar for more than 10 years and the fact that thereafter he collaborated with a Parisian advocate well known to the Conseil de l'Ordre, should have been taken into consideration by that body. Thus Mr. Thieffry, whose good character is not in issue here, satisfies the requirement regarding professional qualifications laid down for entry into the profession of advocate as it is organised in France. The solution at which I arrive in this way cannot automatically be transported to other member-States. Indeed, it depends to a great extent upon the precise conditions laid down by national legislation for the training of advocates; and I understand very well the import*398 of the observations submitted by the Government of the United Kingdom, in which country, as I have said before, the training of advocates and the conditions of entry into the profession are regulated by the governing bodies of the professions themselves quite independently, although no condition as to the nationality of candidates is imposed. However, to confine myself to the French system, an objection has been raised against the liberal solution which I suggest, both by the Conseil de l'Ordre de Paris and by the Procureur General at the Cour d'Appel in his conclusions. It was argued that in reality the right of establishment consists in the application to nationals of other member-States of equal treatment with nationals of the State concerned, and it was contended, on the basis of a strict interpretation of that principle of equality of treatment, that in this instance a French national who was

the holder of a foreign diploma recognised as equivalent to the licentiate's degree in law, in circumstances identical to those applying to Mr. Thieffry, himself could not be admitted to a French Bar because he only possessed a foreign diploma; and that consequently, there is a kind of reverse discrimination, since the French national would in this way be more harshly treated than a national of another member-State. In support of this line of argument, reliance is placed upon a judgment given by the Cour d'Appel de Paris, on 30 October 1974 in the case of a certain Vaccaro. The main contention of the person concerned, an Italian by origin but French by naturalisation, was that the diploma of 'Laurea di Dottore in Giurisprudenza' awarded to him by the University of Ferrara in 1940 should be recognised as equivalent to the French diploma in law; he added that since Articles 52 and 57 of the Treaty of Rome had provided for freedom of establishment for nationals of one member-State of the Community in the territory of another member-State and had laid down the principle of mutual recognition of diplomas, the fact that he was not a licentiate in French law could not be relied upon against him when he gave proof of an Italian diploma equivalent and even superior to the French licentiate's degree. The Cour d'Appel recognised the existence, under the Ministerial Order of 24 July 1922, of the equivalence sought, but it dismissed the provisions of the Treaty of Rome as being in its opinion inapplicable with regard to a Frenchman establishing himself in France. This judgment appears aberrant to me. It completely misunderstands the objectives of the Treaty, in particular that of Article 52thereof which makes freedom of establishment one of the fundamental principles of the Common Market. To refuse a French national--even a naturalised one--the right to establish himself in the country of which he has become a citizen appears to me to*399 be a blatant infringement of Article 52, the aim of which is to enable each national of every member-State to practise his profession in any State of the Community and above all in the State of which he has acquired the nationality. This line of reasoning is certainly correct as regards the taking up and pursuit of activities as self-employed persons. Moreover, it applies a fortiori to the pursuit of activities as employed persons on the basis of Article 48of the Treaty. It is inconceivable that a French worker--even if he were originally a foreigner--should be forbidden to pursue, for example, the trade of a welder on the ground that he did not have the qualifying certificate for that particular trade, but only had equivalent vocational training which he had received abroad. With all the respect due to such an important court, I have no hesitation in saying that in the Vaccarocase the Cour d'Appel de Paris, came to a decision which was legally mistaken, at least as regards the ground of judgment to which I have just alluded. Moreover, in the cases, still rare as yet, in which the Council, by way of directive, has applied Article 57 (1), it has accepted the principle of the objective nature of the mutual recognition of diplomas without any consideration based on the nationality of the persons who hold them. Thus, Article 2 of Directive 75/362, concerning the medical profession, imposes

recognition in all the member-States in which the diplomas were awarded, without making any distinction based on the nationality of the holders of the diplomas. The Council also added a particularly explicit statement to this directive: ' The Council confirms that it is to be understood that freedom of establishment particularly for the holders of certificates obtained in other member-States must be accorded on the same terms to nationals of other member-States and to nationals of the member-State concerned, as is the case with other directives.'. This clarification, which is of an interpretative nature, confirms the analysis which I have made of the legal situation in the present case. However, I wish to point out, as the Commission has done, that even if one accepts the argument which was upheld in the judgment in the Vaccaro case, to the effect that it is impossible for a national of a member-State to avail himself of Article 52 of the Treaty within the said State, the objection raised by the Conseil de l'Ordre de Paris should none the less be rejected. Let me point out, indeed, that discrimination in connection with the right of establishment does not only consist of direct and overt restrictions imposed by reason of the nationality of the persons seeking to avail themselves thereof, but can also consist of disguised discrimination based for example on residence, as this Court*400 acknowledged in the judgment of 12 February 1974 in Sotgiu v. Deutsche Bundespost (152/73). [FN6] FN6 [1974] E.C.R. 153. Even if a legislative provision, such as that laid down by section 11 (2) of the Act of 31 December 1971, theoretically applies regardless of nationality, it is sufficient that it should constitute an obstacle to freedom of establishment which mainly or exclusively operates against the adoption and pursuit by foreigners of a particular profession. This consideration is further confirmed by the General Programme of 18 December 1961 on the implementation of the right of establishment. Such is indeed true of the legislative provision upon which the Conseil de l'Ordre de Paris is relying against Mr. Thieffry. If one considers the facts, it is clear that in a country such as France--contrary, for example, to what happens in the Grand Duchy of Luxembourg--the number of French citizens holding a legal diploma obtained in another member-State can be regarded as minimal in relation to the number of foreign Community nationals who have acquired a law diploma awarded by a university in their country of origin. Thus, the requirement imposed upon the latter of possessing the French licentiate's degree in law is a discriminatory condition, which constitutes an obstacle to the attainment of the objectives of the Community rules in question, and principally of Article 52of the Treaty, since that discrimination involves hardship for them if not exclusively at least mainly. I trust that in the interpretation which this Court supplies to the Cour d'Appel de Paris, it will not go further than what is required to resolve the particular dispute in which Mr. Thieffry is involved. The Court should refrain from giving a judgment

of principle such as to constitute a precedent having general scope, going so far as to deprive the directives provided for by Article 57 (1) or (2) of all purpose, in respect of all activities as self-employed persons and in all the member-States. The right of establishment is by nature a subjective, individual right, and the court making the reference is under an obligation to consider the particular situation which is submitted to it. In the present case, it cannot exclude the particular circumstances of Mr. Thieffry's situation. But precisely, all the facts in the file on the case on the basis of which the Cour d'Appel de Paris, must give its decision tend to confirm that the recognition of equivalence obtained by the appellant in the main action guarantees that the level of the general legal knowledge which he gives proof of having acquired in Belgium is amply sufficient to justify its recognition as being objectively equivalent to that which the diploma of licentiate in law makes it possible to acquire in France. Furthermore, by his possession of the Certificat d'Aptitude a la Profession d'Avocat, an exclusively French professional diploma,*401 awarded by the Institut d'Etudes Judiciaires of the University of Paris 2, in accordance with the conditions laid down by the Decree of 31 July 1972, the appellant fulfils the supplementary but indispensable condition for his admission to the Bar, as provided by section 11 (3) of the Act of 31 December 1971. To sum up, since the candidate fulfils all the conditions for entry into the profession of advocate (as regards the Certificat d'Aptitude he does so directly, and in relation to possession of the diploma of the licentiate's degree in law he does so by way of recognition of an equivalent qualification) and since his Belgian nationality cannot be held against him by virtue of the decision in the Reyners case, I am firmly convinced that the purely formal requirement of the French licentiate's degree in law awarded by a university in the country establishment constitutes an obstacle to his membership of the Bar and to the attainment of the objective of the Community provisions upon which he bases his appeal. It is therefore my opinion that the Court should rule that: When a national of one member-State desirous of establishing himself as an advocate in another member-State of the Community is the holder of a legal diploma awarded by a competent authority in his State of origin, which has been recognised as equivalent by the competent authority in the country of establishment, the act of demanding a national diploma required by the legislation of the country of establishment constitutes, even in the absence of the directives provided for in Article 57 (1) and (2), a disguised restriction upon the right of establishment created by Article 52 and is consequently a demand which goes beyond what is objectively necessary for the attainment of the objective of the above-mentioned Community rules. JUDGMENT [1] By order of 13 July 1976, lodged at the Court Registry on 19 July 1976, the Cour d'Appel de Paris, put to the Court, under Article 177 of the EEC Treaty, a

question concerning the interpretation of Article 57 of the Treaty, which relates to the mutual recognition of evidence of professional qualifications for the purposes of access to activities as self-employed persons, with regard in particular to admission to exercise the profession of advocate. [2] The case before the Cour d'Appel concerns the admission to the Ordre des Avocats aupres de la Cour de Paris (the Paris Bar) of a Belgian advocate, who is the holder of a Belgian diploma of Doctor of Laws which has been recognised by a French university as equivalent to the French licenciate's degree in law, and who subsequently obtained the 'Certificat d'Aptitude a la Profession d'Avocat' (qualifying certificate for the profession of advocate), having sat and passed that examination, in accordance with French legislation. [3] The appellant in the main action applied for admission to the Paris Bar, but by an order of 9 March 1976 the Conseil de l'Ordre (Bar Council) rejected his application on the ground that*402 the person concerned 'offers no French diploma evidencing a licentiate's degree or a doctor's degree'. [4] It appears from the wording of that decision that the application for admission was refused solely by reason of the fact that, although the person concerned had obtained university recognition of the equivalence of his basic diploma and furthermore had acquired the Certificat d'Aptitude a la Profession d'Avocat, that was not enough for him to be treated in the same way as a holder of the diploma of the licentiate's degree or doctor's degree within the meaning of French legislation. [5] According to the Conseil de l'Ordre, although the effect of the Treaty is to abolish any discrimination on grounds of nationality in this field, the equivalence of diplomas does not follow automatically from the application of its provisions, since such equivalence can result only from directives concerning recognition adopted pursuant to Article 57 of the Treaty, which do not yet exist for the profession of advocate. [6] The person concerned appealed to the Cour d'Appel against the order of the Conseil de l'Ordre, and the Cour d'Appel put to the Court a question in the following terms: '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 examinations--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 Treaty of Rome, an obstacle to the attainment of the objective of the Community provisions in question?' [7] Under Article 3 of the Treaty, the activities of the Community include, inter alia, the abolition of obstacles to freedom of movement for persons and services. [8] With a view to attaining this objective, the first paragraph of Article 52 provides that restrictions on the freedom of establishment of nationals of a member-State in the territory of another member-State shall be abolished by progressive stages in the course of the transitional period. [9] Under the second paragraph of the same Article, freedom of establishment includes the right to take up activities as self-employed persons, under the conditions laid down for its

own nationals by the law of the country where such establishment is effected. [10] Article 53 emphasises the irreversible nature of the liberalisation achieved in this regard at any given time, by providing that member-States shall not introduce any new restrictions on the right of establishment in their territories of nationals of other member-States. [11] With a view to making it easier for persons to take up and pursue activities as self-employed persons, Article 57assigns to the Council the duty of issuing directives concerning, first, the mutual recognition of diplomas, and secondly, the coordination*403 of the provisions laid down by law or administrative action in member-States concerning the taking up and pursuit of activities as self-employed persons. [12] That Article is therefore directed towards reconciling freedom of establishment with the application of national professional rules justified by the general good, in particular rules relating to organisation, qualifications, professional ethics, supervision and liability, provided that such application is effected without discrimination. [13] In the General Programme for the abolition of restrictions on freedom of establishment, adopted on 18 December 1961 pursuant to Article 54 of the Treaty, the Council proposed to eliminate not only overt discrimination, but also any form of disguised discrimination, by designating in Title III (B) as restrictions which are to be eliminated, ' Any requirements imposed, pursuant to any provision laid down by law, regulation or administrative action or in consequence of any administrative practice, in respect of the taking up or pursuit of an activity as a self-employed person where, although applicable irrespective of nationality, their effect is exclusively or principally to hinder the taking up or pursuit of such activity by foreign nationals.' [FN7][14] In the context of the abolition of restrictions on freedom of establishment, that programme provides useful guidance for the implementation of the relevant provisions of the Treaty. FN7 O.J. Spec. Ed. (2nd series), IX 8. [15] It follows from the provisions cited taken as a whole that freedom of establishment, subject to observance of professional rules justified by the general good, is one of the objectives of the Treaty. [16] In so far as Community law makes no special provision, these objectives may be attained by measures enacted by the member-States, which under Article 5 of the Treaty are bound to take 'all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community', and to abstain 'from any measure which could jeopardise the attainment of the objectives of this Treaty'. [17] Consequently, if the freedom of establishment provided for by Article 52 can be ensured in a member-State either under the provisions of the laws and regulations in force, or by virtue of the practices of the public service or of professional bodies, a person subject to Community law cannot be denied the practical benefit of that freedom solely by virtue of the fact that, for a particular profession, the directives provided for by Article 57of the Treaty have not yet been adopted. [18] Since the practical enjoyment of freedom of establishment can thus in certain circumstances depend upon national practice or legislation, it is incumbent upon the competent public

authorities--including legally recognised professional bodies--to ensure that such practice or legislation is applied in accordance with the objective defined by the provisions of the Treaty relating to freedom*404 of establishment. [19] In particular, there is an unjustified restriction on that freedom where, in a member-State, admission to a particular profession is refused to a person covered by the Treaty who holds a diploma which has been recognised as an equivalent qualification by the competent authority of the country of establishment and who furthermore has fulfilled the specific conditions regarding professional training in force in that country, solely by reason of the fact that the person concerned does not possess the national diploma corresponding to the diploma which he holds and which has been recognised as an equivalent qualification. [20] The national court specifically referred to the effect of a recognition of equivalence 'by the university authority of the country of establishment' , and in the course of the proceedings the question has been raised whether a distinction should be drawn, as regards the equivalence of diplomas, between university recognition, granted with a view to permitting the pursuit of certain studies, and a recognition having 'civil effect', granted with a view to permitting the pursuit of a professional activity. [21] It emerges from the information supplied in this connection by the Commission and the governments which took part in the proceedings that the distinction between the academic effect and the civil effect of the recognition of foreign diplomas is acknowledged, in various forms, in the legislation and practice of several member-States. [22] Since this distinction falls within the ambit of the national law of the different States, it is for the national authorities to assess the consequences thereof, taking account, however, of the objectives of Community law. [23] In this connection it is important that, in each member-State, the recognition of evidence of a professional qualification for the purposes of establishment may be accepted to the full extent compatible with the observance of the professional requirements mentioned above. [24] Consequently, it is for the competent national authorities, taking account of the requirements of Community law set out above, to make such assessments of the facts as will enable them to judge whether a recognition granted by a university authority can, in addition to its academic effect, constitute valid evidence of a professional qualification. [25] The fact that a national legislation provides for recognition of equivalence only for university purposes does not of itself justify the refusal to recognise such equivalence as evidence of a professional qualification. [26] This is particularly so when a diploma recognised for university purposes is supplemented by a professional qualifying certificate obtained according to the legislation of the country of establishment. [27] In these circumstances, the answer to the question referred to the Court should be 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*405 his country of origin which has been recognised 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. Costs [28] The costs incurred by the Government of the French Republic, the Government of the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. [29] As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Cour d'Appel, Paris, the decision on costs is a matter for that court. Order On those grounds, THE COURT, in answer to the question referred to it by the Cour d'Appel, Paris, by a judgment delivered in chambers on 13 July 1976, HEREBY RULES: 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 recognised 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.

(c) Sweet & Maxwell Limited [1977] 2 C.M.L.R. 373 END OF DOCUMENT