3 Colum. J. Eur. L. 145 (1996)
Elke Ballon. Assistant, Institute for European and Economic Law, Katholieke Universiteit Leuven, Advocate.
Directive 77/249/EEC; Freedom to Provide Services; Lawyers; Possibility of Opening Chambers; Articles 52 and 59 of the Treaty
- Facts and Procedure
Reinhard Gebhard, a German national, obtained a law degree at the University of Tiibingen in Germany. He is authorized to practice as a Rechtsanwalt in Germany and was admitted to the Stuttgart Bar in 1977. Although he does not have chambers of his own in Germany, he works as an “independent collaborator” in a set of chambers there. Since 1978, he has resided in Italy (Milan), where he has worked, initially as a collaborator, later as an associate member of a set of chambers of lawyers practicing in association in Milan. On July 30, 1989, Gebhard opened his own chambers in Milan where Italian avvocati and procuratori work in collaboration with him. In September 1991, disciplinary proceedings were initiated against Gebhard on the ground that he had practiced his profession in Italy on a permanent basis whilst using the title avvocato, thereby violating Italian Law No. 31/1982 on the provision of lawyers services. Article 2 of Law No. 31/82 provides that nationals of Member
States authorized to practice as lawyers in the Member State from which they com shall be permitted to pursue lawyers’ professional activities on a temporary basis in contentious and non-contentious matters in accordance with the detailed rules laid down in this title. For the purpose of the pursuit of the professional activities referred to in the preceding paragraph, the establishment on the territory of the Republic either of chambers or branch office is not permitted. (emphasis added)
On October 14, 1991, Gebhard applied to the Milan Bar Council to be entered on the roll of members of the Bar. His application was based on Council Directive 89/48/EEC of December 21, 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration’ and of his having completed a ten- year training period in Italy. On December 30, 1992, the Milan Bar Council took a decision, by which they imposed on Gebhard the sanction of suspension from pursuing his professional activity for six months. The Milan Bar Council did not take a formal decision on Gebhard’s application to be entered on the roll of the Milan Bar. Gebhard appealed this decision to the Consiglio Nazionale Forense (National Bar Council). His appeal was directed not only against the sanction that was imposed on him but also against the implied rejection of the Milan Bar Council to be entered on the roll.
Before the National Bar Council, Gebhard argued that he was entitled to pursue his professional activity from his own chambers in Milan, referring to Council Directive 77/249/EEC of March 22, 1977 to facilitate the effective exercise by lawyers of freedom to provide services, implemented in Italy by Law No. 31/82, the same law as Gebhard was alleged to have infringed. Directive 77/249/EEC draws a distinction between (a) activities relating to the representation of a client in legal proceedings or before public authorities and (b) all other activities. Article 4(1) of the Directive provides that “[a]ctivities relating to the representation of a client in legal proceedings or before public authorities shall be pursued in each host Member State under the conditions laid down for lawyers established in that State with the exception of any conditions requiring residence, or registration with a professional organization, in that State.” The National Bar Council stayed the disciplinary proceedings and referred to the Court two questions on the interpretation of Directive 77/249/ EEC, namely whether the Italian law which prohibits lawyers established in another Member State who provide services in the territory of the Italian Republic from opening chambers or a principal or branch office in Italy is compatible with the Directive, and as to what criteria have to be applied in assessing whether activities are of a temporary nature.
