Dr Julian Lonbay, Senior Lecturer,
Postgraduate Research Admissions Tutor, Birmingham Law School, University
of Birmingham
Introduction
A recent Court of Justice judgment in the Joined Cases C-58/13 and C-59/13 Angelo Alberto Torresi and Pierfrancesco Torresi v Consiglio dell’Ordine degli Avvocati di Macerata considered whether EU law permits citizens to pursue the fastest route to professional qualification, even if it bypasses significant portions of training mandated by national law for entry into the corresponding national profession.
Background: Lawyer Mobility Rights under Directive 98/5/EC
Across Europe, including Italy, lawyer rolls feature specialized sections for individuals from other European Economic Area (EEA) states seeking establishment under their “home State professional title.” This stems from implementing Directive 98/5/EC, designed to facilitate the permanent practice of law in a Member State different from where the lawyer obtained their qualifications. This directive mandates that host state authorities automatically recognize and register the professional titles of lawyers whose professions are listed in Article 1(2). Once registered, Article 5 grants these lawyers the right to practice in the host country.
Interestingly, in Italy, 92% of registered European lawyers are Italian nationals. The Consiglio nazionale forense (Italian National Bar Council) revealed almost 3,500 registered European lawyers were Italian nationals who obtained qualifications elsewhere in the EEA, with 83% acquiring their abogado title in Spain.
The via spagnola
Until recently, Spain did not mandate post-university training to become an abogado. A Spanish law degree, or its equivalent, was sufficient for registration as an abogado with one of the eighty-three Spanish Bars. [Currently, Spain has implemented a mandatory training period and a State exam, first held in 2014.]
Many Italians holding a laurea in giurisprudenza (Italian law degree) discovered that Spanish authorities frequently recognized their degrees as equivalent to Spanish law degrees, allowing relatively automatic homologation. Upon obtaining Spanish-recognized diplomas, these individuals registered as lawyers in Spain and subsequently returned to Italy. Under Directive 98/5/EC, they were entitled to practice as Spanish lawyers, including handling matters of Italian law (subject to certain ethical and regulatory restrictions). This approach circumvented the minimum two-year requirement in Italy of legal practice and a State exam for practicing as an avvocato (Italian lawyer).
An abuse of EU law?
Italian Bars raised concerns about this practice, deeming it an abuse of European Law and even suggesting a threat to Italian national identity, which Article 4(2) TEU should protect.
The Torresi cases provided an opportunity to examine this interpretation under EU law. The two Torresis, having qualified as abogados in Spain, applied for inscription on the special roll for registered European lawyers at the Macerata Bar (Italy). When the Bar Council of Macerata failed to decide within the one-month legal timeframe, the Torresis appealed to the Consiglio nazionale forense (CNF) to intervene. The CNF questioned the applicability of Article 3 of the Directive in such situations, suspecting potential “abuse of law” and a violation of Article 4(2) TEU
“in that it permits circumvention of the rules of a Member State which make access to the legal profession conditional on passing a State examination, given that the Constitution of that Member State makes provision for such an examination and that the examination forms part of the fundamental principles of protecting consumers of legal services and the proper administration of justice?”
The Italian CNF referred two questions to the CJEU. Preliminary issues regarding jurisdiction and capacity dominated Advocate General Wahl’s Opinion (§§19-83) and over half of the Grand Chamber’s judgment. The core legal issues revolved around aspects of free movement for lawyers under Directive 98/5/EC, discussed below.
The CJEU was tasked with addressing the following questions:
“1. In the light of the general principle which prohibits any abuse of rights and Article 4(2) TEU, relating to respect for national identities, is Article 3 of [Directive 98/5] to be interpreted as obliging national administrative authorities to register, in the register of lawyers qualified abroad, Italian nationals who have conducted themselves in a manner which abuses EU law, and as precluding a national practice which allows such authorities to reject applications for registration in the register of lawyers qualified abroad where there are objective circumstances to indicate that there has been an abuse of EU law, without prejudice to respect for the principles of proportionality and non-discrimination and to the right of the person concerned to institute legal proceedings in order to argue a possible infringement of the right of establishment and, consequently, the possibility of judicial review of the administrative action in question?
2. If the first question should be answered in the negative, is Article 3 of [Directive 98/5], thus interpreted, to be regarded as invalid in the light of Article 4(2) TEU, in that it permits circumvention of the rules of a Member State which make access to the legal profession conditional on passing a State examination, given that the Constitution of that Member State makes provision for such an examination and that the examination forms part of the fundamental principles of protecting consumers of legal services and the proper administration of justice?”
Did the Italian via spagnola practices constitute an abuse of EU law?
Advocate General Wahl
Advocate General Wahl acknowledged “abuse of law” as an established concept in EU law, preventing citizens from fraudulently or abusively relying on it. This concept comprises objective and subjective elements for national courts to assess, without undermining EU law. Objectively, EU law should not produce unfavorable outcomes, while subjectively, there should be no manipulation or artificial fulfillment of EU law conditions to gain an unfair advantage.
In this case, the Advocate General argued that the practice demonstrated the proper functioning of EU law in achieving its intended goals. Directive 98/5/EC lacked provisions suggesting the EU legislature intended to allow Member States to discriminate against their own nationals. EU citizens were entitled to seek qualification in the most advantageous jurisdiction, aligning with the rationale behind “harmonizing” preconditions for exercising rights under Directive 98/5/EC.
Fraud
In the rare case of legitimate fraud concerns, investigations could be justified. Article 13 of the Directive, which encourages close collaboration between relevant Member State authorities, should be utilized in such instances.
Italian national Identity (Article 4(2) TEU)
The Advocate General expressed confusion over the perceived threat to Italian national identity. How could an Italian utilizing EU law to qualify as a Spanish lawyer and subsequently practice in Italy jeopardize Italy’s legal framework and national identity? The Italian Government did not support the CNF’s stance during the hearing. The Torresis sought access to the Italian legal market as abogados, not entry into the Italian legal profession itself. Intervening parties, including the Parliament, Council, and Spanish and Polish Governments, acknowledged Italy’s right to regulate access to the avvocato profession. Denying an abogado the right to practice in Italy seemed to contradict the essence of Directive 98/5/EC, as Spain had the authority to determine abogado qualifications.
Grand Chamber of the CJEU
The CJEU convened as a Grand Chamber to address the case. After resolving preliminary jurisdictional matters, they turned to substantive legal questions. The court highlighted their prior interpretation of Directive 98/5/EC as a framework for the “mutual recognition of professional titles of migrant lawyers.”
§38
In that context, Article 3 of Directive 98/5 undertakes a complete harmonisation of the preliminary conditions required for the exercise of the right of establishment conferred by that directive, providing that a lawyer who wishes to practise in a Member State other than that in which he obtained his professional qualification is obliged to register with the competent authority in that Member State, which must effect that registration ‘upon presentation of a certificate attesting to his registration with the competent authority of the home Member State’ …
The sole prerequisite for host state registration was presenting the migrant lawyer’s home state certificate. The CNF claimed this constituted abuse of law as it bypassed Italian training requirements.
Abuse of Law
The Court affirmed “abuse of law” as a recognized concept in EU law, empowering Member States to take measures against nationals improperly circumventing national laws. Echoing Advocate General Wahl, they highlighted the objective and subjective dimensions of this concept. The objective condition for abuse of law is met if, despite formally meeting EU law conditions, the law’s objectives are not achieved. The subjective element necessitates an intention to improperly benefit from EU law by “artificially” fulfilling stipulated conditions.
Applying this to the Torresi cases, they stated:
§48
… it must be held that the right of nationals of a Member State to choose, on the one hand, the Member State in which they wish to acquire their professional qualifications and, on the other, the Member State in which they intend to practise their profession is inherent in the exercise, in a single market, of the fundamental freedoms guaranteed by the Treaties …
The Court determined it could not be an abuse of law, as EU law intended to provide the opportunity for EU citizens with degrees to acquire qualifications elsewhere and return. This fulfilled the objective element of the abuse of law test. EU law intended the result being challenged. Availing oneself of more “favorable” legislation did not meet the subjective element of the test.
Italian national Identity (Article 4(2) TEU)
The Court confirmed the requirement for EU law to “respect the national identity of Member States” (Article 4(2) TEU). The Italian CNF claimed Article 3 of Directive 98/5/EC allowed circumvention of Article 33(5) of the Italian Constitution, letting Italians bypass the national Bar exam, thereby circumventing rules integral to Italian national identity. Aligning with the Advocate General, the Court determined that Article 3 of the Directive granted access to the Italian legal market, not the Italian avvocato (lawyer) profession, thus no national rules were being evaded. They also acknowledged the Italian Government’s acceptance of this interpretation during the hearing.
Commentary
This Court ruling supports the view that EU law allows for regulatory competition. The national regulatory frameworks for legal services within Member States form a market. Citizens and businesses can choose their preferred regime. This allows aspiring lawyers to potentially omit aspects of training required had they stayed in their home country. This choice does not constitute abuse; it aligns with the designed purpose of EU law. Understandably, states no longer hold complete sovereignty within their territories. The single market concept inherently promotes the fading of borders.
In this instance, EU law, as determined by the Member States, has established that individuals admitted to recognized legal professions listed in Article 1(2) of Directive 98/5/EC have the right to establish themselves in other Member States, as outlined in Directive 98/5/EC, under their home State professional titles. Exercising this right cannot be considered an abuse of law, as the rule was intended to facilitate this mobility.
Member States are not obligated to have identical requirements for accessing the legal profession. The content of legal education largely falls under the purview of individual Member States. Similarly, the scope and depth of reserved legal activities differ across the EEA. Some States permit non-lawyers to practice in areas restricted to specific legal professions in others. This acknowledges the variation in legal practice access across professions and countries within the EEA, leading to complications when lawyers cross borders, given the differences in training and scope of practice. Legal service consumers benefit from a wider selection of expertise. However, it presents challenges for regulators who must collaborate with professional regulatory bodies from other Member States. This requires understanding the legal regimes of other countries, coordinating on disciplinary matters, and engaging in consultations when complexities or misunderstandings arise as migrant lawyers seek entry into a host State’s legal market. This interaction encourages pan-European engrenage (intermeshing) on various levels.
In the Torresi case, the Consiglio nazionale forense did not raise the issue of Article 10 of the Directive, which allows migrant lawyers practicing under their home State title for three years to convert to avvocato status. These lawyers must demonstrate:
“effectively and regularly pursued for a period of at least three years an activity in the host Member State in the law of that State including Community law.”
Such lawyers are exempt from aptitude tests or adaptation periods. This paves the way for Italians who have taken the via spagnola to be integrated into the Italian legal profession after a few years. This point was likely not raised in the Court of Justice because prior case law indicated such access did not violate the principle of non-discrimination.
In Luxembourg v Parliament and Council, Luxembourg challenged Article 10, arguing that it permitted migrant EEA lawyers to practice national law without undergoing any national law training required for Luxembourg lawyers. They questioned whether this disadvantaged Luxembourg lawyers and if Luxembourg could protect its legal service consumers from these “untrained” migrant lawyers. The Court determined that EU legislation provided adequate safeguards for consumers, and national and migrant lawyers were not in comparable situations, thereby not constituting discrimination. Migrant lawyers operated under various restrictions imposed by the Directive itself. Therefore, no “unequal treatment” issue existed that EU law could penalize.
The Torresi court reaffirmed the primacy of the Single Market, designed to benefit European citizens and businesses rather than simplify the work of national regulators of economic activity. Aspiring European lawyers can exercise freedom in their training choices and post-qualification practice locations. This liberalization fosters “ever closer” Union for service providers, consumers, and legal service regulators.
Barnard & Peers: chapter 14