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The general rule of mutual recognition applied to lawyers

Ljupcho Grozdanovski , 16 février 2011

The Ebert case (C-359/09) from February 3, 2011, is clearly in line with cases such as Klopp (107/83) or Gebhard (C-55/94). However, unlike the latter, the importance of the stated case resides in the way in which the general rule of mutual recognition applies to the free movement of lawyers.

Mr. Ebert, a German national, is a member of the Düsseldorf Bar Association and is a licensed lawyer under German law since 1997. In 2002, he acquired the title of Doctor in Law in Hungary, where he currently resides. After having worked as a European Lawyer in a Hungarian Law firm, he decided to pursue an independent practice. However, his request for admission to the legal profession was denied as he was not a member of the Hungarian Bar Association. Mr. Ebert then appealed the decision of refusal before the Court of Budapest, which decided to stay the proceedings and address two questions for preliminary ruling to the European Court of Justice.

Firstly, the Court of Budapest demands if directives 89/48 and 98/5 are to be interpreted as allowing that a licensed lawyer under German Law act as such in Hungary, despite the requirement laid down by Hungarian Law that practicing lawyers must be members of the Hungarian Bar Association.

Secondly, the Court of Budapest asks if Directive 98/5 constitutes a lex specialis with regard to Directive 89/48, which merely establishes the general rule of mutual recognition of higher education diplomas.

The Court of justice first examined the second question. Under Article 4 of Directive 89/48, regulated professions in EU law do not fall within the scope of the stated directive. Regarding the legal profession, directive 98/5 provides such regulation. However, article 10 of the latter states that the title of a licensed lawyer under the Law of a Member State can be recognised in another Member State if the person carrying this title has at least three years of experience in the legal profession. Considering that this requirement is satisfied in the present case, the title acquired by Mr. Ebert under German Law can be recognised under Hungarian Law by virtue of the two directives considered together.

With regard to the second question, the Court states that  under Articles 3 and 6 of Directive 89/48, a licensed lawyer in a Member State who asks admission to the legal profession in another Member State, must do so by satisfying the conditions that normally apply to the nationals of the latter. In consequence, Mr. Ebert must comply with the qualification requirements and rules on professional ethics, supervision and liability that apply in Hungary. The Court considers that it is for the national court to ascertain whether the Hungarian authorities had acted in compliance with the principle of non-discrimination. Therefore, neither of the two referred directives are to be interpreted as precluding national rules from laying down the requirement of membership in a Bar Association as a precondition for the admission to the legal profession.

Reproduction autorisée avec l’indication: Grozdanovski Ljupcho, "The general rule of mutual recognition applied to lawyers", www.ceje.ch, actualité du 16/2/2011.