Reinhard Gebhard V Consiglio Dell'Ordine degli Avvocati E Procuratori Di Milano C-55/94

Freedom of establishment for lawyers to provide services within the EU

Any restrictions on the freedom of establishment nationals of a Member State in the territory of another Member State are prohibited. Every national of a Member State who provides a service have the right to temporarily pursue his activity in other Member State where the service is provided, under the same conditions as are imposed by that State on its nationals and also the right to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin. Thanks to this landmark case, those are rights that we take for granted.


This historical judgment helped consolidate the freedom of establishment and imposed restrictions for the domestic law of the Member States to limit the right to the establishment.


The ECJ held that the freedom of establishment could only be subject to national rules that apply to exercise those services within the member state. They are proportionate, necessary, justified and non-discriminatory. So, only in this way can the national law be considered compatible with Community law.

Case Summary

The Consiglio Nazionale Forense (a national court of Italy) referred a reference for a preliminary ruling to the European Court of Justice on the interpretation of Council Directive 77/249/EEC of March 22, 1977, a relative of freedom of lawyers to provide services, to give a judgment in the main proceedings pending between Reinhard Gebhard and Consiglio dell’ Ordine degli Avvocati e Procurator di Milano.

 

Mr Gebhard, a German national, authorized to practise as a Rechtsanwalt in Germany and a member of the Bar of Stuttgart, was accused of contravening his obligations under Law No 31 of February 9, 1982, on freedom for lawyers who are nationals of a Member State of the European Community to provide services, because he was pursuing professional work in Italy as an advocate in his chambers in Milan, but his main customers were German.

 

Some Italian lawyers reported him to the Milan Bar Council, which gave him a disciplinary sanction, prohibited him from using the title avvocato and denied his request for registration in the list of lawyers in that Bar Council. So that, Gebhard challenged the compatibility of Italian domestic law with Community law.

 

Article 2 of Italian Law No. 31 of February 9, 1982, which implemented the Directive of Council Directive 77/249 / EEC of March 22, 1977, allowed nationals of other Member States to practice as lawyers in that State, as long as it is temporary.

 

The national court asked the CJEU if opening an establishment to practice already implies that it is not temporary and should be understood by quick activities.

 

The ECJ understood that the two chapters (freedom to provide services and freedom of establishment) are mutually exclusive since the Chapter on Services applies where the provider of services moves to another Member State to pursue his activity temporarily, while the right of establishment refers to the right to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit from that place.

 

The ECJ held that a national lawyer of any other Member State should have the right to establish on the territory of other State and pursue the activity there, due to the freedom of establishment. That right can be only limited if there are national measures, but only as long as those rules are proportional, necessary, justified by general interest and applied in a non-discriminatory manner.

 

Click here to read the whole case summary.

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