Case C-250/03

Giorgio Emanuele Mauri

v

Ministero della Giustizia and Commissione per gli esami di avvocato presso la Corte d’appello di Milano

(Reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia)

(Article 104(3) of the Rules of Procedure – Access to the profession of advocate – Rules on the examination for authorisation to practice as a lawyer)

Order of the Court (Second Chamber), 17 February 2005

Summary of the Order

Freedom of movement for persons – Freedom of establishment – Lawyers – Examination determining access to the profession – Composition of the examination committee – Participation of lawyers – Whether permissible – Breach of Articles 81 EC and 82 EC – None

(Arts 43 EC, 81 EC and 82 EC)

Articles 43 EC, 81 EC and 82 EC do not preclude a national law which provides that, in connection with the examination regulating access to the profession of advocate, the examination committee is to be composed of five members appointed by the Minister for Justice, namely two judges, a professor of law and two advocates, the latter being nominated by the National Bar Council on a joint proposal by the bar councils of the district concerned.

As regards Article 43 EC, although an examination for access to the profession of advocate may indeed constitute an obstacle to the freedom of establishment, there is no evidence to suggest that, of itself, the rule relating to the composition of the examination committee constitutes a restriction on freedom of establishment, irrespective of the restriction which might result from the examination itself. In any event, even assuming that the participation of advocates in the State examination committee constitutes in itself a restriction on freedom of establishment, that participation may be justified by the public interest, namely the need to assess as well as possible the aptitude and ability of persons called to practise as advocates, and is suitable for securing the attainment of that objective.

If, furthermore, Articles 81 EC and 82 EC are infringed where a Member State requires or encourages the adoption of agreements, decisions or concerted practices contrary to Article 81 EC or reinforces their effects, require or encourage abuses of a dominant position contrary to Article 82 EC or reinforce the effects of such abuses or, lastly, where it divests its own rules of the character of legislation by delegating to private economic operators responsibility for taking decisions affecting the economic sphere, that is not the case where the Member State concerned delegates to a committee which includes lawyers, responsibility for taking decisions concerning access to the profession of advocate, when it occupies a significant position on the examination committee itself by the presence of two judges, the Ministry of Justice has substantial powers enabling it to supervise each stage of the examination committee’s proceedings and even to intervene in those proceedings if necessary, and, finally, a negative decision by the examination committee may be subject to a legal remedy.

(see paras 30-33, 35, 37, 42-45, 47, operative part)

ORDER OF THE COURT (Second Chamber) 17 February 2005 (1)

(Article 104(3) of the Rules of Procedure – Access to the profession of advocate – Rules on the examination for authorisation to practise as an advocate)

In Case C-250/03, REFERENCE for a preliminary ruling under Article 234 EC from the Tribunale amministrativo regionale per la Lombardia (Italy), made by order of 13 November 2002, received at the Court on 11 June 2003, in the proceedings

v

THE COURT (Second Chamber),

composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, C. Gulmann, R. Schintgen, J. Makarczyk and J. Klučka, Judges,

Advocate General: P. Léger,

the national court having been informed that the Court proposes to give its decision by reasoned order in accordance with Article 104(3) of its Rules of Procedure,

after hearing the Advocate General,

makes the following

‘Must the provisions of the Treaty enshrining, as interpreted by the Court of Justice, the protection of the Community principles of competition and non‑discrimination be interpreted as meaning that Italian national legislation, in particular Article 22 of Royal Decree-Law No 1578 of 27 November 1933, which makes access to pursuit of the professional economic activity of advocate subject to success in a prior State examination inasmuch as, for the purposes of assessment of aptitude and professional ability, it confers far-reaching powers on the local management entities of the professional body to which the practitioners already operating in the specific geographical territory belong, is contrary to [the Treaty] and therefore illegal?’

Observations submitted to the Court

Findings of the Court

Articles 81 EC and 82 EC

Article 43 EC

On those grounds, the Court (Second Chamber) rules as follows:

[Signatures]