The Court of Justice of the European Union, with the judgment filed July 17th, 2014 (Joined Cases C-58/13 and C-59/13, Torresi) legitimate in concrete the practice of “qualification shopping” relaying on the Article 3 of the Directive 98/5/EU
– Acquisition of the status of lawyer in another member state and then exercising the profession in your own country does not constitute an abuse of right.
The two Torresi, (Angelo Alberto and Pier Francesco) returned from Spain qualified as abogados(Spanish lawyers) and asked the Bar of Macerata (in Italy) to inscribe them on the special roll for registered European lawyers. The Bar Council of Macerata took no decision within one month (which was the time limit set by Italian law) and they then turned to the Consiglio Nazionale Forense (CNF) asking it to take action on their applications. The CNF was not convinced that Article 3 of the Directive could be used in such circumstances which it thought might constitute an ‘abuse of right’ and so referred the question to the Court of Justice of the European Union.
Increasingly common praxis in Italy
Instead of undergoing the required Italian period of legal practice and passing a State exam before being able to practice as an avvocato (Italian lawyer), which would take at least two years, they could qualify abroad more swiftly, and then return as lawyers from another Member State and practice in Italy as such.
The conclusion of the Advocate General Whal on the Case C-58/13(April, 14th 2014)
‘’The simple fact that a citizen chose to acquire the status of lawyer in another member state in order to benefit of a more favorable legislation does not constitute an abuse of right’’. ‘’The directive (98/5/EC) on the right of establishment of lawyers doesn’t admit the praxis of a member state to refuse, with the motivation of the abuse of right, the subscription to the Bar Council in the special section reserved to the lawyers who obtained this qualification in another member state when, shortly after obtaining the professional title in another member state, they return to their original state’’. This is the conclusion of the Advocate General to the CJUE in the case C-58\13 after a request for a preliminary pronounce by the CNF (Italian national bar council) in quality of national court.(Torresi versus Consiglio dell’Ordinedegli Avvocati di Macerata).
The Advocate General continues: “The ascertainment of an abuse of right requires the competition of objective circumstances and a subjective element. The presentation to the competent authority of the host member state (in this case Italy) of a certificate of registration to the Bar Council of the member state of origin (in this case Spain) is the only requirement for the subscription in the host member state which allows the person to exercise this profession in the host member state. The EU legislator also does not intend to allow a member state to implement reverse discrimination by excluding his citizens from the rights conferred by that directive”. The Court has already established that the directive does not allow that the subscription of a lawyer in the host Member State can be subject to additional terms. For example, if you don’t need any previous experience to exercise as an ‘’abogado’’ in Spain, there is no reason to require such an experience to practice with the same professional title in another member state. So, it doesn’t matter if a lawyer wants to profit from more favorable foreign legislation and then submit an application for registration to the National Bar Council shortly after obtaining the professional title in another European country.
The decision of the CJUE
The conduct of an Italian citizen who goes to Spain in order to acquire the professional qualification of lawyer and then comes back to Italy to practice with the Spanish qualification does not constitute an abusive practice.
The consequence of that decision, ruled on an order of reference from the National Bar Council (CNF), is that the professional associations can no longer refuse the registration on the Bar Council to a subject who has completed such a process of qualification citing reasons of abuse of right, in relation to Directive 98/5 / EC.
Therefore, the mere fact that a citizen chooses to acquire a professional title in another Member State – in order to benefit from the more favorable legislation, does not constitute an abuse of right.
This the conclusion of the CJUE :“Article 3 of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained precludes the practice, on the part of a Member State, of refusing, on grounds of abuse of rights, to enter in the Bar Register, in the special section for lawyers qualified abroad, nationals of that Member State who, soon after obtaining the professional title in another Member State, return to the former Member State”.