Morgenbesser v. Consiglio dell'Ordine degli Avvocati di Genova

(Case C-313/01)

Before the Court of Justice of the European Communities (Fifth Chamber)

ECJ

Presiding, Edward ( Rapporteur), acting as P.C.; La Pergola

and von Bahr JJ. Christine Stix-Hackl, Advocate General

November 13, 2003

EC law; Freedom of establishment; Professions; Qualifications H1 Establishment--Community law and national law--recognition of diplomas-- enrolment in the register of trainee lawyers in Italy--inapplicability of Directive 98/5--practicante not a regulated profession within Directive 89/48-- Arts 39 and 43 EC--obligation to take account of professional qualifications and relevant experience--comparative examination--principle of equivalence--no requirement of academic equivalence of diplomas--failure by competent authorities to take account of learning and skills acquired by applicant for enrolment. H2 Reference from Italy by the Corte Suprema di Cassazione (Supreme Court of Cassation) under Art.234 EC. H3 M, a French national living in Italy, applied to the Bar Council of Genoa for enrolment in the register of praticanti (those training for the bar). She possessed a diploma of maîtrise en droit obtained in France, had undertaken eight months of legal work in a Paris law office and had joined a firm of avvocati registered with the Genoa Bar. Her application was rejected by the Bar Council of Genoa, which cited a provision of Italian law making enrolment in the register of praticanti subject to the holding of a legal diploma issued or confirmed by an Italian university. M appealed against that decision to the Consiglio Nazionale Forense, which dismissed her appeal on the ground that she was not qualified to carry on the profession of avocat in France and did not hold the necessary professional qualification for enrolment in the register of praticanti in Italy. On further appeal, the national court asked the Court of Justice the question whether Community law required that a diploma issued to a Community national in one Member State could *809 automatically be relied on in another Member State in order to obtain enrolment as a trainee for the bar.

Held: Inapplicability of Directive 98/5 H4 Directive 98/5 only concerned lawyers fully qualified as such in their Member State of origin. It did not apply to persons who had not yet acquired the professional qualification necessary to practise the profession of lawyer, and was therefore not applicable in the case at issue. [45] Work as praticante not constituting a regulated profession within the meaning of Directive 89/48 H5 Directive 89/48 applied to any national of a Member State wishing to pursue a regulated profession in a host Member State in a self-employed capacity or as an employed person. According to Arts 1(c) and (d) of the directive, a profession should be regarded as regulated where access to, or pursuit of, the professional activity in question was governed by laws, regulations or administrative provisions that created a system under which that professional activity was expressly reserved for those who fulfilled certain conditions and access to it was prohibited to those who did not fulfil them. Access to the activities of praticante and praticante-patrocinante, and the pursuit of those activities, were governed by legal provisions of that kind. However, it followed from those provisions that the pursuit of activities that kind was designed to constitute the practical part of the training necessary for access to the profession of avvocato. If, at the end of those six years, the praticante-patrocinante did not pass the prescribed examination, he would no longer be authorised to pursue the activities which he carried on in that capacity. In those circumstances, the activity of praticante-patrocinante could not be described as a regulated profession within the meaning of Directive 89/48 separate from that of avvocato. The fact that a significant number of praticanti-patrocinanti who had not passed the final examination continued to exercise legal activities and were not removed from the register of praticanti could not have the effect of qualifying the activities of praticante or patrocinante as a regulated profession within the meaning of Directive 89/48. [46]-[53] Aranitis ( C-164/94): [1996] E.C.R. I-135; Fernández de Bobadilla ( C-234/97): [1999] E.C.R. I-4773; [1999] 3 C.M.L.R. 151, followed. M not able to rely on any other provisions of Directive 89/48 H6 M had not obtained in France the professional qualifications for access to the status of stagiaire at the bar of that Member State. The maîtrise en droit which she held did not, in itself, constitute a diploma, certificate or other evidence of formal qualifications within the meaning of Art.1(a) of Directive 89/48, and M was not therefore able to rely on that directive. [54]-[55] Obligation under Arts 39 and 43 EC to take account of professional qualifications and experience of a national of a Member State H7 The matter at issue was the pursuit of activities, normally remunerated by the client or by the firm for which the praticante worked, with a view to access to a *810 regulated profession to which Art.43 EC applied. In so far as the remuneration of the praticante took the form of a salary, Art.39 EC might also apply. The analysis was the same in both cases. The authorities of a Member State, when considering a request by a national of another Member State for authorisation to exercise a regulated profession, had to take into consideration the professional qualification of the person concerned by making a comparison between the qualifications certified by his diplomas, certificates and other

formal qualifications and by his relevant professional experience and the professional qualifications required by the national rules for the exercise of the profession in question. That obligation extended to all diplomas, certificates and other evidence of formal qualifications as well as to the relevant experience of the person concerned, irrespective of whether they were acquired in a Member State or in a third country, and it did not cease to exist as a result of the adoption of directives on the mutual recognition of diplomas [57]-[61] Vlassopoulou ( C-340/89): [1991] E.C.R. I-2357; [1993] 2 C.M.L.R. 221; Commission v Spain ( C-232/99): [2002] E.C.R. I-4235; Hocsman ( C-238/98): [2000] E.C.R. I-6623; [2000] 3 C.M.L.R. 1025, followed. No requirement of academic equivalence of diplomas H8 The exercise of the right of establishment was hindered if national rules failed to take account of learning, skills and qualifications already acquired by the person concerned in another Member State. In that context, it was not necessary to examine the academic equivalence of the diploma relied upon by the person concerned in relation to the diploma normally required of nationals of that State. Instead, the competent authority was required to examine, in accordance with the principles set out in Vlassopoulou and Fernández de Bobadilla, on an objective basis, whether the foreign diploma certified that its holder had knowledge and qualifications which were, if not identical, at least equivalent to those certified by the national diploma. That assessment had to be carried out exclusively in the light of the level of knowledge and qualifications which its holder could be assumed to possess having regard to that diploma, and having regard to the nature and duration of the studies and practical training to which the diploma related. In the course of that examination, a Member State might, however, take into consideration objective differences relating to both the legal framework of the profession in question in the Member State of origin and to its field of activity. If that comparative examination resulted in the finding that the knowledge and qualifications certified by the foreign diploma corresponded to those required by the national provisions, the Member State had to recognise that diploma as fulfilling the requirements laid down by its national provisions. If, on the other hand, the comparison revealed that the knowledge and qualifications certified by the foreign diploma and those required by the national provisions corresponded only partially, the host Member State was entitled to require the person concerned to show that he had acquired the knowledge and qualifications which were lacking. By the same token, the competent national authorities had to measure whether the learning and skills acquired in the host Member State, either through a course of study or by way of practical experience, sufficiently demonstrated that the missing knowledge and qualifications had in the meantime been acquired. [62]-[71] *811 Vlassopoulou( C-340/89): [1991] E.C.R. I-2357; [1993] 2 C.M.L.R. 221; Fernández de Bobadilla ( C-234/97): [1999] E.C.R. I-4773; [1999] 3 C.M.L.R. 151; Thieffry ( 71/76): [1977] E.C.R. 765; [1977] 2 C.M.L.R. 373; Heylens and Others ( 222/86): [1987] E.C.R. 4097; [1989] 1 C.M.L.R. 901, followed. Reliance of foreign diploma not constituting ground for refusal to enrol Member State national as praticante H9 Community law precluded the authorities of a Member State from refusing to enrol the holder of a legal diploma obtained in another Member State in the register of persons undertaking the necessary period of practice for admission to the bar solely on the ground

that it was not a legal diploma issued, confirmed or recognised as equivalent by a university of the first State. [72] H10 Cases referred to in the judgment: 1. Aranitis v Land Berlin ( C-164/94), February 1, 1996: [1996] E.C.R. I-135. 2. Commission of the European Communities v Spain ( C-232/99), May 16, 2002: [2002] E.C.R. I-4235. 3. Fernández de Bobadilla v Museo Nacional del Prado and Others ( C-234/97), July 8, 1999: [1999] E.C.R. I-4773; [1999] 3 C.M.L.R. 151. 4. Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano ( C-55/94), November 30, 1995: [1995] E.C.R. I-4165; [1996] 1 C.M.L.R. 603. 5. Hocsman v Ministre de l'Emploi et de la Solidarité; ( C-238/98), September 14, 2000: [2000] E.C.R. I-6623; [2000] 3 C.M.L.R. 1025. 6. Thieffry v Conseil de L'Ordre des Avocats á La Cour de Paris ( 71/76), April 28, 1977: [1977] E.C.R. 765; [1977] 2 C.M.L.R. 373. 7. Union Nationale des Entraineurs et Cadres Techniques Professionnels du Football (UNECTEF) Heylens and Others ( 222/86), October 15, 1987: [1987] E.C.R. 4097; [1989] 1 C.M.L.R. 901. 8. Vlassopoulou v Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemberg ( C-340/89), May 7, 1991: [1991] E.C.R. I-2357; [1993] 2 C.M.L.R. 221. H11 Further cases referred to by the Advocate General: 9. Bernini (MJE) v Minister van Onderwijs en Wetenschappen ( C-3/90), February 26, 1992: [1992] E.C.R. I-1071. 10. Bettray v Staatssecretaris van Justitie ( 344/87), May 31, 1989: [1989] E.C.R. 1621; [1991] 1 C.M.L.R. 459. 11. Colegio Oficial de Agentes de la Propriedad Inmobiliaria v Borrell and Others ( C-104/91), May 7, 1992: [1992] E.C.R. I-3003. 12. Commission of the European Communities v Italy ( C-145/99), March 7, 2002: [2002] E.C.R. I-2235. 13. Conseil National de l'Ordre des Architectes v Dreessen ( C-31/00), January 22, 2002: [2002] E.C.R. I-663; [2002] 2 C.M.L.R. 62. 14. Deliège v Ligue Francophone de Judo et Disciplines Associées (ASBL) and Others( C 51/96 & 191/97), April 11, 2000: [2000] E.C.R. I-2549; [2002] 2 C.M.L.R. 1574. *812 15. Haim v Kassenzahnärztliche Vereinigung Nordrhein (KVN) ( C-319/92), February 9, 1994: [1994] E.C.R. I-425; [1994] 2 C.M.L.R. 169. 16. Jany and Others v Staatssecretaris van Justitie ( C-268/99), November 20, 2001: [2001] E.C.R. I-8615; [2003] 2 C.M.L.R. 1. 17. Kraus v Land Baden-Württemberg ( C-19/92), March 31, 1993: [1993] E.C.R. I-1663. 18. Lawrie-Blum v Land Baden-Württemberg ( 66/85), July 3, 1986: [1986] E.C.R. 2121; [1987] 3 C.M.L.R. 389. 19. Union Royale Belge des Sociétés de Football Association (ASBL) and Others v Bosman ( C-415/93), December 15, 1995: [1995] E.C.R. I-4921; [1996] 1 C.M.L.R. 645.

H12 Representation G Borneto and G Conte (in the oral proceedings only), avvocato, for Christine Morgenbesser. IM Braguglia, assisted by G Fiengo, and A Cingolo (in the oral proceedings only), avvocato dello Stato, for the Italian Government. J Molde, acting as Agent, for the Danish Government. E Traversa and M Patakia, acting as Agents, for the Commission of the European Communities. M Condinanzi (in the oral proceedings only), avvocato, for the Consiglio dell'Ordine degli avvocati di Genova.

OPINION

I -- Introduction AG1 [FN1]The present proceedings concern recognition of a "maîtrise en droit", obtained in France, for the purpose of enrolment in a register of trainee lawyers in Italy. The case concerns the interpretation of freedom of establishment, freedom to provide services, Council Directive 89/48 of December 21, 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (hereinafter " Directive 89/48") [FN2] and Directive 98/5 of the European Parliament and of the Council of February 16, 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 (hereinafter " Directive 98/5"). [FN3] FN1 Opinion of AG Stix-Hackl, delivered on March 20, 2003. FN2 [1989] O.J. L19/16. FN3 [1998] O.J. L77/36.

II -- Legal framework

A -- Community law AG2 The relevant provisions in the present case are those relating to freedom of establishment and freedom to provide services and Directives 89/48 and 98/5.

*813 1. Directive 89/48 AG3 Directive 89/48 introduced a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration. Article 2 provides that the directive is to apply to any national of a Member State wishing to pursue a regulated profession in another Member State in a self-

employed capacity or as an employed person. AG4 Article 1 of Directive 89/48 provides, inter alia: "For the purposes of this directive the following definitions shall apply: (a) diploma: any diploma, certificate or other evidence of formal qualifications or any set of such diplomas, certificates or other evidence: -- which has been awarded by a competent authority in a Member State, designated in accordance with its own laws, regulations or administrative provisions; -- which shows that the holder has successfully completed a post-secondary course of at least three years' duration, or of an equivalent duration part-time, at a university or establishment of higher education or another establishment of similar level and, where appropriate, that he has successfully completed the professional training required in addition to the post-secondary course, and -- which shows that the holder has the professional qualifications required for the taking up or pursuit of a regulated profession in that Member State, provided that the education and training attested by the diploma, certificate or other evidence of formal qualifications were received mainly in the Community, or the holder thereof has three years' professional experience certified by the Member State which recognised a third-country diploma, certificate or other evidence of formal qualifications. The following shall be treated in the same way as a diploma, within the meaning of the first subparagraph: any diploma, certificate or other evidence of formal qualifications or any set of such diplomas, certificates or other evidence awarded by a competent authority in a Member State if it is awarded on the successful completion of education and training received in the Community and recognised by a competent authority in that Member State as being of an equivalent level and if it confers the same rights in respect of the taking up and pursuit of a regulated profession in that Member State; ... (c) a regulated profession: the regulated professional activity or range of activities which constitute this profession in a Member State; (d) regulated professional activity: a professional activity, in so far as the taking up or pursuit of such activity or one of its modes of pursuit in a Member State is subject, directly or indirectly by virtue of laws, *814 regulations or administrative provisions, to the possession of a diploma. The following in particular shall constitute a mode of pursuit of a regulated professional activity: -- pursuit of an activity under a professional title, in so far as the use of such a title is reserved to the holders of a diploma governed by laws, regulations or administrative provisions, ..." AG5 Article 3 of Directive 89/48, which sets out the principles for the taking up and pursuit of a regulated profession, provides: "Where, in a host Member State, the taking up or pursuit of a regulated profession is subject to possession of a diploma, the competent authority may not, on the grounds of inadequate qualifications, refuse to authorise a national of a Member State to take up or pursue that profession on the same conditions as apply to its own nationals: (a) if the applicant holds the diploma required in another Member State for the taking up or pursuit of the profession in question in its territory, such diploma having been awarded in a Member State; or

(b) if the applicant has pursued the profession in question full-time for two years during the previous ten years in another Member State which does not regulate that profession, within the meaning of Art.1(c) and the first subparagraph of Art.1(d), and possesses evidence of one or more formal qualifications: -- which have been awarded by a competent authority in a Member State, designated in accordance with the laws, regulations or administrative provisions of such State, -- which show that the holder has successfully completed a post-secondary course of at least three years' duration, or of an equivalent duration part-time, at a university or establishment of higher education or another establishment of similar level of a Member State and, where appropriate, that he has successfully completed the professional training required in addition to the post-secondary course and -- which have prepared the holder for the pursuit of his profession. The following shall be treated in the same way as the evidence of formal qualifications referred to in the first subparagraph: any formal qualifications or any set of such formal qualifications awarded by a competent authority in a Member State if it is awarded on the successful completion of training received in the Community and is recognised by that Member State as being of an equivalent level, provided that the other Member States and the Commission have been notified of this recognition." AG6 Article 4 of Directive 89/48 permits the host State to make the taking up of a regulated profession subject to certain conditions. It provides that the host State may "require the applicant: *815 (a) to provide evidence of professional experience, where the duration of the education and training adduced in support of his application, as laid down in Art.3(a) and (b), is at least one year less than that required in the host Member State ..."

2. Directive 98/5 AG7 Directive 98/5 applies to both self-employed and employed persons. The second recital states: "Whereas, pursuant to Council Directive 89/48 of December 21, 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration, a lawyer who is fully qualified in one Member State may already ask to have his diploma recognised with a view to establishing himself in another Member State in order to practise the profession of lawyer there under the professional title used in that State; whereas the objective of Directive 89/48 is to ensure that a lawyer is integrated into the profession in the host Member State, and the directive seeks neither to modify the rules regulating the profession in that State nor to remove such a lawyer from the ambit of those rules." AG8 Article 1 of Directive 98/5 provides: "1. The purpose of this directive is to facilitate practice of the profession of lawyer on a permanent basis in a self-employed or salaried capacity in a Member State other than that in which the professional qualification was obtained. 2. For the purposes of this directive: (a) 'lawyer' means any person who is a national of a Member State and who is authorised to pursue his professional activities under one of the following professional titles ...". AG9 According to Art.2, any lawyer "shall be entitled to pursue on a permanent basis, in any other Member State under his home-country professional title, the activities specified

in Art.5". AG10 Article 5 defines the area of activity of lawyers. It provides that, "a lawyer practising under his home-country professional title carries on the same professional activities as a lawyer practising under the relevant professional title used in the host Member State and may, inter alia, give advice on the law of his home Member State, on Community law, on international law and on the law of the host Member State. He shall in any event comply with the rules of procedure applicable in the national courts".

B -- National law AG11 A person who wishes to be registered in Italy as a trainee lawyer must hold an academic qualification obtained in Italy or a diploma recognised by an Italian university. AG12 *816 The provisions relating to the taking up and pursuit of the profession of lawyer in Italy are contained in Regio decreto Legge No.1578, Ordinamento delle professioni di avvocato e procuratore (Royal Decree-Law No.1578 on the organisation of the professions of avvocato and procuratore) of November 27, 1933 (hereinafter "Decree-Law No.1578"), [FN4] as converted into Law No.36 of January 22, 1934, [FN5] as amended. FN4 GURI No.281 of December 5, 1933. FN5 GURI No.24 of January 30, 1934. AG13 Article 8 of Decree-Law No.1578/33 provides: "Any person who successfully completes the academic study of law and the period of practical training provided for in Art.17 shall, on application and production of a certificate by the lawyer in whose chambers he has worked, be registered in a special register maintained by the Bar Council for the area where he resides, and shall be subject to the disciplinary powers of that Council. One year after his registration in the register referred to in subpara.1, a trainee lawyer shall be authorised to practise at the bar of the courts for the district to which the local bar which maintains the register belongs, such authorisation to last no more than six years and to be restricted to proceedings that fell within the jurisdiction of the pretore prior to the entry into force of the Decreto legislativo (Legislative Decree) implementing Law No.254 of July 16,1997. Subject to those restrictions, in criminal proceedings before those tribunals trainee lawyers can be instructed to appear as duty defence lawyer, act as prosecutor and lodge appeals on behalf of a defendant or the prosecution. A person shall not be entitled to practise at the bar or to pursue the activities referred to in subpara.2 above unless he has taken an oath in the following form before the President of Tribunals for the district in which he is registered as a trainee lawyer: ..." AG14 Article 17(1) of Decree-Law No 1578 provides: "In order to be enrolled as a member of the Bar, a person must: (1) be an Italian national or an Italian from a region not politically linked to Italy; ... (4) hold a diploma in law ('laurea in giurisprudenza') issued or confirmed by an Italian university;

(5) after obtaining that diploma, have completed a period of practice ('periodo di pratica') of at least two consecutive years in the office of an avvocato, involving attendance at hearings in civil and criminal proceedings before the Corte d'Appello (Court of Appeal) and the Tribunale (District Court), in accordance with detailed rules to be promulgated pursuant to Art.101; or, over the same period, have carried on legal representation and defence activities before the Preture within the meaning of Art.8; *817 ... (7) reside in the judicial district of the court to which the Bar at which enrolment is sought is attached." AG15 Legge No.146, Disposizioni per l'adempimento di obblighi derivanti dall'appartenenza dell'Italia alla Comunità europea, legge comunitaria 1993 (Law No 146 laying down rules for fulfilment of the obligations arising from Italy's membership of the European Community 1993) removed the requirement of nationality and provided in Art.10: "Nationals of Member States of the European Community shall be treated in the same way as Italian citizens for the purposes of enrolment as a member of the Bar as referred to in Art.17 of Royal Decree-Law No.1578 of November 27, 1933 ... on the organisation of the profession of avvocato." AG16 Decreto Legislativo No.115 of January 27, 1992 concerning recognition of proof of professional training obtained within the European Community [FN6] (hereinafter "Decree No.115/92") is intended to transpose Directive 89/48. Article 1 provides: "1. Under the conditions laid down by the provisions of this decree, recognition shall be granted in Italy to diplomas issued in a Member State of the European Community certifying professional training and the holding of which is made a precondition for the pursuit of a profession by the legislation of that State ... FN6 GURI No.40 of February 18, 1992, p.6. 2. Recognition shall be granted in favour of Community nationals for the purposes of pursuing in Italy, in a self-employed capacity or as an employed person, the profession corresponding to that for which they are qualified in the country which issued the diploma referred to in the preceding paragraph. 3. Diplomas shall be recognised if they certify that the applicant has successfully completed a post-secondary course of at least three years' duration ... at a university or establishment of higher education or another establishment of similar level." AG17 Article 2 of Decree No 115 provides: "For the purposes of this Decree, the following shall be considered to be professions: (a) activities the pursuit of which requires enrolment in a register or list maintained by an authority or public body, where enrolment is conditional upon completion of professional training satisfying the requirements of Art.1(3); (b) employment of public or private employees, where by virtue of laws, regulations or administrative provisions the taking up of such is conditional upon completion of professional training satisfying the requirements of Art.1(3); (c) activities pursued with a professional title the use of which is reserved for persons who have completed professional training in accordance with the conditions laid down in Art.1(3);

*818 ..." AG18 Article 6 lays down the conditions for recognition and provides for an aptitude test in respect of specified legal professions. AG19 Article 11 designates, by professional groups, the authorities competent to entertain applications for recognition. As regards the legal professions, only the activities of a lawyer are regulated. Article 12 lays down how an application for recognition is to be made to the competent minister. AG20 As is apparent from the judgment of the Court in Case C-145/99 Commission v Italy, [FN7] points 1, 4 and 5 of Art.17(1) of Decree-Law No.1578 (requirement of nationality) were repealed by Art.10 of Law No.146/94, and the provisions relating to possession of an Italian diploma in law and completion of a period of practical training were repealed by Decree No.115. As the Italian Government made clear at the oral hearing, although point 4 of Art.17(1) no longer applies to lawyers, it still applies to trainee lawyers. FN7 [2002] E.C.R. I-2235, paras [33] and [36] et seq AG21 In principle, Italian law distinguishes between two classes of trainee lawyers, namely mere trainees ("praticanti") and patrocinatori, the latter being authorised to provide a broader range of services. A person is entitled to become a patrocinatore after one year in practice, and to be one for six years in all.

III -- Facts, main proceedings and question referred AG22 On October 27, 1999, Christine Valia Morgenbesser, a French national resident in Italy, applied to the Consiglio dell'Ordine degli Avvocati di Genova (Genoa Bar Council) for enrolment in the register of trainee lawyers. For that purpose, she presented documentation to show that she had obtained in France the academic qualification of maîtrise en droit in 1996. Thereafter she had practised as a lawyer in Paris chambers for eight months, before commencing practice in chambers in Genoa in April 1998. AG23 Her application was rejected by decision of November 4, 1999. In that decision, the Consiglio considered that the application was precluded by point 4 of Art.17(1) of Decree-Law No.1578 of November 27, 1933, in accordance with which enrolment required, inter alia, possession of a diploma in law issued or confirmed by an Italian university. AG24 On December 2, 1999, Ms Morgenbesser appealed against that decision in accordance with the legislative provisions, alleging infringement of Decree No.115 transposing Directive 89/48, and of the EC Treaty rules on fundamental freedoms. She argued that point 4 of Art.17(1) should be regarded as implicitly repealed. AG25 By decision dated May 12, 2000, her appeal was dismissed by the Consiglio Nazionale Forense (National Bar Council), on the ground that Ms Morgenbesser had not been entitled to pursue the profession of lawyer in France, and that she did not have the professional title necessary to entitle her to enrolment as a trainee lawyer. AG26 Ms Morgenbesser's request for recognition in Italy of her academic qualification was rejected by the Minstero della Giustizia (Ministry of Justice), which *819 declared itself not competent on the ground that it was an academic qualification in issue and not recognition of the exercise of the profession of lawyer. The University of Genoa made

confirmation of her French qualification dependent on Ms Morgenbesser following a course, passing 13 examinations and submitting a thesis; Ms Morgenbesser was exempted from only six mandatory subjects and seven optional ones. Ms Morgenbesser appealed against the decision of the university to the Tribunale Amministrativo Regionale (Regional Administrative Court), Livorno. This case is currently pending before the Consiglio di Stato (Council of State). AG27 Subsequently, she applied to the Corte suprema di cassazione (Supreme Court of Cassation) for a question to be referred to the Court of Justice for a preliminary ruling, in order to obtain a judgment on the interpretation of Arts 10 EC, 12 EC, 14 EC, 39 EC and 43 EC. AG28 Ms Morgenbesser requests that she be enrolled in the register of trainee lawyers, notwithstanding that her academic qualification has not been approved in Italy, on the ground that the academic qualification she obtained in France ought to be recognised in Italy automatically. AG29 By order dated April 19, 2001, which reached the Court Registry on August 8, 2001, the Corte suprema di cassazione refers the following question to the Court of Justice of the European Communities for a preliminary ruling: "Irrespective of recognition and confirmation of equivalence, can a diploma issued to a Community national in a Member State (in this case, France) automatically be relied upon for the purposes [FN8] [of obtaining enrolment in the register of persons undertaking the necessary period of practice for admission to the bar] in another Member State (in this case Italy), by virtue of the rules of the EC Treaty ... on freedom of establishment and the freedom to provide services ( Arts 10 EC, 12 EC, 14 EC, 39 EC and 43 EC ...) and by virtue of Art.149 EC ...?" FN8 That is, enrolment in a professional register.

IV -- The question referred

A -- Submissions of the parties AG30 Ms Morgenbesser submits that the activity of a trainee lawyer constitutes a "profession" for the purposes of Directive 89/48, even where the activity consists in professional training with a view to pursuing the profession of lawyer in the future. She reaches this conclusion on the basis of Art.8 of Decree-Law No.1578, and submits that the area of activity of a trainee lawyer comprehends independent management of ongoing legal proceedings, giving clients legal advice and representing and defending them in specific legal proceedings, and that she is subject to the professional rules which apply to lawyers. Ms Morgenbesser also submits that there is an analogy with the case law of the Court to the effect that a trainee is to be classified as a worker. *820 [FN9] FN9 Bernini ( C-3/90): [1992] E.C.R. I-1071; and Lawrie-Blum v Land Baden-Württemberg ( 66/85): [1986] E.C.R. 2121; [1987] 3 C.M.L.R. 389. AG31 Ms Morgenbesser is of the view that the necessity for prior recognition of her diploma by an Italian university (as laid down by point 4 of Art.17(1) of Decree-Law No.1578) infringes Directive 89/48. Specifically, the directive provides that a diploma

awarded by one Member State to enable the pursuit of a profession may be relied upon in another Member State. AG32 On the basis of the judgment in Fernández de Bobadilla, [FN10] Ms Morgenbesser submits that it is illogical to require a trainee lawyer to obtain recognition of his or her diploma by an Italian university and, in principle, to complete an additional period of qualification in accordance with Italian law, given that a trainee lawyer's area of activity is more restricted than that of a lawyer. FN10 Case C-234/97: [1999] E.C.R. I-4773; [1999] 3 C.M.L.R. 151. AG33 Should Directive 89/48 not apply, Ms Morgenbesser submits in the alternative that Art.43 EC has been infringed. If Directive 89/48 were applicable, the competent authority could not impose the additional condition that diplomas from other Member States be recognised by national authorities: instead, such diplomas would automatically be equivalent, provided they satisfied the requirements of the directive. The competent authority would be required to assess whether a diploma awarded by a different Member State satisfied the provisions of the host Member State relating to knowledge and qualifications. If they satisfied those provisions, recognition and enrolment in the professional register would follow. AG34 On the basis of its understanding of national law, the Consiglio dell'Ordine degli Avvocati di Genova (Bar Council of Genoa) has concluded that trainee lawyers do not pursue a profession within the meaning of Directive 89/48. AG35 The Bar Council of Genoa also submits that, under the professional rules, trainee lawyers do not even pursue an economic activity within the meaning of the case law of the Court; rather, they are merely trainees. Their activities are of limited duration and are carried out under supervision. Finally, the end product necessary for Directive 89/48 to apply, namely a completed period of training, is lacking. AG36 The Danish Government submits that a trainee lawyer cannot automatically rely on a diploma awarded by another Member State in order to claim enrolment in a professional register. AG37 It states that a person seeking registration in Denmark as a trainee lawyer has to obtain confirmation from the University of Copenhagen that the diploma he has been awarded in a different Member State is equivalent. If the qualifications and knowledge evidenced by the foreign diploma are not equivalent, the Danish Justice Ministry is entitled to require an additional period of training with a Danish lawyer of up to two years, depending on the circumstances of the individual case. An assessment has to be undertaken in accordance with the principles laid down in Vlassopoulou. [FN11] However, this is far from implying that foreign diplomas have to be recognised automatically, as Ms Morgenbesser submits they should. FN11 Case C-340/89: [1991] E.C.R. I-2357; [1993] 2 C.M.L.R. 221. AG38 The Danish Government is of the view that Directive 89/48 does not apply to the present case, since it applies only to lawyers who are already qualified, and not to trainee lawyers. None the less, a period of practical training completed in a different Member State could be taken into account under Art.5 of the directive.

AG39 *821 The Italian Government submits that the requirements for admission to the profession of lawyer in Italy (namely completion of academic legal studies, completion of two years' traineeship and passing of an examination) guarantee the professional quality of lawyers. Not even the provisions of the EC Treaty relating to freedom of establishment and freedom to provide services imply that a diploma is to be recognised automatically in another Member State. The Italian Government argues that the activity of a trainee lawyer is not to be regarded as a regulated profession for the purposes of Directive 89/48. Moreover, the case concerns recognition of an academic title, which is different from recognition of proof of professional qualifications. AG40 The Commission states that, even if Directives 89/48 and 98/5 do not apply, effect has to be given to the general principles developed in Vlassopoulou and Gebhard [FN12] as regards the interpretation of Art.43 EC. The reference for a preliminary ruling asks whether, if Directive 89/48 does not apply, Art.43 EC itself prohibits certain national provisions, which, in the main proceedings, means in particular provisions requiring an assessment by a national university of whether diplomas awarded in other Member States are equivalent, attendance at courses, the passing of 13 examinations and the submission of a thesis. FN12 Case C-55/94: [1995] E.C.R. I-4165; [1996] 1 C.M.L.R. 603. AG41 The Commission maintains that, in this case, the administrative practice of the Italian universities in assessing whether diplomas awarded in other Member States are equivalent do not allow any distinction to be drawn by reference to the legal system the foreign diploma is from. That, it submits, is contrary to the judgment in Vlassopoulou, which requires the competent authorities of the Member State to undertake an individual comparison of the diploma in question with the requirements laid down by national law. AG42 In the alternative, the Commission submits that Directive 89/48 applies if the activity of a trainee lawyer is to be classified as a "regulated profession". At the oral hearing, however, the Commission made it clear that, in its view, only activities that were carried out regularly on a permanent and definitive basis could constitute a profession for the purposes of Directive 89/48.

B -- Analysis AG43 By its question, the national court asks whether a Community national can automatically rely upon an academic qualification obtained in a different Member State. AG44 In substance, the question is whether a national provision which makes enrolment in a professional register subject to recognition by a national university is compatible with Directive 89/48 or, if that directive is not applicable, with Art.43 EC. In the case at issue in the main proceedings, attendance at a course, the passing of 13 examinations and the submission of a thesis were required. AG45 In its question, the Corte suprema di cassazione refers inter alia to a number of provisions of primary law, namely Arts 10 EC, 12 EC, 14 EC, 39 EC, 43 EC and 149 EC. However, before considering primary law, it has to be examined whether the facts in the main proceedings fall within the scope of any provisions of secondary law representing a finalised harmonisation. Directives 89/48 and 98/5 *822 are relevant. These directives require Member States to undertake an assessment of national transposition measures

relating to equivalence of foreign diplomas. [FN13] FN13 Jacques Pertek, La reconnaissance des diplômes, p.68.

1. Directive 98/5 AG46 It must first be considered whether Directive 98/5 is applicable to trainee lawyers such as the plaintiff in the main proceedings. AG47 As stated in the second recital of Directive 98/5, only a lawyer who is fully qualified is entitled to establish himself in another Member State. AG48 Article 1(1) of Directive 98/5 states that the purpose of the directive is to facilitate practice of the profession of lawyer on a permanent basis. This directive therefore supplements Directive 89/48. AG49 However, according to Art.1(2), Directive 98/5 applies only to persons authorised to pursue their professional activities under specified professional titles. As regards persons pursuing professional activities in France, only those authorised to pursue their activity under the title of "avocat" come within the scope of the directive. AG50 Thus, Directive 98/5 does not apply to persons still undergoing training, that is persons who have yet to fulfil all the conditions for taking up the profession of lawyer. AG51 Since trainee lawyers in Italy are likewise not yet lawyers (as the designation "praticanti" suggests), they do not fall within the scope of the directive. That applies in particular to persons who have not obtained all the qualifications necessary for taking up the profession of lawyer, such as the examinations which the home Member State requires trainees to sit, but have merely completed their academic qualification and obtained some practical experience. AG52 Therefore, Directive 98/5 does not apply in a case such as the present.

2. Directive 89/48 AG53 It must next be considered whether Directive 89/48 is applicable. In the present case, this depends on whether the area of activity of a trainee lawyer in Italy constitutes a "regulated profession" for the purposes of the directive. AG54 According to Art.1(c) of Directive 89/48, "regulated profession" means "the regulated professional activity or range of activities which constitute this profession in a Member State". AG55 Article 1(d) of the directive provides that "regulated professional activity" means "a professional activity, in so far as the taking up or pursuit of such activity or one of its modes of pursuit in a Member State is subject, directly or indirectly by virtue of laws, regulations or administrative provisions, to the possession of a diploma". 56 *823 The profession of trainee lawyer does not as such exist throughout the Community, but is defined by different Member States as comprising different activities: in this way, a profession can be subject to certain rules in only one Member State, in a number of Member States, or in all the Member States. The term "regulated profession" [FN14] does not refer exclusively to possession of a diploma or academic title, [FN15] but is characterised by the fact that it can also depend on other evidence of qualifications. FN14 As regards the term, see Jacques Pertek, Les avocats en Europe (2000), p.95.

FN15 Jacques Pertek, General recognition of diplomas and free movement of professionals (1992), p.19. AG57 It is for the Member States concerned to decide whether to regulate an activity (that is, to make it subject to certain national provisions). [FN16] FN16 Scordamaglia, "La direttiva Cee sul riconoscimento dei diplomi", in Problematica del diritto delle Comunità europee (1992) p.267, at p.275. AG58 That does not affect the fact that the term "regulated profession" is to be given an autonomous Community interpretation. At the same time, the question whether specific activities constitute a profession for the purposes of Directive 89/48 needs to be answered by reference to Community law. AG59 According to the case law of the Court of Justice, [FN17] a profession is "regulated" where the right to take up or pursue the activity, and thus the profession, is governed by legal provisions. Such legal regulation can be direct or indirect. It is direct where the laws, regulations or administrative provisions of the host Member State include provisions whereby the professional activity concerned is expressly restricted to persons who fulfil certain conditions and entry to the profession is denied to those who do not. [FN18] FN17 Aranitis ( C-164/94): [1996] E.C.R. I-135, paras [18] and [33]; and Fernández de Bobadilla, cited above, para.[16]. FN18 Aranitis, para.[19]; and Fernández de Bobadilla, para.[17], both cited above. AG60 Before examining whether the activities of a trainee lawyer in Italy constitute a regulated profession for the purposes of Directive 89/48, it is helpful first to consider the profession of lawyer more closely. The activities of trainee lawyers in Italy can then be compared and analysed on that basis. AG61 Directive 89/48 refers to the profession of lawyer as the "final product". If, in a Member State, access to the profession of lawyer requires an additional period of introductory practical training after the examination, under the supervision of a fully qualified lawyer, the professional training required in addition to the post-secondary course for the purposes of Directive 89/48 is not completed until it is certified that that training has been concluded. That is what constitutes the final product. AG62 In France and Italy, the Member States concerned in the present case, the profession of lawyer is a regulated profession, and those entitled to use the professional title have a monopoly right to pursue it. [FN19] FN19 Jacques Pertek, Les professions juridiques et judiciaires dans l'Union européenne, Droit administratif et droit communautaire. AG63 Even in the Member States in which a period of practical training is required, it is subject to different provisions. Thus, in most Member States it is regulated by the

relevant professional body, but in others it is regulated and assessed by State authorities. Where practical training is necessary for the pursuit of a specific profession, a university qualification on its own, without the necessary practical training, cannot be regarded as the final product. Thus, it does not fall within the scope of the directive. [FN20] FN20 Hildegard Schneider, Die Anerkennung von Diplomen in der Europäischen Gemeinschaft, p.172. AG64 Since entitlement to take up and pursue the profession of lawyer in Italy depends on passing an esame in abilitazione in addition to completion of practical training, possession of an academic qualification is not enough for that purpose. *824 [FN21] FN21 See Jacques Pertek, General Recognition of Diplomas and Free Movement of Professionals (1992), p.7. AG65 In Italy, practical training can take different forms. One is provision of quasi-independent legal advisory services in civil and criminal proceedings. This activity lasts at most six years. AG66 On that basis, if one applies the (admittedly broad) criteria the Court has laid down as regards the term "regulated activity" [FN22] to the activities of trainee lawyers in Italy, it is apparent that their activities are to be regarded as regulated, since the taking up and pursuit of those activities is subject to certain legal provisions. That applies not only to the activities of those who have a patrocinio but also for those who are merely trainees. FN22 See the case law cited in fnn.17 and 18. AG67 However, the fact that trainee lawyers pursue a regulated activity does not mean that they pursue a "regulated profession" within the meaning of Directive 89/48. AG68 The fact that the activities of trainee lawyers in Italy are limited in terms of time suggests that they are not to be regarded as a regulated profession for the purposes of Directive 89/48. A trainee lawyer carries out his activities only during the period of his training. The activities are merely an expression of the fact that the training for the profession of lawyer includes practical activities. [FN23] However, theoretically separating these activities from the training and regarding them as a profession fails to understand that the activity of a trainee lawyer -- at least, of a "patrocinatore" -- constitutes merely a stage on the route to the profession of lawyer. FN23 See, to the contrary, Görlitz, Gemeinschaftsrechtliche Diplomanerkennungspflichten und Zugang zum deutschen Vorbereitungsdienst, Europarecht (2000), p.836, at p.843, who classifies the German traineeship at least as professional activity. AG69 In her submissions, Ms Morgenbesser relied on the scope of the services trainee lawyers are authorised to provide, but this is limited by comparison with qualified lawyers, and is therefore another reason for not regarding trainee lawyers as belonging to a regulated profession for the purposes of Directive 89/48.

AG70 Finally, Art.6 of Decree No.115 also suggests that the activities of a trainee lawyer should not be regarded as a regulated profession within the meaning of Art.1 of Directive 89/48. Article 6 of Decree No.115 lists a number of legal professions, but "trainee lawyer" is not included. This implies that the Italian legislature did not intend to classify the activities of trainee lawyers as a profession. Thus, even if one were to leave classification as a profession to the Member State concerned -- though I do not suggest one should -- the applicable national law indicates that the activities of trainee lawyers do not constitute a profession for the purposes of Directive 89/48. AG71 The fact that the register in which trainee lawyers in Italy are enrolled is a "registro" and not an "albo", like the register for lawyers, cannot be decisive. Although this is a legitimate choice of designation by the Member State, it is not definitive.

3. Primary law obligations AG72 Since neither Directive 89/48 nor Directive 98/5 is applicable to the activity of trainee lawyers in the present case, the provisions of primary law must be considered. AG73 *825 The question refers to Arts 10 EC, 12 EC, 14 EC, 39 EC, 43 EC and 149 EC. It is necessary to consider the specific provisions of the Treaty before the general ones (namely Arts 10 EC, 12 EC and 14 EC). AG74 Although there is an abundance of case law as regards the profession of lawyer, including in Italy, this is the first case concerning the position of a trainee lawyer, that is to say of a trainee. This suggests one should start with the case law of the Court on the activities of trainees. AG75 According to the Court's case law on trainees, their activities can also fall within the scope of the law on free movement of workers. A condition for that, however, is that the activity must be "effective and genuine", and not "purely marginal and ancillary". [FN24] The condition can be satisfied notwithstanding that productivity, [FN25] working time or remuneration is low. [FN26] Likewise, the source of the remuneration is not decisive; nor is the fact that under national law the employment relationship concerned is " sui generis". [FN27] FN24 Bettray ( 344/87): [1989] E.C.R. 1621; [1991] 1 C.M.L.R. 459, para. [13]; and Bernini, cited above, para.[14]. In general, see Jany and Others ( C-268/99): [2001] E.C.R. I-8615; [2003] 2 C.M.L.R. 1, para.[33]; and see Deliège ( C 51/96 & 191/97): [2000] E.C.R. I-2549; [2002] 2 C.M.L.R. 1574, paras [53] and [54]. FN25 Bettray, cited above, para.[15]. FN26 Lawrie-Blum, para.[21]; and Bernini, para.[16], both cited above. FN27 Bettray, cited above, paras [15] et seq. AG76 The present case concerns a very specific set of facts, involving not the admission of a fully qualified trainee lawyer from one Member State to the legal professional examinations of another Member State, but the completion of professional legal training commenced in another Member State. AG77 Thus, the case concerns admission to practical training in the host State and the

question whether and, if so, on what conditions the host State is under an obligation to admit persons with a university qualification from a different Member State to practical training. AG78 As has already been mentioned, practical training is within the scope of the provisions relating to free movement of workers, and given an employment relationship they accordingly apply to practical training, such as that of Italian trainee lawyers. It follows that the taking up of such practical training also falls within the scope of this fundamental freedom. AG79 Since it appears from the facts in the main proceedings that the activities are not pursued in a way which causes them to fall within the law on the freedom to provide services, the question is whether free movement of workers or freedom of establishment applies. During the proceedings before the Court, it was frequently stated that Ms Morgenbesser's case concerned freedom of establishment, and this is therefore the freedom to be considered first in the following analysis. This approach is also suggested by the parallels in this regard with the facts in Gebhard. [FN28] FN28 Cited above. AG80 It is therefore necessary to consider the interpretation of Art.43 EC concerning freedom of establishment. AG81 As the Commission submitted, the principles developed in the case law concerning free movement of workers and freedom to provide services as regards recognition of diplomas or other professional qualifications may be applied to *826 freedom of establishment. [FN29] The particular matter at issue is the obligation under primary law to recognise diplomas and assess their equivalence. FN29 In this connection, the Commission relied on Bosman ( C-415/93): [1995] E.C.R. I-4921; [1996] 1 C.M.L.R. 645, para.[97], even though it concerns the converse situation, namely the possibility of applying the principles relating to freedom of establishment to free movement of workers. AG82 As a matter of principle, a distinction must be drawn between two types of system for recognising diplomas and other qualifications. AG83 The first system, which is provided for by the specific or vertical directives, provides for automatic recognition following a purely formal assessment of whether the diploma for which recognition is sought is included in the list of diplomas that must be recognised. AG84 The second system -- and in the present proceedings only this type of system can apply -- requires a substantive assessment of the evidence submitted. The assessment consists essentially of a comparison of the qualifications acquired in the home State with those required in the host State. Thus, what is assessed is whether the abilities (knowledge and qualifications) are equivalent, particularly as regards duration and content of training. AG85 The starting point [FN30] for that case law is generally accepted as being the judgment in Vlassopoulou, [FN31] though the principle is older in its application to the legal professions. [FN32] In Vlassopoulou, the Court had to consider the case of a Greek

lawyer who sought admission to the German legal profession in reliance specifically on knowledge of German law acquired through courses of study and practical professional experience in Germany, but who had been refused on the ground that she did not have the State exam. FN30 See Heylens ( 222/86): [1987] E.C.R. 4097; [1989] 1 C.M.L.R. 901 on the question as to whether there is a primary law obligation deriving from the fundamental freedoms requiring an objective assessment of knowledge and qualifications obtained in a different Member State, to be undertaken by means of an assessment of equivalence which is subject to judicial review. FN31 Cited above, para.[16]. FN32 Thieffry ( 71/76): [1977] E.C.R. 765; [1977] 2 C.M.L.R. 373, paras [19] et seq., and Gebhard, cited above, para.[38]. AG86 The present case concerns recognition of a university degree obtained in the home State and of a period of practical training completed there. AG87 In this connection, it is appropriate to recall that the Court has consistently held that the exercise of the right of establishment guaranteed by Art.43 EC would be hindered "if the national rules in question took no account of the knowledge and qualifications already acquired by the person concerned in another Member State". [FN33] FN33 Vlassopoulou, cited above, para.[15]; and Haim ( C-319/92): [1994] E.C.R. I-425; [1994] 2 C.M.L.R. 169, para.[26]. AG88 From that it follows that "the competent national authorities must assess whether the knowledge acquired by the candidate, either during a course of study or by way of practical experience, is sufficient to show possession of knowledge which is lacking". [FN34] Thus, the host State has to enact and apply a suitable procedure. FN34 Fernández de Bobadilla, cited above, para.[33].

(a) Recognition of an academic qualification AG89 In this context, therefore, the first question to be considered is whether a "maîtrise en droit" obtained in France falls within the host State's obligation to *827 take matters into account. The specific point is not recognition of the academic title as such, but recognition of academic diplomas for professional purposes. AG90 Even though the "maîtrise en droit" obtained in France is not a diploma guaranteeing direct admission to the profession of lawyer, it is none the less a diploma that certifies certain knowledge and qualifications. AG91 It is clear from the consistent case law of the Court that account must be taken of the "nature and duration of the studies" [FN35] and of all "diplomas, certificates and other evidence of qualifications". [FN36] However, since the Court has not made any further distinction by reference to the nature of the evidence, and has not, for example, limited recognition to specified diplomas only, it must be assumed that a wide range of

evidence is to be recognised. FN35 Vlassopoulou, cited above, para.[17]; and Borrell and Others ( C- 104/91): [1992] E.C.R. I-3003, para.[12]; and see Heylens, cited above, para. [13]. FN36 Borrell, cited above, para.[11]; Hocsman ( C-238/98): [2000] E.C.R. I-6623; [2000] 3 C.M.L.R. 1025, para.[23]; and Dreessen ( C-31/00): [2002] E.C.R. I-663; [2002] 2 C.M.L.R. 62, para.[24]. AG92 The judgment in Kraus, [FN37] which concerned postgraduate studies, shows that host States are obliged to take into account even academic titles. FN37 Kraus ( C-19/92): [1993] E.C.R. I-1663, paras [20] et seq. AG93 It is for the national court and, as the case may be, the competent national authorities to assess, in the light of all the relevant documents and the foregoing considerations, whether Ms Morgenbesser's diploma is to be recognised as equivalent to a corresponding Italian diploma. [FN38] FN38 See Hocsman, cited above, para.[39].

(b) Recognition of practical training AG94 It must next be considered whether practical training completed in the State of origin is to be taken into account. AG95 It is clear from the consistent case law of the Court that professional experience acquired in the State of origin, [FN39] and even completed "practical training", [FN40] is to be taken into account. That applies also in a case such as the present, in which the person concerned has not completed all the training required by her State of origin to become a lawyer. FN39 Vlassopoulou, para.[21]; Haim, para.[28]; and Hocsman, para.[23], all cited above. FN40 Vlassopoulou, para.[17]; and Borrell, cited above, para.[12]; see also Heylens, para.[13], all cited above.

(c) Assessment of equivalence -- comparison AG96 However, in assessing equivalence (that is in comparing qualifications and practical experience), Member States are entitled to take into account objective differences as regards both the legal framework applicable in the home Member State for the profession in question and the profession's area of activity there. AG97 If that comparative examination results in the finding that the knowledge and qualifications certified by the foreign diploma correspond to those required by the national provisions, the Member State must recognise that diploma as fulfilling the requirements laid down by those provisions. If, on the other hand, the comparison reveals that the respective knowledge and qualifications correspond only partially, the host

Member State is entitled to require the person concerned to show that he has acquired the knowledge and qualifications which are lacking. *828 [FN41] FN41 Vlassopoulou, para.[19]; Borrell, para.[14]; Fernández de Bobadilla, para.[32]; and Hocsman, para.[36], all cited above. AG98 In any event, therefore, the Member States must take appropriate account at the substantive level of those foreign qualifications which at least partially correspond to domestic requirements, which themselves comply with Community law. AG99 They are not permitted to give an absolute, unconsidered refusal to undertake a substantive comparative assessment, on the basis of formal criteria such as, for example, the requirement to have a degree from an Italian university, as has happened in the present case. AG100 Accordingly, the host Member State has to put in place and apply a procedure that complies with these principles. If the procedure in force in the host State does not fulfil the requirements of Community law, then every competent authority, including for example the authority having jurisdiction in the present case over enrolment in the register of trainee lawyers, must itself consider whether a diploma an applicant has acquired in a different Member State, in conjunction with any professional experience he has, is to be regarded as equivalent to the requisite qualifications. [FN42] FN42 See Fernández de Bobadilla, cited above, para.[34]. AG101 It follows that a certificate of studies obtained in a different Member State need not be granted automatic recognition, but that a Community citizen is entitled to rely on it in a recognition procedure. AG102 In the light of that conclusion, it is not necessary to consider the interpretation of Arts 10 EC, 12 EC, 14 EC, 39 EC and 149 EC.

V -- Conclusion AG103 For the foregoing reasons, I propose that the Court should answer the question as follows: Article 1 of Council Directive 89/48 of December 21, 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration is to be interpreted as meaning that the activities of an Italian trainee lawyer are not to be regarded as a regulated profession. Article 43 EC is to be interpreted as meaning that in a case such as the present the competent authorities of the host State are to take into account all diplomas, certificates and other evidence of qualifications, as well as any relevant experience the person concerned has obtained in the State of origin, by comparing the professional learning and skills attested by that evidence and experience with the knowledge and qualifications required in the host State. JUDGMENT 1 By order of April 19, 2001, received at the Court on August 8, 2001, the Corte suprema

di cassazione (Supreme Court of Cassation) referred to the Court for a preliminary ruling under Art.234 EC a question on the interpretation of Arts 10 EC, 12 EC, 14 EC, 39 EC, 43 EC and 149 EC. 2 That question was raised in connection with an appeal by Ms Morgenbesser against the decision of the Consiglio Nazionale Forense (National Bar Council) *829 (Italy), confirming the decision of the Consiglio dell'Ordine degli avvocati di Genova (Bar Council of Genoa) to refuse her enrolment in the register of "praticanti". Legal background 3 Council Directive 89/48 of December 21, 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration [FN43] applies, according to Art.2 thereof, to any national of a Member State wishing to pursue a regulated profession in a host Member State in a self-employed capacity or as an employed person. FN43 [1989] O.J. L19/16. 4 According to Art.1 of Directive 89/48: "For the purposes of this Directive the following definitions shall apply: (a) diploma: any diploma, certificate or other evidence of formal qualifications or any set of such diplomas, certificates or other evidence: -- which has been awarded by a competent authority in a Member State, designated in accordance with its own laws, regulations or administrative provisions; *830 -- which shows that the holder has successfully completed a post-secondary course of at least three years' duration, or of an equivalent duration part-time, at a university or establishment of higher education or another establishment of similar level and, where appropriate, that he has successfully completed the professional training required in addition to the post-secondary course, and -- which shows that the holder has the professional qualifications required for the taking up or pursuit of a regulated profession in that Member State, provided that the education and training attested by the diploma, certificate or other evidence of formal qualifications were received mainly in the Community ... ... ... (c) a regulated profession: the regulated professional activity or range of activities which constitute this profession in a Member State; (d) regulated professional activity: a professional activity, in so far as the taking up or pursuit of such activity or one of its modes of pursuit in a Member State is subject, directly or indirectly by virtue of laws, regulations or administrative provisions, to the possession of a diploma. The following in particular shall constitute a mode of pursuit of a regulated professional activity: -- pursuit of an activity under a professional title, in so far as the use of such a title is reserved to the holders of a diploma governed by laws, regulations or administrative provisions, ...

... (f) adaptation period: the pursuit of a regulated profession in the host Member State under the responsibility of a qualified member of that profession, such period of supervised practice possibly being accompanied by further training. This period of supervised practice shall be the subject of an assessment. The detailed rules governing the adaptation period and its assessment as well as the status of a migrant person under supervision shall be laid down by the competent authority in the host Member States; (g) aptitude test: a test limited to the professional knowledge of the applicant, made by the competent authorities of the host Member State with the aim of assessing the ability of the applicant to pursue a regulated profession in that Member State. In order to permit this test to be carried out, the competent authorities shall draw up a list of subjects which, on the basis of a comparison of the education and training required in the Member State and that received by the applicant, are not covered by the diploma or other evidence of formal qualifications possessed by the applicant. The aptitude test must take account of the fact that the applicant is a qualified professional in the Member State of origin or the Member State from which he comes. It shall cover subjects to be selected from those on the list, knowledge of which is essential in order to be able to exercise the profession in the host Member State. The test may also include knowledge of the professional rules applicable to the activities in question in the host Member State. The detailed application of the aptitude test shall be determined by the competent authorities of that State with due regard to the rules of Community law. The status, in the host Member State, of the applicant who wishes to prepare himself for the aptitude test in that State shall be determined by the competent authorities in that State." 5 According to subpara.(a) of the first paragraph of Art.3 of Directive 89/48: "Where, in a host Member State, the taking up or pursuit of a regulated profession is subject to possession of a diploma, the competent authority may not, on the grounds of inadequate qualifications, refuse to authorise a national of a Member State to take up or pursue that profession on the same conditions as apply to its own nationals: (a) if the applicant holds the diploma required in another Member State for the taking up or pursuit of the profession in question in its territory, such diploma having been awarded in a Member State; ..." 6 Article 4 of Directive 89/48 authorises the host Member State to impose certain conditions on the taking up of a regulated profession. Thus, under *831 Art.4(1)(b), Art.3 of the directive does not preclude the host Member State from requiring the applicant "to complete an adaptation period not exceeding three years or take an aptitude test". 7 The second sub-subparagraph of Art.4(1)(b) provides further that, "for professions whose practice requires precise knowledge of national law and in respect of which the provision of advice and/or assistance concerning national law is an essential and constant aspect of the professional activity, the host Member State may [by way of derogation from this principle] stipulate either an adaptation period or an aptitude test". 8 On February 16, 1998, the European Parliament and the Council adopted Directive 98/5 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. [FN44]

FN44 [1998] O.J. L77/36. National legislation The basic provisions concerning the profession of avvocato 9 The basic provisions on enrolment and practice as a member of the bar in Italy are contained in Regio Decreto Legge No.1578, Ordinamento delle professioni di avvocato e procuratore (Royal Decree-Law No.1578 on the organisation of the professions of "avvocato" and "procuratore") of November 27, 1933. [FN45] (The status of procuratore was abolished as a result of Law No.27 of February 27, 1997.) FN45 GURI No.281 of December 5, 1933, p.5521; hereinafter "Decree-Law No.1578/33". 10 Points 1 and 4 to 6 of the first paragraph of Art.17 of Decree-Law No.1578/33 provide that, in order to be enrolled as a member of the bar, a person must: --be an Italian national; --hold a diploma in law ("laurea in giurisprudenza") issued or confirmed by a university in the Italian Republic; --after obtaining that diploma, have completed a period of practice ("periodo di pratica") of at least two consecutive years in the office of an "avvocato", involving attendance at hearings in civil and criminal proceedings, or, over the same period, have carried on the activities of legal representation and defence ("esercitato il patrocinio") before the courts; and --have passed the aptitude examination for pursuing the profession. 11 The nationality condition under the above provision is deemed to have been repealed, in respect of Community nationals, by Legge No.146, Disposizioni per l'adempimento di obblighi derivanti dall'appartenanza dell'Italia alla Comunità europea, legge comunitaria 1993 (Law No.146 laying down rules for fulfilment of the obligations arising from Italy's membership of the European Community, Community Law 1993), of February 22, 1994, [FN46] but the text of that provision has not been amended. FN46 Ordinary Supplement to GURI No.52 of March 4, 1994. 12 The period of practice is governed by Art.8 of Decree-Law No.1578/33. Law graduates who undertake that period ("praticanti") are registered in a special register held by the bar of the court for the area where they are resident. They are subject to the disciplinary authority of that bar. 13 *832 Under the second paragraph of Art.17 of Decree-Law No.1578/33, in order to be enrolled in the register of praticanti, it is also necessary to hold a legal diploma issued or confirmed by an Italian university. 14 In accordance with Art.8 of Decree-Law No.1578/33, praticanti are allowed, after one year's enrolment, within certain limits and "for a period not exceeding six years", to carry out legal representation and defence before the courts of the district of the bar council concerned. In criminal matters, they may be officially assigned as defence lawyers before

the same courts and, within the same limits, may exercise the functions of public prosecutor, and may lodge appeals either as defence lawyers or as representatives of the prosecution service. Praticanti who are permitted after one year to carry on those activities before the courts are called "praticanti-patrocinanti". The provisions transposing Directives 89/48 and 98/5 15 Legislative Decree No.115 of January 27, 1992 [FN47] is designed to transpose Directive 89/48. FN47 GURI No.40 of February 18, 1992, p.6; "Legislative Decree No.115/92". 16 Article 1 of that legislative decree, headed Recognition of professional training diplomas acquired in the European Community provides: "1. Under the conditions laid down by the provisions of this decree, recognition shall be granted in Italy to diplomas issued in a Member State of the European Community certifying professional training and the holding of which is made a precondition for the pursuit of a profession by the legislation of that State ... 2. Recognition shall be granted in favour of Community nationals for the purposes of pursuing in Italy, in a self-employed capacity or as an employed person, the profession corresponding to that for which they are qualified in the country which issued the diploma referred to in the preceding paragraph. 3. Diplomas shall be recognised if they certify that the applicant has successfully completed a post-secondary course of at least three years' duration ... at a university or establishment of higher education or another establishment of similar level." 17 Article 2 of Legislative Decree No.115/92 provides: "For the purposes of this decree, the following shall be considered to be professions: (a) activities the pursuit of which requires enrolment in a register or list maintained by an authority or public body, where enrolment is conditional upon completion of professional training satisfying the requirements of Art.1(3); ... (c) activities pursued with a professional title the use of which is reserved for persons who have completed professional training in accordance with the conditions laid down in Art.1(3)." 18 According to Art.5(1) of Legislative Decree No 115/92: *833 "Professional training certified by recognised diplomas and satisfying the criteria under Art.1(3) or Art.4 of this decree may consist of: (a) satisfactory completion of a post-secondary course of study; (b) a professional training period carried out under the direction of a trainer, and the satisfactory completion of which is marked by an examination; (c) a period of professional activity carried out under the direction of a qualified professional ..." 19 The second paragraph of Art.6 of Legislative Decree No 115/92 provides: 2 Recognition shall be subject to passing an aptitude test in the case of the professions ... of avvocato ..." 20 According to Art.8(1) and (2) of Legislative Decree No 115/92:

"1. The aptitude test shall consist of an examination designed to measure the professional and ethical knowledge of the applicant and to assess his capacity to pursue the profession, taking account of the fact that the applicant is a professional qualified in his State of origin or provenance. 2. The subjects covered by the examination shall be chosen by reference to their fundamental importance for pursuing the profession." 21 Article 9 of Legislative Decree No 115/92 provides: "Provisions and general directives for the application of Arts 5, 6, 7 and 8, by reference to the various professions and forms of professional training involved, shall be promulgated by decrees of the competent minister, within the meaning of Art.11, in co-operation with the Minister for Co-ordination of Community Policies and the Minister for Universities and Scientific and Technical Research, following the advice of the Consiglio di Stato." 22 Concerning the legal professions, Annex A to Legislative Decree No.115/92 provides that recognition of the title of avvocato is a matter for the Minister of Justice. 23 The procedure for recognition is governed by Art.12 of Legislative Decree No.115/92, according to which the application for recognition, accompanied by the documentation concerning the titles to be recognised, is to be submitted to the competent minister, who is to take a decision by decree within a period of four months from the submission of the application. 24 Legislative Decree No.96 of February 2, 2001 [FN48] transposed Directive 98/5. The provisions of that decree do not govern the status of praticanti and patrocinanti. FN48 Ordinary Supplement to GURI No.79 of April 4, 2001. The dispute in the main proceedings and the question referred 25 Ms Morgenbesser, a French national living in Italy, applied to the Bar Council of Genoa on October 27, 1999 for enrolment in the register of praticanti. In support of her application, she produced a diploma of maîtrise en droit obtained in France in *834 1996. In April 1998, after doing legal work for eight months in a Paris law office, she joined a firm of avvocati registered with the Genoa Bar, where she was continuing to practise at the time of the hearing before the Court. 26 On November 4, 1999, her application was rejected by the Bar Council of Genoa, which cited point 4 of the first paragraph of Art.17 of Decree-Law No.1578/33, making enrolment in the register of praticanti subject to the holding of a legal diploma issued or confirmed by an Italian university. 27 Ms Morgenbesser appealed against that decision to the Consiglio Nazionale Forense, which, by decision of May 12, 2000, dismissed her appeal on the ground that she was not qualified to carry on the profession of avocat in France and did not hold the necessary professional qualification for enrolment in the register of praticanti in Italy. 28 Ms Morgenbesser then applied to the Università degli Studi of Genoa for recognition of her maîtrise en droit. The Consiglio di Corso di Laurea in Giurisprudenza (law faculty) of that university made such recognition subject to her completing a shortened course of two years, passing 13 examinations, and writing a final thesis. 29 Ms Morgenbesser appealed against that latter decision before the Tribunale Amministrativo Regionale della Liguria (Italy), the judgment of which, upholding that

appeal, was itself challenged before the Consiglio di Stato (Italy). 30 In the meantime, Ms Morgenbesser appealed on a point of law against the decision of the Consiglio Nazionale Forense of May 12, 2000. 31 On that appeal, the Corte suprema di cassazione decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling: "Irrespective of recognition and confirmation of equivalence, can a diploma issued to a Community national in a Member State (in this case, France) automatically be relied upon for the purposes [of obtaining enrolment in the register of persons undertaking the necessary period of practice for admission to the bar] in another Member State (in this case Italy), by virtue of the rules of the EC Treaty ... on freedom of establishment and the freedom to provide services ( Arts 10 EC, 12 EC, 14 EC, 39 EC and 43 EC ...) and by virtue of Art.149 EC ...?" The question referred 32 The order for reference shows that Arts 10 EC, 12 EC, 14 EC, 39 EC, 43 EC and 149 EC are mentioned in the question referred only because they were cited by Ms Morgenbesser. 33 It is, however, clear from that order that the question referred by the Corte suprema di cassazione essentially asks whether Community law precludes the authorities of a Member State from refusing to enrol the holder of a legal diploma obtained in another Member State in the register of persons undertaking the necessary period of practice for admission to the bar solely on the ground that it is not a legal diploma issued or confirmed by a university of the first State. 34 According to its own wording, that question is asked [i]rrespective of recognition and confirmation of equivalence. Indeed, the application for recognition of the maîtrise en droit diploma obtained by Ms Morgenbesser in France *835 forms the subject-matter of another dispute, pending before the Consiglio di Stato. [FN49] FN49 See paras [28] and [29] of this judgment. Observations submitted to the Court 35 Ms Morgenbesser argues that the activity of a praticante, and more particularly of a praticante-patrocinante, falls within the definition of a regulated profession within the meaning of Directive 89/48, firstly because those activities include the independent management of current cases, advice to clients and, in certain instances, their representation and defence, and, secondly, because the professional rules of the bar apply. 36 In her submission, the requirement for prior recognition of the diploma by an Italian university, laid down in point 4 of the first paragraph of Art.17 of Decree-Law No.1578/33, infringes Directive 89/48. She argues that that directive makes it sufficient for her to present a diploma obtained in a Member State in order to pursue a profession in another Member State, since diplomas which fulfil the conditions laid down by the directive are automatically equivalent. 37 Should Directive 89/48 not apply, Ms Morgenbesser argues, citing Case C-234/97, [FN50] that Art.43 EC requires the authority responsible for handling applications for

access to the profession, in this case the Bar Council of Genoa, to make an assessment and comparative examination of the applicant's knowledge by reference exclusively to her diploma of maîtrise en droit. FN50 Fernández de Bobadilla : [1999] E.C.R. I-4773; [1999] 3 C.M.L.R. 151. 38 The Bar Council of Genoa argues that praticanti do not pursue either a regulated profession within the meaning of Directive 89/48 or an activity within the meaning of Art.43 EC et seq., but are in a simple training relationship. 39 The Danish Government takes the view that Directive 89/48 does not apply to the main proceedings in this case, since the necessary training for access to the profession has not been completed. The principles set out by the Court of Justice in Case C-340/89 [FN51] do not require automatic recognition of the foreign diploma, but only a comparative examination of the knowledge and qualifications certified by the diploma obtained in another Member State. However, a period of practical training carried out in another Member State might be recognised under Art.5 of Directive 89/43. FN51 Vlassopoulou: [1991] E.C.R. I-2357; [1993] 2 C.M.L.R. 221. 40 The Italian Government argues that the dispute in the main proceedings concerns the recognition of academic qualifications, which should be distinguished from the recognition of professional qualifications. 41 The Commission takes the view that only activities which are habitually pursued in a long-term and definitive manner can be regarded as a regulated profession within the meaning of Directive 89/48. The Commission doubts whether the activity of a praticante, at issue in the main proceedings, can fall within that concept. 42 Should Directive 89/48 not apply, the general principles for interpreting Art.43 EC, set out in Vlassopoulou, [FN52] and in Case C-55/94, [FN53] might preclude national *836 legislation which makes enrolment in the register of persons pursuing a period of practice conditional on a university of the Member State where the applicant intends to undertake that period recognising a legal diploma issued in another Member State, where that recognition requires the person concerned to complete a shortened course, pass 13 examinations and write a final thesis. Moreover, Ms Morgenbesser did not have the opportunity to argue that, at the time when she submitted her application for enrolment in the register of praticanti, she had already worked full-time in Italian law firms. FN52 Cited above. FN53 Gebhard : [1995] E.C.R. I-4165; [1996] 1 C.M.L.R. 603. The Court's reply 43 In order to reply to the question referred, it must first be examined whether a person such as the applicant in the main proceedings can benefit from the provisions of Directive 98/5 concerning the profession of lawyer or from those of Directive 89/48 on the mutual recognition of diplomas. If those directives do not apply, it will then be necessary to

examine whether Arts 39 EC and 43 EC, as interpreted by the Court of Justice, particularly in its judgment in Vlassopoulou, [FN54] can be relied on in a situation such as that at issue in the main proceedings. FN54 Cited above 44 It should be noted at the outset, having regard to the wording of the question referred, that neither Directive 98/5, nor Directive 89/48, nor Arts 39 EC and 43 EC require recognition of a diploma to be purely automatic. 45 Directive 98/5 concerns only lawyers fully qualified as such in their Member State of origin, and therefore does not apply to persons who have not yet acquired the professional qualification necessary to practise the profession of lawyer. It is therefore not applicable in a case such as that at issue in the main proceedings. 46 According to Art.2 of Directive 89/48, that directive applies to any national of a Member State wishing to pursue a regulated profession in a host Member State in a self-employed capacity or as an employed person. 47 Ms Morgenbesser argues that she is not claiming access to the profession of avvocato as such, but, at this stage, to that of praticante. She maintains that the activities of a praticante fall within the definition of a regulated profession within the meaning of Directive 89/48. Since, she argues, the only precondition for access to that profession is a legal diploma, she can rely on her maîtrise en droit in order to obtain that access. She points out that a significant number of praticanti and praticanti-patrocinanti who have not passed the final examination continue to carry on their legal activities without being removed from the register of praticanti. 48 According to the definition given in Art.1(c) of Directive 89/48, a regulated profession is the regulated professional activity or range of activities which constitute this profession in a Member State and, according to the definition appearing in Art.1(d), a regulated professional activity is a professional activity, in so far as the taking up or pursuit of such activity or one of its modes of pursuit in a Member State is subject, directly or indirectly by virtue of laws, regulations or administrative provisions, to the possession of a diploma. 49 A profession must therefore be regarded as regulated, within the meaning of Directive 89/48, where access to, or pursuit of, the professional activity in question is governed by laws, regulations or administrative provisions that create a system *837 under which that professional activity is expressly reserved for those who fulfil certain conditions and access to it is prohibited to those who do not fulfil them. [FN55] FN55 Aranitis ( C-164/94): [1996] E.C.R. I-135, para.[19]; and Fernández de Bobadilla, cited above, para.[17]. 50 Access to the activities of praticante and praticante-patrocinante which are at issue in the main proceedings, and the pursuit of those activities, are governed by legal provisions establishing a system which reserves those activities for persons who fulfil certain conditions and prohibits access to persons who do not fulfil them. 51 However, it follows from those provisions that the pursuit of those activities is designed to constitute the practical part of the training necessary for access to the profession of "avvocato" If, at the end of those six years, the praticante-patrocinante does

not pass the examination prescribed by point 6 of the first paragraph of Art.17 of Decree-Law No 1578/33, he will no longer be authorised, under those provisions, to pursue the activities which he carried on in that capacity. 52 In those circumstances, the activity of praticante-patrocinante cannot be described as a "regulated profession" within the meaning of Directive 89/48 separate from that of "avvocato". 53 The fact that a significant number of praticanti-patrocinanti who have not passed the final examination continue to exercise legal activities and are not removed from the register of praticanti cannot have the effect of qualifying the activities of praticante or patrocinante, considered in isolation, as a regulated profession within the meaning of Directive 89/48. 54 It also appears that, since Ms Morgenbesser has not obtained in France the certificat d'aptitude à la profession d'avocat (CAPA), she does not hold the professional qualifications for access to the status of "stagiaire" at the bar of that Member State. In those circumstances, the maîtrise en droit which she holds does not, in itself, constitute a "diploma, certificate or other evidence of formal qualifications" within the meaning of Art.1(a) of Directive 89/48. 55 It follows that Ms Morgenbesser is not able to rely on Directive 89/48. 56 Having regard to the above, it needs to be examined whether Arts 39 EC and 43 EC apply in the circumstances of the case in the main proceedings. Only if those provisions do not apply will it be necessary to examine the other provisions of the Treaty mentioned by the referring court in its question. 57 According to the case law the principles of which were set out in Vlassopoulou, the authorities of a Member State, when considering a request by a national of another Member State for authorisation to exercise a regulated profession, must take into consideration the professional qualification of the person concerned by making a comparison between the qualifications certified by his diplomas, certificates and other formal qualifications and by his relevant professional experience and the professional qualifications required by the national rules for the exercise of the profession in question. [FN56] FN56 See, most recently, Commission v Spain ( C-232/99): [2002] E.C.R. I-4235, para.[21]. 58 That obligation extends to all diplomas, certificates and other evidence of formal qualifications as well as to the relevant experience of the person concerned, irrespective of whether they were acquired in a Member State or in a third country, *838 and it does not cease to exist as a result of the adoption of directives on the mutual recognition of diplomas. [FN57] FN57 Hocsman ( C-238/98): [2000] E.C.R. I-6623; [2000] 3 C.M.L.R. 1025, paras [23] and [31]; Commission v Spain, cited above, para.[22]. 59 According to the Bar Council of Genoa, the activity of praticante is a training activity, to which the provisions of Arts 39 EC and 43 EC do not apply. 60 However, the period of practice at issue in the main proceedings comprises the pursuit

of activities, normally remunerated by the client or by the firm for which the praticante works, with a view to access to a regulated profession to which Art.43 EC applies. In so far as the remuneration of the praticante takes the form of a salary, Art.39 EC may also apply. 61 Both Art.39 EC and Art.43 EC may therefore apply to a situation such as that in the main proceedings. However, the analysis does not differ according to whether it is freedom of movement for workers or the freedom of establishment which is relied upon in opposing the refusal, on the part of the Bar Council of Genoa acting in its capacity as the competent authority for enrolling praticanti on the register, to take the legal diploma obtained in another Member State and the professional experience acquired into account for the purposes of enrolment. 62 As the Court has already held, the exercise of the right of establishment is hindered if national rules fail to take account of learning, skills and qualifications already acquired by the person concerned in another Member State, so that the competent national authorities must measure whether such factors sufficiently demonstrate that missing learning and skills have been acquired. [FN58] FN58 Vlassopoulou, paras [15] and [20]; Fernández de Bobadilla, para. [33], both cited above. 63 In that context, contrary to what the Italian Government claims, a case such as that at issue in the main proceedings is not concerned with a simple question of recognising academic qualifications. 64 It is true that the recognition, for academic and civil purposes, of the equivalence of a diploma obtained in one Member State may be relevant, and even decisive, for enrolment with the bar of another Member State. [FN59] FN59 Thieffry ( 71/76): [1977] E.C.R. 765; [1977] 2 C.M.L.R. 373. 65 It does not follow, however, that, for the purposes of the comparative examination which the competent authority of the host Member State must undertake in circumstances such as those in the main proceedings, it is necessary to examine the academic equivalence of the diploma relied upon by the person concerned in relation to the diploma normally required of nationals of that State. 66 The taking into account of the diploma of the person concerned, such as the maîtrise en droit granted by a French university, must therefore be carried out in the context of the assessment of the whole of the training, academic and professional, which that person is able to demonstrate. 67 It is therefore the duty of the competent authority to examine, in accordance with the principles set out by the Court of Justice in Vlassopoulou and Fernández de Bobadilla, whether, and to what extent, the knowledge certified by the diploma granted in another Member State and the qualifications or professional experience obtained there, together with the experience obtained in the Member State in which the candidate seeks enrolment, must be regarded as satisfying, even partially, the conditions required for access to the activity concerned. 68 *839 That examination procedure must enable the authorities of the host Member

State to assure themselves, on an objective basis, that the foreign diploma certifies that its holder has knowledge and qualifications which are, if not identical, at least equivalent to those certified by the national diploma. That assessment of the equivalence of the foreign diploma must be carried out exclusively in the light of the level of knowledge and qualifications which its holder can be assumed to possess having regard to that diploma, having regard to the nature and duration of the studies and practical training to which the diploma relates. [FN60] FN60 Heylens and Others ( 222/86): [1987] E.C.R. 4097; [1989] 1 C.M.L.R. 901, para.[13]; Vlassopoulou, cited above, para.[17]. 69 In the course of that examination, a Member State may, however, take into consideration objective differences relating to both the legal framework of the profession in question in the Member State of origin and to its field of activity. In the case of the profession of lawyer, a Member State may therefore carry out a comparative examination of diplomas, taking account of the differences identified between the national legal systems concerned. [FN61] FN61 Vlassopoulou, cited above, para.[18]. 70 If that comparative examination of diplomas results in the finding that the knowledge and qualifications certified by the foreign diploma correspond to those required by the national provisions, the Member State must recognise that diploma as fulfilling the requirements laid down by its national provisions. If, on the other hand, the comparison reveals that the knowledge and qualifications certified by the foreign diploma and those required by the national provisions correspond only partially, the host Member State is entitled to require the person concerned to show that he has acquired the knowledge and qualifications which are lacking. [FN62] FN62 Ibid., para.[19]. 71 By the same token, the competent national authorities must measure whether the learning and skills acquired in the host Member State, either through a course of study or by way of practical experience, sufficiently demonstrate that the missing knowledge and qualifications have in the meantime been acquired. [FN63] FN63 Ibid., para.[20]. 72 In the light of the above, the answer to the referring court must be that Community law precludes the authorities of a Member State from refusing to enrol the holder of a legal diploma obtained in another Member State in the register of persons undertaking the necessary period of practice for admission to the bar solely on the ground that it is not a legal diploma issued, confirmed or recognised as equivalent by a university of the first State. Costs

73 The costs incurred by the Italian and Danish Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court. R1 Order On those grounds, THE COURT (Fifth CHAMBER), in answer to the question referred to it by the Corte suprema di cassazione by order of April 19, 2001, *840 Hereby Rules:Community law precludes the authorities of a Member State from refusing to enrol the holder of a legal diploma obtained in another Member State in the register of persons undertaking the necessary period of practice for admission to the bar solely on the ground that it is not a legal diploma issued, confirmed or recognised as equivalent by a university of the first State.

(c) Sweet & Maxwell Limited [2004] 1 C.M.L.R. 24