The Gazette 1974

power, and its responsible exercise would be controlled V guarantees, and they would normally be nominated fancially, the exception in Article 55 only relates to hose specified activities and an official function would n °nnally imply that the holder possesses the nationality concerned. But, as regards lawyers, to insist upon nati- onality as a condition of admission is in reality to fear Or oign competition. *he Government of Luxembourg agrees with the er narks of the Belgian Government. In Luxembourg, a lawyer would inevitably participate in the judicial Un ction, being by virtue of his office called upon to complete the judicial process and he cannot refuse it. 1 must be noted that the professional training of a avv Ver is practically identical to that of a Judge. The a Wyer, like any civil servant, must swear to be faithful 0 the Constitution. The lawyer, while nominally exer- ClSln g a liberal profession, in effect will take an inti- mate part in judicial power. The Irish Government considers that the exception contemplated by Article 55 would only apply to law- yers directly connected with official authority, and not 0 the legal profession as a whole. The British Govern- 171 ent takes the same view. The European Commission considers that the notion fa official authority should be defined as an element of Community Law and particularly from the principles of Treaty. All exceptions to the fundamental human tights must receive a very strict interpretation and the 'Nterpretation favouring fundamental human rights fa°uld be preferred. The only real effect of Article 55 is o ensure that foreign lawyers, benefitting from freedom fa es tablishment, would try to exercise in another coun- ty an invalid official function. The notion of exercise fa a n official function can thus be defined as conferring Pavers of restraint against persons and goods not under- a ken by a lawyer. The lawyer exercises a liberal profes- ° n characterised by independence towards official Hthority. In so far as a lawyer undertakes the defence , a person, he does so as a legal technician. The fact ^ a t he belongs to a professional association, or that I? has to take an oath of loyalty, does not confer upon 'm any official authority. Most Governments and Bar ssociations do allow foreign lawyers to exercise limited u nctions in their Courts. • the legal profession an exception must be made t , fae application of Chapter Two of the Treaty only to ,° s e who exercise an official function, if this function o | Wa y s could be dissociated from the normal exercise l he profession. ^cond Question t Article 52 deemed to be a law directly applicable 0 a H Member States? According to the applicant, Article 52 would be a j ^ 1 " precise and unconditional direction which would directly applicable in the Member States since the a d of the transition period. The only problem for the applicant is one of nationality. If the Treaty were to r md from a given date a discrimination founded upon a tionality, this would be directly effective then. The ^ « i o n should consequently be answered in the affir- c Uie Belgian Government as defendant sustains the j Ntrary view. Article 52 cannot be construed by itself; c> ls not authorised to regulate the details of the prin- P' e of establishment. It would be unreasonable to

construe Article 52 as not including nationality amongst the exceptions to the principles of freedom of estab- lishment. The German Government, adopting the same view, points out that if the appellant's contention were sus- tained, the Member States would not, according to Art. 52, once the period of transition had expired, have the possibility to issue their own regulations. As long as no di$ectives have been issued, the Member States have the right to subordinate the right of establishment within their territory, to the implementation of conditions of admission to a profession regulated by their internal law. The Luxembourg Government agrees with the Bel- gian Government. The Irish Government does not consider Article 52 to be directly applicable in the circumstances. In order to apply Article 52 directly, it would be necessary to issue directives under Article 54 and these would alleg- edly leave to the Member States the form and means of putting the Directive into force. The Commission of the European Communities sub- mits that Article 52 is as clear as Article 53, which the Court has already made directly applicable to all Mem- ber States. Article 52 is a law to be applied without conditions. The Council of Ministers should arrange a programme which would fit in respect of each activity, general conditions byq which the principle of the actual realisation of freedom of establishment would be under- taken. Once the Council had adopted these principles, the Community institutions would no longer be in a posi- tion to intervene. The Council would have to issue directives to implement the programme, but once these became law, there would be no obstacle to Article 52 being deemed to apply directly to the Member States. The free circulation of people is a fundamental prin- ciple of the Common Market. The following answer is proposed, Article 52 of the Treaty of Rome, would produce, from the end of the period of transition, direct effects in the relations between Member States and their nationals and would enforce for individuals rights which national Courts would have to safeguard, as regards the prohibition of discrimination founded on nationality. (1) First Question. The Belgian Bar submits that admission in the various Member States of foreigners to the profession of lawyer can only be determined by legislation passed by the National Parliament. As a lawyer alone could assume the defence of accused inter alia, it would be impossible to associate the different activities of the legal profes- sion with the principle of freedom of establishment. (2) Second Question. The British and Irish Governments consider that Art. 52 is not directly applicable to Member States, as its execution would require additional laws in order that the principle of freedom of establishment should be realised in a practical way. Law Stated (The Court has issued no less than 56 conclusions of which the following are the most important. All conclu- sions are preceded by the word "Whereas .") Oral Procedure

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