The Gazette 1974

Interpretation of Article 55 (1) . (10) AND WHEREAS in interpreting the meaning ot the words in Article 55 (1) "activities which in that State are connected, even occasionally, with the exer- cise of official authority" the exception mentioned r' 1 Article 55 is to be interpreted as : Firstly the onty activities inherent in the legal profession which afC connected with the exercise of official authority oT Secondly if the whole legal profession is to be deemed an exception because it is connected with that exercise- (11) AND WHEREAS the Belgian Bar and Lu x em- bourg Governments consider that the legal profession would have to conform to the Treaty as regards the rules relating to the right of establishment because it 15 connected organically with the function of the civi service relating to justice, and that such activities would make a lawyer an indispensable aid to justice. (12) AND WHEREAS the German, Belgian, British, Irish and Dutch Governments, as well as the Commit sion, consider that the exception stated in Art. 55 re- lates exclusively to the internal rules of the different professions concerned, which may be connected tively with the exercise of official authority, provide they are ntt associated with this exercise in the norm 3 way. (13) AND WHEREAS the fact that, within the Treaty the principles relating to freedom of establish- ment and to national remuneration are deemed essen- tial and therefore the exceptions contemplated by Ad- 55 (1) could not receive a meaning which would sui* pass the aim to which such an exception was to be made, and therfore that Article 55 (1) satisfies this necessity by limiting the exclusion of nationals to those activities, which taken by themselves, constitute only a direct and specific connection with public authority- (14) AND WHEREAS it is contemplated that aI1 exception foreseen by Article 55 may apply to a profes- sion if the effect of freeing a profession would imp°f c upon the Member State the obligation to admit even i' 1 a temporary way, some non-nationals to State function- connected with public authority. (15) AND WHEREAS such a contemplated exten- sion would be inadmissible, as within the exercise of a11 independent profession, the activities deemed to be connected with official authority would constitute a1 ' element which could be detached from the profession activity of the lawyer taken as a whole. . (16) AND WHEREAS the eventual application restrictions to the principle of freedom of establishment foreshadowed by Article 55 should be considered sep af ' ately by each Member State, having regard to the national laws applicable to the organisation and exer- cise of the particular profession—and that nevertheless the common character of the Community must also be taken into account as specifying the limits set out b) Article 55 to the exceptions allowed to the principle 0 freedom of establishment so that the useful effect of th c Treaty resulting from unilateral laws passed by Membe' States would be nullified. (17) AND WHEREAS, provisions in the legal profes- sions which would comprise regular contacts with the Courts do not constitute as such activities connected with the exercise of official authority—and that th e most typical activities of the lawyers' profession, such as consultation and legal aid to clients, as well a? appearing for and defending parties in Courts, are deemed to be activities connected with the exercise ° f public authority, even if the presence or aid of the 166

Interpretation of Article 52 (1) WHEREAS the Belgian Conseil d'Etat asks if Article 52 is, at the end of the period of transition, a law which is directly applicable to Member States. (2) AND WHEREAS the Belgian, Luxembourg, the British and Irish Governments have submitted that such an interpretation could not be given, because it would require additional legislation to put it into force, which implies a general programme to be subsequently implemented by directives, and that a national Judge is precluded from interpreting Community Law directly. (3) AND WHEREAS the German and Netherlands Governments, following the judgment in Lutticke (June 1966), consider that the rules imposing upon Member States an obligation which they must execute within a prescribed time become automatically directly appli- cable if this obligation has not been fulfilled within that time, which implies that at the end of the transi- tion period, Article 52, is a law which is itself complete and juridically perfect. (4) AND WHEREAS, if such an interpretation is accepted, the general programmes and the directives issued pursuant thereto would only be important dur- ing the period of transition, as the principle of freedom of establishment would be fully realised once this period had ceased. (5) AND WHEREAS the Commission considers that the principle of freedom of establishment could at least be applied in full at the end of the period of transition in relation to certain matters, such as discrimination imposed upon the ground of nationality as being a violation of Article 7 of the Treaty but that Article 54 foreshadows a general programme to be followed by directives to bring Article 52 into full effect. (6) AND WHEREAS the principle of freedom of establishment is destined to accomplish two functions : First, to eliminate during the transition period, the obstacles which would impede the realisation of free- dom of establishment; and the Second, to introduce in the national legislation of Member States laws destined to facilitate the effective exercise of that freedom and that the effect of Article 52 should be determined within the ambit of collaboration between the national competent administrations and the adaptation of prac- tical administrative procedures foreshadowed by Article 54. (7) AND WHEREAS the rules of national remuner- ation, being one of the fundamental juridical rules of the Community, can be invoked directly by the nati- onals of all Member States, and that thus Article 52 prescribes an obligation leading to a definite result, whose obligation should be facilitated by the execution of progressive measures, which interpretation thus con- forms with Article 8 (7) of the Treaty, which states that the transition period constitutes the extreme limit for the coming into operation of the rules foreshadowed by the Treaty. (8) AND WHEREAS consequently, after the expir- ation of the transition period the directives under Art. 54 relating to the right of establishment have become superfluous in order to implement regulations in regard to national remuneration, as the Treaty itself has deter- mined that they would be directly applicable. (9) AND WHEREAS in view of the aforementioned argument Article 52 of the Treaty is a law directly applicable within the Member States at the end of the transition period notwithstanding the absence of direc- tives relating thereto.