Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 19 December 2018(1)

Case C‑431/17

Monachos Eirinaios, kata kosmon Antonios Giakoumakis tou Emmanouil

v

Dikigorikos Syllogos Athinon

(Request for a preliminary ruling from the Symvoulio tis Epikrateias (Council of State, Greece))

(Directive 98/5/EC — Article 3 — Article 6 — Registration of a monk as a lawyer in a Member State other than that in which he obtained his professional qualification — National rules precluding registration)

1.        Can a man serve two masters? When one of those masters is God, a Christian can find initial guidance in the Gospels: ‘no man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other. Ye cannot serve God and Mammon’. (2) (The impeccable legal exchange between Jesus of Nazareth and a lawyer preserved in the parable of the Good Samaritan clearly demonstrates, however, that it is perfectly possible to serve God and be a member of the legal profession. (3)) Where a monk wishes to register as a lawyer with a bar association of a Member State other than that where he acquired his professional title and serve thus both justice and God, it is also necessary to look to Directive 98/5/EC. (4)

2.        By this request for a preliminary ruling the Symvoulio tis Epikrateias (Council of State, Greece; ‘the referring court’) asks whether it is compatible with Directive 98/5 for the competent authorities to refuse to register Monachos Eirinaios, (5) a monk in a monastery in Greece, as a lawyer practising under his home-country professional title on the ground that monks simply cannot, under national law, be entered in the registers of bar associations. That raises the question of how to reconcile the provisions of Directive 98/5 concerning registration of lawyers practising under their home-country professional title, which introduce mandatory obligations, with those concerning the rules of professional conduct applicable to such lawyers, which leave the Member States a wide discretion. The Court’s interpretation will need to ensure that the directive is construed in a consistent and cohesive manner.

 Legal framework

 EU law

 Directive 98/5

3.        Recital 1 of Directive 98/5 highlights the importance of the possibility, for nationals of the Member States, of practising a profession, whether in a self-employed or salaried capacity, in a Member State other than that in which they obtained their professional qualifications. Recitals 2 and 3 explain that the directive offers an alternative means to Directive 89/48 for gaining admission to the profession of lawyer in a host Member State. (6)

4.        According to recital 5, action ‘is justified at Community level not only because, compared with the general system for the recognition of diplomas, it provides lawyers with an easier means whereby they can integrate into the profession in a host Member State, but also because, by enabling lawyers to practise under their home-country professional titles on a permanent basis in a host Member State, it meets the needs of consumers of legal services who, owing to the increasing trade flows resulting, in particular, from the internal market, seek advice when carrying out cross-border transactions in which international law, Community law and domestic laws often overlap’.

5.        Recital 6 explains that action is also justified ‘because only a few Member States already permit in their territory the pursuit of activities of lawyers, otherwise than by way of provision of services, by lawyers from other Member States practising under their home-country professional titles; … however, in the Member States where this possibility exists, the practical details concerning, for example, the area of activity and the obligation to register with the competent authorities differ considerably; … such a diversity of situations leads to inequalities and distortions in competition between lawyers from the Member States and constitutes an obstacle to freedom of movement; … only a directive laying down the conditions governing practice of the profession, otherwise than by way of provision of services, by lawyers practising under their home-country professional titles is capable of resolving these difficulties and of affording the same opportunities to lawyers and consumers of legal services in all Member States’.

6.        Recital 7 indicates that the directive does not lay down any rules concerning purely domestic situations, and that where it does affect national rules regulating the legal profession it does so no more than is necessary to achieve its purpose effectively. The directive is without prejudice in particular to national legislation governing access to and practice of the profession of lawyer under the professional title used in the host Member State.

7.        Recital 8 explains that ‘lawyers covered by the Directive should be required to register with the competent authority in the host Member State in order that that authority may ensure that they comply with the rules of professional conduct in force in that State; … the effect of such registration as regards the jurisdictions in which, and the levels and types of court before which, lawyers may practise is determined by the law applicable to lawyers in the host Member State’.

8.        Recital 9 indicates that ‘lawyers who are not integrated into the profession in the host Member State should practise in that State under their home-country professional titles so as to ensure that consumers are properly informed and to distinguish between such lawyers and lawyers from the host Member State practising under the professional title used there’.

9.        Article 1(1) of the directive defines its purpose as being to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the professional qualification was obtained. Article 1(2) defines a ‘lawyer’ as ‘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: … Greece: Δικηγόρος [Dikigoros] … Cyprus: Δικηγόρος [Dikigoros]’.

10.      Article 2 establishes any lawyer’s right to pursue the professional activities listed in detail in Article 5 on a permanent basis under his home-country professional title in another Member State.

11.      In accordance with Article 3:

‘1. A lawyer who wishes to practise in a Member State other than that in which he obtained his professional qualification shall register with the competent authority in that State.

2. The competent authority in the host Member State shall register the lawyer upon presentation of a certificate attesting to his registration with the competent authority in the home Member State. It may require that, when presented by the competent authority of the home Member State, the certificate be not more than three months old. It shall inform the competent authority in the home Member State of the registration.’

12.      Article 4 provides that a lawyer practising in a host Member State under his home-country professional title ‘shall do so under that title, which must be expressed in the official language or one of the official languages of his home Member State, in an intelligible manner and in such a way as to avoid confusion with the professional title of the host Member State’.

13.      Article 5(1) defines the area of activity of a lawyer practising under his home-country professional title as ‘the same professional activities as a lawyer practising under the relevant professional title used in the host Member State’. He 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’.

14.      Article 6(1) provides that ‘irrespective of the rules of professional conduct to which he is subject in his home Member State, a lawyer practising under his home-country professional title shall be subject to the same rules of professional conduct as lawyers practising under the relevant professional title of the host Member State in respect of all the activities he pursues in its territory’. In accordance with Article 6(3), the host Member State ‘may require a lawyer practising under his home-country professional title either to take out professional indemnity insurance or to become a member of a professional guarantee fund in accordance with the rules which that State lays down for professional activities pursued in its territory’.

15.      Article 7 of the directive concerns disciplinary proceedings in the event that a lawyer practising under his home-country professional title fails to fulfil the obligations in force in the host Member State. In accordance with Article 7(1), ‘the rules of procedure, penalties and remedies provided for in the host Member State shall apply’. Article 7(2) to (5) provides that:

‘2. Before initiating disciplinary proceedings against a lawyer practising under his home-country professional title, the competent authority in the host Member State shall inform the competent authority in the home Member State as soon as possible, furnishing it with all the relevant details.

[That applies] mutatis mutandis where disciplinary proceedings are initiated by the competent authority of the home Member State …

3. Without prejudice to the decision-making power of the competent authority in the host Member State, that authority shall cooperate throughout the disciplinary proceedings with the competent authority in the home Member State. …

4. The competent authority in the home Member State shall decide what action to take, under its own procedural and substantive rules, in the light of a decision of the competent authority in the host Member State concerning a lawyer practising under his home-country professional title.

5. Although it is not a prerequisite for the decision of the competent authority in the host Member State, the temporary or permanent withdrawal by the competent authority in the home Member State of the authorisation to practise the profession shall automatically lead to the lawyer concerned being temporarily or permanently prohibited from practising under his home-country professional title in the host Member State.’

16.      Article 9 provides that ‘decisions not to effect the registration referred to in Article 3 or to cancel such registration and decisions imposing disciplinary measures shall state the reasons on which they are based’. A remedy before a court or tribunal must be available against such decisions.

 National law

 Presidential Decree 152/2000

17.      Directive 98/5 was transposed into Greek law by Presidential Decree 152/2000 ‘facilitating practice of the profession of lawyer on a permanent basis in Greece by lawyers who obtained their professional qualification in another Member State of the European Union’ (Proedriko Diatagma 152/2000, Diefkolynsi tis monimis askisis tou dikigorikoy epaggelmatos stin Ellada apo dikigorous pou apektisan ton epaggelmatiko tous titlo se allo kratos-melos tis EE ‘the Presidential Decree’).

18.      Article 5(1) provides that to practise as a lawyer in Greece, the person concerned must be registered with the bar association where he will pursue his professional activities and must retain an office in that geographical area. Article 5(2) states that the board of administration of the aforesaid bar association decides upon an application for registration after submission of the following certificates: (i) an official document proving nationality of a Member State; (ii) a certificate indicating whether the applicant has a criminal record; and (iii) a certificate of registration from the competent authority of the home State which granted the professional qualification or another competent authority of the home State.

19.      In addition, Article 8(1) provides that ‘irrespective of the rules of professional conduct to which he is subject in his home State, the lawyer shall be subject to the same rules of professional conduct as other lawyers who are members of the relevant bar association, in respect of all the activities he pursues in Greece. In particular, he shall be subject to … those rules that govern the carrying out of a lawyer’s functions in Greece, in particular those in respect of incompatibility and the carrying out of activities alien to those functions, of professional confidentiality, of professional ethics, of advertising, of professional dignity and of the proper carrying out of those functions’.

 Lawyers’ Code

20.      Article 1 of Law 4194/2013 (Kodikas dikigoron, ‘the Lawyers’ Code’) provides that a lawyer is a public officer whose functions constitute a cornerstone of upholding the rule of law. When performing his duties a lawyer is to handle his cases according to his professional judgment and he is not to be made subject to recommendations and instructions contrary to the law or incompatible with the interests of his client. (7)

21.      Article 6 is entitled ‘conditions to become a lawyer — impediments’ It lays down two positive conditions in order to be a lawyer, namely (i) holding Greek nationality or the nationality of another Member State or of an EEA State and (ii) holding a law degree, together with four impediments, which include not being a clergyman or a monk.

22.      Article 7(1) is entitled ‘ipso jure loss of the status of a lawyer’. It provides, inter alia, that a person who is a clergyman or a monk or who is appointed to or holds any paid post under a contract entailing a relationship as an employee or a public official in the service of a legal person governed by public law shall lose ipso jure the status of lawyer and be removed from the register of the bar association of which he is a member. (8) A lawyer who falls within the scope of Article 7(1) is obliged to make a declaration to the bar association where he is registered and to resign. (9)

23.      Article 23 provides that a lawyer is required to have a seat and office in the geographical area of the court of first instance where he is designated as a lawyer. Article 82 provides that, save for a small number of listed exceptions, a lawyer is not permitted to provide his services without remuneration.

 Charter of the Church of Greece

24.      Law 590/1977 on the Charter of the Church of Greece (Katastatikos Chartis tis Ekklisias tis Ellados) provides in Article 39 that monasteries are religious establishments in which the men and women cloistered may live an ascetic life, under monastic vows and in accordance with the sacred rules and traditions of the Orthodox Church concerning monastic life. The monasteries operate under the spiritual supervision of the bishop for the locality.

25.      Article 56(3) forbids a person under monastic discipline to travel outside the boundaries of his ecclesiastical area without the permission of his religious superior. He must also obtain the permission of the diocesan Bishop to remain in another area for more than two months in the same calendar year, whether continuously or with intervals.

 Law on Ecclesiastical Funds and the administration of Monasteries

26.      Law 3414/1909 (Peri Genikou Ekklisastikou Tameiou kai dioikiseos Monastirion, the ‘Law on the Ecclesiastical Funds and the administration of Monasteries’) provides, in Article 18, that when someone becomes a person under monastic discipline, all his belongings pass to the monastery, with the exception of the share reserved to his heirs under the law of succession.

 Facts, procedure and the question referred

27.      Monachos Eirinaios is a monk in a monastery in Greece. (10) He is also a qualified lawyer and has been a member of the Pagkyprios Dikigorikos Syllogos (Cyprus Bar Association, ‘the PDS’) since 11 December 2014.

28.      On 12 June 2015 he requested to be registered with the Dikigorikos Syllogos Athinon (Athens Bar Association, ‘the DSA’) as a lawyer who has acquired his professional title in another Member State. On 18 June 2015 the DSA’s Board of Administration rejected his request. That decision was based on Article 8(1) of the Presidential Decree, which provides that the national rules on incompatibilities (specifically, being a clergyman or a monk) also apply to lawyers who want to practice in Greece under their home-country professional title.

29.      On 29 September 2015 Monachos Eirinaios appealed against that decision before the referring court.

30.      That court observes that the rules of professional conduct applying to Greek lawyers do not permit monks to practise as lawyers for reasons such as those invoked by the DSA, namely the absence of guarantees regarding their independence, doubts as to their ability to occupy themselves fully with their functions and whether they can handle contentious cases, the requirement for actual (not fictitious) establishment in the geographical area of the relevant court of first instance and the obligation not to provide services without remuneration. If the relevant bar association were obliged to register a monk in accordance with Article 3 of Directive 98/5 with a view to his practising under his home-country professional title, it would then be obliged immediately to find that he had infringed the rules of professional conduct laid down by national law, as permitted by Article 6 thereof, because those rules prohibit monks from practising as lawyers.

31.      The referring court also refers to its own case-law, in which it held that the provision of the Lawyers’ Code previously in force prohibiting clergymen from becoming lawyers was not contrary to the principle of equality and to the freedom to engage in a profession or occupation. First, the public interest requires a lawyer to occupy himself exclusively with his duties and second, practice as a lawyer entails dealing with disputes, which is incompatible with the status of religious minister. (11) The referring court has also previously held that that provision is not contrary to Article 13 of the Greek Constitution, Article 52 of the EC Treaty (now Article 49 TFEU) (since the facts of that earlier case concerned a purely internal situation) and Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. (12)

32.      Against that background, the referring court seeks a preliminary ruling on the following question:

‘Is Article 3 of Directive 98/5 to be interpreted as meaning that the registration of a monk of the Church of Greece as a lawyer with the competent authority of a Member State other than that in which he obtained his professional qualification, in order for him to practise there under his home-country professional title, may be prohibited by the national legislature on the ground that monks of the Church of Greece cannot, under national law, be entered in the registers of bar associations since, on account of their status as persons under monastic discipline, they do not provide certain guarantees necessary for practice as a lawyer?’

33.      Written observations were submitted by Monachos Eirinaios, the Greek Government, the Netherlands Government and the European Commission. At the hearing on 18 September 2018, Monachos Eirinaios, the DSA, the Greek Government and the Commission presented oral argument.

 Assessment

 Applicable law

34.      Various directives apply to different aspects of the situation of a lawyer wishing to practise in another Member State. Thus, Directive 2005/36 deals with the recognition of professional qualifications, whereas Council Directive 77/249/EEC concerns the freedom to provide services. (13) Directive 2006/123/EC concerns a wide range of activities within the internal market, including the provision of legal advice in the context both of establishment and the provision of services. (14) Directive 98/5 applies to lawyers wishing to practice on a permanent basis in the host Member State.

35.      In its written observations, the Netherlands Government submitted that since Directive 98/5 does not lay down any rules of professional conduct for lawyers, guidance could be sought from the other directives that are likely to apply.

36.      I do not share that view.

37.      Directive 77/249 deals with the provision of services by lawyers and not freedom of establishment. (15) However, the proceedings before the referring court concern the refusal of a bar association to register a lawyer who has obtained his professional qualifications in another Member State. The subject matter of the question referred is therefore establishment as a lawyer, which is governed by Directive 98/5, not the freedom to provide legal services. (16)

38.      Directive 2005/36 applies to lawyers wishing to establish themselves immediately under the host Member State professional title. It does not affect the operation of Directive 98/5 (17) and is not relevant here. Monachos Eirinaios is seeking registration to practise under his Cypriot title.

39.      Directive 2006/123 is indeed applicable to legal services and covers not only the provision of services but also establishment. (18) However, Article 25 of that directive, invoked by the Netherlands Government in its written submissions, applies only to the exercise of multidisciplinary economic activities. Being a person under monastic discipline — Monachos Eirinaios’ ‘parallel activity’ to being a lawyer — does not fit within that rubric.

40.      Monachos Eirinaios’ situation clearly falls within the scope of Directive 98/5. He is a lawyer holding a professional title valid in one Member State (who thus falls within the personal scope of Directive 98/5 as defined in Article 1(1) and (2) thereof) who wishes to practise on a permanent basis in another Member State under his home-country professional title (thus satisfying the cross-border element and the material scope of Directive 98/5, as defined in Article 1(1) thereof). It follows that the compatibility with EU law of national rules prohibiting monks from being registered as lawyers under their home-country professional title, on the grounds that they do not provide certain guarantees necessary for lawyers, is to be assessed on the basis of that directive.

 Preliminary remarks on Directive 98/5

41.      The purpose of Directive 98/5 is to improve free movement for lawyers by facilitating the practice of that profession on a permanent basis in a Member State other than that in which the professional qualification was obtained. (19) (In what follows, I shall for convenience refer to such lawyers as ‘migrant lawyers’.)

42.      With a view to promoting the internal market, the directive aims to afford the same opportunities to lawyers and consumers of legal services in all Member States. It seeks in particular to meet the needs of consumers of legal services who, owing to the increasing trade flows resulting from the internal market, seek advice when carrying out cross-border transactions in which international law, EU law and domestic laws often overlap. (20)

43.      Thus, the directive aims, inter alia, to put an end to the differences in national rules on the conditions for registration with the competent authorities, which gave rise to inequalities and obstacles to freedom of movement. (21) Mutual recognition of the professional titles of migrant lawyers wishing to practise under their home-country professional title underpins the achievement of the directive’s objectives. (22)

44.      However, whilst the directive concerns the right of establishment, it neither regulates access to the profession of lawyer nor the practice of that profession under the professional title of the host Member State. (23)

45.      In pursuing its objectives, the directive has to strike a balance between different interests.

46.      First, it balances giving an ‘automatic’ right to migrant lawyers to register with the host Member State’s competent authorities without any prior host Member State control of their professional qualifications (Article 3(2)) against the need to inform consumers of legal services of the scope of such lawyers’ expertise — hence, migrant lawyers are only permitted to practise under their home-country professional title expressed in the language of the home Member State (Article 4(1)). (24)

47.      Second, migrant lawyers are given the right to advise on legal matters and to represent and defend clients, if necessary in conjunction with a lawyer practising before the relevant judicial authority (Article 5). In return, they must register with the competent authority in the host Member State and are subject to the obligations and rules of professional conduct of that State (Articles 3 and 6). (25)

48.      Furthermore, although Article 3(2) of Directive 98/5 harmonises the requirements which must be satisfied by lawyers wishing to pursue their professional activities under their home-country professional title, the directive (i) does not lay down any rules concerning purely domestic situations (recital 7); (ii) is without prejudice to national legislation governing access to and practice of the profession of lawyer under the host Member State’s professional title (recital 7); and (iii) provides that lawyers must comply with the rules of professional conduct in force in that State (recital 8 and Article 6). (26)

49.      In short, Directive 98/5 is a hybrid directive, which addresses freedom of establishment for migrant lawyers wishing to practise under their home-country title by harmonising certain aspects whilst leaving Member States a substantial degree of autonomy in other respects. Promoting freedom of movement is balanced against the need to ensure that consumers are protected and that migrant lawyers fulfil their professional duties in the host Member State with respect for the due administration of justice. As a result, there is an intrinsic potential for tension between admission to practice (Article 3) and the rules governing practice (Article 6).

 The question referred

50.      The referring court asks, in essence, whether Article 3 of Directive 98/5 should be interpreted as permitting national rules prohibiting monks to be registered as lawyers under their home-country professional title, on the grounds that they do not provide certain guarantees necessary to practise as lawyers.

51.      Monachos Eirinaios and the Commission submit that, according to the Court’s case-law, Article 3 of Directive 98/5 has effected a complete harmonisation of the relevant rules. Presenting a certificate attesting registration with the competent authority of the home Member State is the only condition to which registration of the person concerned may be made subject in the host Member State. (27) Whether or not that person then provides the various guarantees necessary to practise as a lawyer is controlled by the relevant bar association at a later stage of the process.

52.      The Commission adds that the question whether Article 7(1) of Directive 98/5 (which deals with disciplinary proceedings should a lawyer practising under his home-country professional title fail to fulfil the obligations in force in the host Member State) is applicable to Monachos Eirinaios is outside the scope of the present proceedings, which concerns only his right to register with the DSA.

53.      At the hearing, the DSA submitted that a systematic interpretation of Articles 3(2) and 6(1) of Directive 98/5 in the light of its recitals should lead to the conclusion that a bar association may refuse to register a lawyer wanting to practise under his home-country professional title when it is apparent from the documents submitted that there is an impediment to such registration under national law.

54.      The Greek Government argues that Article 3 of Directive 98/5 should be read in combination with Article 6 thereof. Were a monk to be registered with the DSA under his home-country professional title, he would immediately have to be struck off in accordance with the Greek rules of professional conduct. That would be an absurd result. The Greek Government considers that a monk does not have the independence necessary to practise as a lawyer.

55.      The Dutch Government submits that Article 3 of Directive 98/5 should be interpreted as precluding national legislation prohibiting a monk from registering and practising as a lawyer under his home-country professional title. Article 6 of the directive does not cover comprehensively rules of professional conduct, which should therefore be examined in the light of other provisions of secondary law, such as Article 25(1)(a) of Directive 2006/123.

 Registration under Article 3 of Directive 98/5

56.      Article 3(2) of Directive 98/5 is solely concerned with registration of migrant lawyers with the competent authority of the host Member State. It provides that that authority ‘shall register the lawyer’ upon presentation of the relevant certificate.

57.      That provision is intended to put an end to the differences in national rules on the conditions for registration with the competent authorities and thus establishes a mechanism for the mutual recognition of the professional titles of migrant lawyers (see point 43 above). It undertakes a complete harmonisation of the preliminary conditions required for the exercise of the right of establishment conferred by that directive. A lawyer who wishes to practise on a permanent basis in a Member State other than that in which he obtained his professional qualification is obliged to register with the competent authority in that Member State. That authority must effect that registration ‘upon presentation of a certificate attesting to his registration with the competent authority of the home Member State’. (28)

58.      According to the Court’s settled case-law, the only condition to which registration may be made subject is that the person concerned should present that certificate to the competent authority of the host Member State. Registration by the host Member State is then mandatory, enabling the person concerned to practise there under his home-country professional title. (29) That analysis is confirmed by the Commission Proposal which, in its comments on Article 3, states that ‘registration is an automatic entitlement where the applicant furnishes proof of his registration with the competent authority in his home Member State’ (emphasis added). Registration places the migrant lawyer at the threshold of practice in the host Member State.

59.      Thus, the Court has already held that Italian nationals who, after having obtained a university law degree in Italy, obtained a further university law degree in Spain and were registered as lawyers in that Member State must be regarded as satisfying all the conditions required for their registration with an Italian bar on presentation of a certificate attesting to their registration in Spain. (30)

60.      In the same vein, the Court found in Wilson that requiring lawyers practising under their home-country professional title to participate in a hearing to enable the Bar Council to verify whether they were proficient in the administrative and court languages of the host Member State was contrary to Directive 98/5. (31)

61.      It follows from that case-law that Member States have no discretion to introduce additional requirements for registration of migrant lawyers under their home-country professional title.

62.      At one level, therefore, the answer to the referring court’s question is straightforward. Article 3(2) of Directive 98/5 prohibits the introduction of an additional condition — such as not being a monk — for registration under a lawyer’s home-country professional title.

63.      Is that conclusion undermined by the interaction between Article 3 and Article 6 of Directive 98/5 and the existence of national rules that provide for lawyers who are (or who become) monks immediately to be struck off the bar register or that impose certain obligations such as the requirement to have a seat and office in the geographical area of the court of first instance where the person concerned is designated as a lawyer or to receive remuneration for their services?

64.      It seems from the information submitted to the Court that the provision of national law that prohibits monks from becoming lawyers is reintroduced in the form of a prohibition on being a monk and practising as a lawyer. (32) Whether that is indeed the case, as a correct reading of national law, is a matter for the national court to verify. Other national rules invoked by the DSA and the Greek Government include the obligations to be independent, to devote oneself exclusively to one’s professional duties and to have a seat and office in the geographical area of the court of first instance where one is designated as a lawyer, and the prohibition on providing services without remuneration. The argument made is essentially that because someone who is a monk ‘will’ breach the rules of professional conduct, it follows that he should not be registered as a lawyer in the first place.

65.      It is important to begin this part of the analysis by recalling exactly what is (and, importantly, what is not) here at issue. The present proceedings concern a migrant lawyer seeking to establish himself and practise under his home-country professional title. They do not concern the right of Greece, or any other Member State, to stipulate the conditions under which a person may qualify as a lawyer under its own rules and practise under its own professional title.

66.      Does Article 6 of Directive 98/5 allow a Member State to ban an individual who qualifies for registration under Article 3 of that directive from practising there as a lawyer under his home-country title on the grounds that, as a person under religious discipline, he cannot by definition conduct himself in the manner required to provide the guarantees necessary for practice as a lawyer?

67.      Here, I consider that an analytical distinction should be drawn between the specific rule stating that a clergyman or a monk cannot be a lawyer, on the one hand, and the various individual rules of professional conduct invoked by the DSA (for example, relating to devoting oneself exclusively to one’s duties as a lawyer, or having a seat and office in the requisite geographical area), on the other hand.

68.      I do not accept that the former rule is properly to be characterised as a rule of professional conduct that falls within the host Member State’s remit under Article 6 of Directive 98/5. It seems to me that such a rule, when it is scrutinised more closely, is a rule stating that persons with particular characteristics should not be allowed to practice. The unspoken assumption is that, because person A has those characteristics, once he commences practice he will necessarily behave in a particular way that is unacceptable under the deontological code. But that is an assumption; and rules of professional conduct are meant to regulate actual conduct, not assumed future behaviour. If one substitutes ‘person with red hair’ for ‘monk’ in the example that I have just given, it will readily become apparent why such a rule is not, properly speaking, a rule of professional conduct.

69.      I add that as far as I can see such a rule would, moreover, in reality deprive the person adversely affected of the procedural guarantees afforded by Articles 7 and 9 of Directive 98/5. If it is assumed that a person with red hair will (for example) automatically breach client confidentiality and he is therefore disciplined in advance by being struck off the bar register before he ever starts to practice, how would the careful bilateral procedure under Article 7 between the host Member State and the home Member State or the right of recourse to a court under Article 9 afford any real protection?

70.      Since only rules of professional conduct are covered by Article 6 of Directive 98/5, it follows that a national rule imposing an absolute prohibition on a monk practising as a lawyer cannot be applied to a migrant lawyer who qualifies for registration under Article 3 and who seeks to practise under his home-country title.

71.      What of the second category of rules identified above?

72.      It is clear from Article 6(1) of Directive 98/5 that lawyers practising under their home-country professional title in a host Member State are subject to the same rules of professional conduct as lawyers practising under the professional title of that State. (33) It thus follows from Articles 6 and 7 of that directive that such lawyers must comply with two sets of rules of professional conduct: the rules of their home Member State and those of the host Member State. If they fail to do so, they will incur disciplinary sanctions and may be exposed to professional liability. (34)

73.      That said, it seems to me that the competent authorities of the host Member State are not entitled to assume in advance that because the person concerned is under religious discipline (or, come to that, an atheist or a member of a particular political or philosophical grouping), he (or she) will automatically and inevitably behave in a way that breaches the disciplinary rules for lawyers in that Member State. Rather, they must wait and see how the person concerned actually conducts himself in practice. That is, after all, what rules of professional conduct are meant to regulate.

74.      As the Court held in Jakubowska, rules of professional conduct, unlike the rules concerning the preliminary conditions required for registration, are not harmonised and may therefore differ considerably from those in force in the home Member State. Failure to comply with those rules may lead to a lawyer being removed from the register in the host Member State. (35) The Court there also emphasised that the absence of conflicts of interest is essential to the practice of the profession of lawyer and requires, in particular, that lawyers should be in a situation of independence vis-à-vis the public authorities and other operators, by whom they must never be influenced. Thus, the fact that particular rules of professional conduct are strict cannot be criticised per se. However, as well as being applied without distinction to all lawyers registered in that Member State, those rules should also not go beyond what is necessary to achieve their objective. (36)

75.      In making the necessary assessment, the objectives pursued by the national legislation must first be identified. (37) The referring court has suggested that the reason for the prohibition on monks acting as lawyers is that the public interest requires a lawyer to occupy himself exclusively with his duties, coupled with the fact that practising as a lawyer entails dealing with disputes, which is incompatible with the status of religious minister. The referring court likewise mentions the requirement of professional independence and freedom to handle cases. Specific ancillary rules of professional conduct invoked which, it is said, a monk would not be able to comply with include the obligation to have a seat and geographical office in the area of the court of first instance where the person concerned is designated as a lawyer and the prohibition on providing services without remuneration.

76.      The reasoning put forward seems to me to combine what indeed may properly be described as ‘objectives’ (and praiseworthy objectives at that) — protecting the due administration of justice and ensuring that the client has access to impartial advice and proper professional representation — with the recurrent assumption that a person under religious discipline will ‘obviously’ not be able to behave in a way that is compatible with those objectives. On the particular facts of a particular lawyer’s professional conduct, that assumption may indeed be correct. However, it may also be erroneous. That can best be shown by taking two (imaginary) examples.

77.      Monk X approaches professional practice as a lawyer as a minor, ancillary intellectual activity that complements his religious life. He regularly refuses to handle cases for ‘bad’ people; always slants his legal advice so that it accords in all respects with what, morally, he considers that his client should do in order to respect the religious teachings of the Church; and is not available on any regular basis in the geographical area in which he was designated as a lawyer. His conduct in practice clearly violates the detailed rules of professional conduct in the host Member State and undermines the public interest objectives of those rules. It is clear that the competent authorities of the host Member State can (and indeed should) institute disciplinary proceedings against Monk X. On the facts that I have outlined, those proceedings will result in his being struck off the register in the host Member State. (I add that he might also well be in trouble under the disciplinary rules of his home Member State.) All this will, however, happen with respect for due process; and Monk X will be able to have recourse to a court or tribunal to challenge the decision disbarring him.

78.      Monk Y discusses with his religious superiors the professional requirements to which he will be subject if he starts to practise as a lawyer. Item by item, they examine together the applicable rules. He receives the necessary dispensation to have a proper seat and office in the geographical area where he is designated. It is agreed that he will charge normal fees for his services and hand them over to a designated charity. He is dispensed from formal attendance at community prayer during the working day so that he can devote himself exclusively to his duties as a lawyer. His religious superiors agree to respect his professional independence. On that basis, Monk Y commences practice as a lawyer; and his conduct as a lawyer is irreproachable. On the facts that I have outlined, it would clearly be objectively unjustified to institute disciplinary proceedings against him, still less to disbar him. Albeit that he is a monk, he is complying with the relevant rules of professional conduct.

79.      I have deliberately given imaginary examples. It is not part of the function of this Court to second-guess what will happen as or when Monachos Eirinaios commences practice. The only conclusion that I reach here — and, I respectfully suggest, the only aspect of the story that the Court need address in answering the question referred — is that Article 6 of Directive 98/5 does not permit a Member State automatically to ban a person who qualifies for registration under Article 3 from practising there as a lawyer under his home-country title on the grounds that, as a person under religious discipline, he cannot by definition conduct himself in the manner required to provide the guarantees necessary for practice as a lawyer.

 Conclusion

80.      In the light of the foregoing considerations, I suggest that the Court should answer the question posed by the Symvoulio tis Epikrateias (Council of State, Greece) as follows:

Article 3(2) of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained should be interpreted as precluding the application of a national rule prohibiting a person from being registered as a lawyer under his home-country professional title on the grounds that he is a monk. Article 6 thereof does not permit a Member State automatically to ban a person who qualifies for registration under Article 3 from practising there as a lawyer under his home-country title on the grounds that, as a person under religious discipline, he cannot by definition conduct himself in the manner required to provide the guarantees necessary for practice as a lawyer.

1      Original language: English.

2      ‘Οὐδεὶς δύναται δυσὶ κυρίοις δουλεύειν· ἢ γὰρ τòν ἕνα μισήσει καὶ τòν ἕτερον ἀγαπήσει, ἢ ἑνòς ἀνθέξεται καὶ τοῦ ἑτέρου καταφρονήσει. Οὐ δύνασθε Θεῷ δουλεύειν καὶ μαμωνᾷ’, Matthew, 6:24.

3      Luke, 10:25-37.

4      Directive of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ 1998 L 77, p. 36), last amended by Council Directive 2013/25/EU of 13 May 2013 adapting certain directives in the field of right of establishment and freedom to provide services, by reason of the accession of the Republic of Croatia (OJ 2013 L 158, p. 368).

5      The normal translation of ‘Monachos Eirinaios’ in English, the original language of this Opinion, would be ‘Brother Eirinaios’. However, I shall here retain the term ‘Monachos’ (monk) in order to avoid the different perceptions and connotations that might accompany the various linguistic versions.

6      Council Directive 89/48/EEC of 21 December 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 (OJ 1989 L 19, p. 16), repealed by Directive 2005/36 of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22).

7      Article 5.

8      Article 7(1)(a) and (c) respectively.

9      Article 7(2).

10      The referring court described Monachos Eirinaios as a monk at the Holy Monastery of Petra, located in Karditsa. However, at the hearing counsel for Monachos Eirinaios indicated that he is currently based on the island of Zakynthos.

11      Referring court (full court), judgment No 2368/1988.

12      Referring court, judgment No 1090/1989.

13      Council Directive of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (OJ 1977 L 78, p. 17), last amended by Council Directive 2013/25/EU of 13 May 2013 adapting certain directives in the field of right of establishment and freedom to provide services, by reason of the accession of the Republic of Croatia (OJ 2013 L 158, p. 368).

14      Directive of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36), recital 33 and Article 1(1).

15      Second recital and Article 1 of Directive 77/249.

16      See Article 1(4) of Directive 98/5. See, also to that effect, judgment of 2 December 2010, Jakubowska, C‑225/09, EU:C:2010:729.

17      Recital 42 of Directive 2005/36. The Court has held, in judgment of 3 February 2011, Ebert, C‑359/09, EU:C:2011:44 (a case concerning Directive 89/48, which was repealed by Directive 2005/36, and Directive 98/5) that those two directives complement one another by establishing, for lawyers from Member States, two means for gaining admission to the profession of lawyer in a host Member State under the professional title of that State: see paragraphs 27 to 35.

18      Recital 33 and Article 1(1) of Directive 2006/123.

19      Recitals 1 and 5 and Article 1(1) of Directive 98/5. See also the Commission’s Proposal for a European Parliament and of Council Directive to facilitate practice of the profession of a lawyer on a permanent basis in a Member State other than that in which the qualification was obtained, COM(94) 572 final (‘the Commission Proposal’), point 1.3.

20      Recitals 1, 5 and 6.

21      Recital 6 of Directive 98/5, and judgment of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 37 and the case-law cited.

22      See, to that effect, judgment of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 36 and the case-law cited.

23      Judgment of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 56.

24      Recital 9. See, to that effect, judgment of 7 November 2000, Luxembourg v Parliament and Council, C‑168/98, EU:C:2000:598, where the Court held ‘that the Community legislature, with a view to making it easier for a particular class of migrant lawyers to exercise the fundamental freedom of establishment, has chosen, in preference to a system of a priori testing of qualification in the national law of the host Member State, a plan of action combining consumer information, restrictions on the extent to which or the detailed rules under which certain activities of the profession may be practised, a number of applicable rules of professional conduct, compulsory insurance, as well as a system of discipline involving both the competent authorities of the home Member State and the host State. The legislature has not abolished the requirement that the lawyer concerned should know the national law applicable in the cases he handles, but has simply released him from the obligation to prove that knowledge in advance’ (at paragraph 43). I add that since the professional title for a Greek-qualified and a Cypriot-qualified lawyer is the same (‘Δικηγόρος’), the DSA would in my view be justified in requiring Monachos Eirinaios to indicate that he is not Greek-qualified – perhaps, by using ‘(Κύπρος)’ after his title. See points 8 and 9 above.

25      See Commission Proposal at point 2.

26      See also Commission Proposal at point 3.3, which emphasises that the proposal confines itself to laying down minimum requirements which migrant lawyers must satisfy. For the rest, it refers to the rules in particular of professional conduct applicable in the host Member State to lawyers practising under the professional title of that State.

27      Judgment of 19 September 2006, Wilson, C‑506/04, EU:C:2006:587, paragraphs 66 and 67.

28      Judgment of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 38 and the case-law cited.

29      Judgment of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 39 and the case-law cited.

30      Judgment of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraphs 9 and 40.

31      Judgment of 19 September 2006, C‑506/04, EU:C:2006:587, paragraph 77. See also judgment of 19 September 2006, Commission v Luxembourg, C‑193/05, EU:C:2006:588, paragraph 40.

32      Article 7(1)(a) of the Lawyer’s Code, see point 22 above.

33      Judgment of 3 February 2011, Ebert, C‑359/09, EU:C:2011:44, paragraph 39 and the case-law cited.

34      Judgment of 19 September 2006, Wilson, C‑506/04, EU:C:2006:587, paragraph 74.

35      Judgment of 2 December 2010, C‑225/09, EU:C:2010:729, paragraph 57.

36      Judgment of 2 December 2010, Jakubowska, C‑225/09, EU:C:2010:729, paragraphs 59 to 62.

37      See, to that effect, and only by analogy, judgment of 21 October 1999, Zenatti, C‑67/98, EU:C:1999:514, paragraphs 26 and 30.

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