Komentarz (w j. angielskim) autorstwa Dominika Malickiego dotyczący wyroku Trybunału Sprawiedliwości Unii Europejskiej w sprawie Robert Koller p-ko Rechtsanwaltsprüfungskommission des Oberlandesgericht Graz (komisji egzaminacyjnej w zakresie dostępu do zawodu adwokata przy sądzie okręgowym w Grazu) w przedmiocie odmówienia przez prezesa owej komisji dopuszczenia R. Kollera do testu umiejętności wykonywania zawodu adwokata w Austrii lub zwolnienia go z tego testu.

In order to be able to give an opinion on this highly controversial case, I first intend to point out the main issues arising from this case and to analyze them by taking into account the opinion of Advocate General, Verica Trstenjak, and the judgement of the Court of Justice (hereinafter “the Court”). Despite the fact, that I have done profound researches in different (law) databases, libraries (also in Austria), books and the internet, finding more detailed and deeper statements or opinions on this case were in vain. As I do have a divided opinion, depending on whether looking from the legal point of view or from my personal attitude, I will consider both.

Before dealing with the actual problematic nature of this preliminary reference, I would like to draw attention to a procedural aspect, that arose with the case and which isn´t less important:

The Court had to decide whether the Oberste Berufungs- und Disziplinarkommission (Appeals and Disciplinary Board; shortly OBDK) is a “court or tribunal” within the meaning of Art. 267 TFEU (ex Art. 234 / 177 EC), otherwise its jurisdiction for a ruling would be lacking. Being aware of this article, I was surprised reading that the preliminary reference was made by the OBDK, because the German version of Art. 267 is not containing the term ‘tribunal’. Thus, according to the literal interpretation, one would assume that the OBDK has no power for such a reference. My initial doubts were supposed to be refuted after doing some research 1) and by reading the Advocate General´s opinion (to which also the Court referred), both justifying the OBDK´s right/obligation to submit a preliminary reference due to their inherent functions, such as independency, composition, compulsory jurisdiction, etc. Though this is settled case- law2, an identical translation of this article would be appropriate and desirable 2).

Now I would like to proceed to the main issues of the case and discuss it in the same order the OBDK referred its questions for a preliminary ruling, starting with whether the Directive 89/48/EEC (now 2005/36) 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 should be applicable. The Austrian Government, such as few others, argued, that Mr. Koller isn´t entitled to hold a ´diploma´ within the meaning of this Directive, inter alia relating to case C- 311/06 and claiming that they are almost identical. Sharing the Advocate General´s and the Court´s opinion, Mr. Koller´s situation is in fact different, as he did acquired during his homologation process the necessary qualifications to be entitled of bearing the title ´Licenciado en Derecho´. In C- 311/06 the applicant, Mr. Cavallera, did complete his studies in Italy, requested homologation in Spain, though not achieving any further qualifications and again required homologation in Italy in order to work as an engineer without passing the mandatory exam.

Therefore in our case the Spanish homologation certificate is not only a formal act or mere recognition, but indeed a diploma pursuant to the Directive. There is no reasonable justification to deny the fulfilment of the preconditions as set forth in Art. 1 a (diploma requirements) of the Directive after exercising a successful subsumption. It seems to me even more that the arguments and comparisons to other cases used by the Austrian Government are arbitrary and out of context- a reluctant conduct I would say. For example the Austrian Government kept referring to the ´Cavallera´ case, but not once to the undoubtful more suitable case C- 286/06 (Commission v. Spain). After careful consideration it should have been evident that the only significant distinction between the cases C- 286/06 and C- 311/06 is the lack of obtaining any qualifications or experiences in the latter one 3), which is why applicability of the Directive was refused and very likely why the Austrian Government preferred to ignore the former case as it rebounded to their advantage. The non-recognition of the equivalence would lead to the conclusion that achievement is not valued, but rather punished, because one might pass the necessary exams in less time. While the Greek Government, and indirectly the Austrian, are assuming an abuse of rights by avoiding the mandatory practice thereby, they pretend not to see some main principles immanent to the Directive, otherwise there should be no doubt as to the recognition of the Spanish degree:

The free movement of persons comprises the freedom of establishment under Art. 49 TFEU, to which Directive 89/48 is referring in its preamble and which in turn is responsible for the implementation of the Federal law on the free movement of services and the establishment of European lawyers (in German shortly: EuRAG). Art. 49 TFEU is governed by the principle of non- discrimination, but because it also might cause an obstacle to the freedom of establishment 4), the Court shifted its focus to the principle of mutual- recognition 5). Facing this smooth connection of provisions and principles, the alleged argument of refusing Mr. Koller the recognition of his degree on the ground of lacking professional experience should be negligible as already pointed out by the Court in case C- 340/89 (´Vlassopoulou´), stating: ´national requirements concerning qualifications may have the effect of hindering nationals of the other Member States in the exercise of their right of establishment guaranteed to them by Article 52 of the EEC Treaty. That could be the case if the national rules in question took no account of the knowledge and qualifications already acquired by the person concerned in another Member State´. From this point of view it should be obvious that Austria is precluded from calling into question the equivalence of professional qualifications acquired in Spain.

As far as the question of abuse of rights is concerned, I have to admit that this was also my first thought when I heard about the case. Why should anyone be allowed to bear the title ´Rechtsanwalt´ and practice as a lawyer without having passed the 5 years of professional education, while I still have to run through it?! Reading the case I realized, that my legal point of view didn’t leave much space for my personal attitude; I will come back later to this distinction. To me misuse/abuse of rights doesn’t mean taking advantage of a lawfully granted right, but using it improperly under the cover of provisions against its inherent objectives and circumventing them. As mentioned above, the main objective of the Directive 89/48 is the principle of mutual- recognition, allowing nationals of one Member State to pursue a regulated profession in another one. Likewise the Court in ´Commission v. Spain´ ruled that the fact that a national of a Member State who wishes to pursue a regulated profession chooses to take up that profession in his preferred Member State cannot of itself constitute an abuse of the general system of recognition laid down by Directive 89/48. The rights of nationals of a Member State to choose the Member State in which they wish to acquire their professional qualifications is inherent in the exercise, in a single market, of the fundamental freedoms guaranteed by the EC Treaty. Referring to abuse of rights might have been sufficient in ´Cavallera´, where the applicant didn’t actually exercised his freedom of movement by way of, for example, supplementary education and training or by obtaining professional experience in a different Member State. As opposed to this Mr. Koller de facto obtained a professional qualification following a ‘post-secondary course’ within the meaning of Directive 89/48 which is- from my legal point of view- requirement enough to preclude an assumption of abuse of rights.

The last issue concerns the Austrian requirement of practical experience (5 years). It is indisputable that a diploma is by no means required to be recognized in the host State automatically. But as the Advocate General pointed out, an aptitude test has to be distinguished from the precondition of practical experience. Again I have two opinions on this topic: Allowing Mr. Koller to take the aptitude test is just lawful, but I have serious doubts concerning the sufficiency of such an aptitude test. Besides, if so, why shouldn’t it be possible for me to skip the practical experience and make the aptitude test immediately after my studies? This would lead to even more concerns- wouldn´t such a prohibition discriminate me towards people like Mr. Koller, who can become lawyer after going through the homologation process? Does it mean that the Court´s shifting to the principle of mutual recognition is constituting an infringement of the principle of non- discrimination more than ever?

Having considered all these aspects, I can say that the Court´s judgment and especially the Advocate General´s deliberations are very thoroughly and satisfying. My personal point of view actually differs in some respect. It is legally desirable to rely on rights granted by provisions and to take advantage of them, just as this case showed. However, not everything what is right is appropriate. While Mr. Koller isn´t bypassing the national provisions, I would say that the Directive facilitates the possibility to do so- frankly speaking. Although I could utilize my Polish knowledge and proceed in the same way, I cannot imagine this being sufficient or equivalent to the value of practical experiences. First, the level for foreigners to get their additional degree isn’t as demanding as for nationals and second- what is even more important- the experience one is achieving during the practice is indispensible. Law, for instance, isn’t just about passing exams and having theoretical knowledge, but learning how to put this knowledge into practice, evolving skills in terms of conduct towards clients and acquiring specific knowledge and experience in mandatory seminar works. As we see, all this goes beyond an aptitude test, which isn’t capable of providing such values.

Besides some questions will remain unanswered:

What is the consequence of the mutual recognition in case of a lawyer? Is the employer willing to employ a lawyer without having him gone through the process of practical experience and let him deal with clients, assign him with tasks, or let him litigate?

Dominik Malicki

1) T C Hartley, The Foundations of the European Union Law, 2010, p. 296 seq.; RA Dr. Wolf-Georg Schärf, OBDK und Art 177 Abs 3 EGV, AnwBl 1998, 420.
2) Case:s C-54/96; 53/03; C-246/05.
3) Barnard Catherine, The Substantive Law of the EU, p. 316.
4) i.e., It takes me 6 years  to qualify as a lawyer in Austria and the principle of non- discrimination would now allow Poland to let me practice, but - in order not to discriminate its nationals- just on the same terms as nationals, thus starting again with my studies.
5) Case C- 71/76 [1977] in Barnard Catherine, The Substantive Law of the EU, p.306.