Reyners v. The Belgian State

(Case 2/74)

Before the Court of Justice of the European Communities

ECJ

(The President, Judge R. Lecourt; Judges A. M. Donner,

M. Sorensen, R. Monaco, J. Mertens de Wilmars, P. Pescatore, H. Kutscher, C. O

Dalaigh and Lord Mackenzie Stuart). M. Henri Mayras, Advocate General.

21 June 1974

Reference from the Belgian Conseil d'Etat under Article 177

Freedom of establishment. Directives. After the expiry of the transitional period, the directives provided for by the chapter in the EEC Treaty on the right of establishment have become superfluous with regard to implementing the rule on nationality, since this is henceforth sanctioned by the Treaty itself with direct effect. These directives have not, however, lost all interest since they preserve an important role in the field of measures intended to make easier the effective exercise of the right of freedom of establishment. [30-31] Freedom of establishment. Discrimination. Nationality. Since the end of the transitional period, Article 52 EEC is a directly applicable provision despite any absence in a particular sphere of directives under Articles 54 (2) and 57 (1) EEC. [32] Freedom of establishment. Discrimination. Nationality. 'Activities connected with the exercise of official authority.' The exemption from freedom of establishment contained in Article 55 (1) EEC for activities connected in a member-State with the exercise of official authority is met when the exclusion of nationals of other EEC member-States is limited to

those activities which, taken on their own, constitute a direct and specific connection with the exercise of official authority. It will only cover a whole profession where such activities are not separable from the professional activity taken as a whole. [45-47] Freedom of establishment. Discrimination. Nationality. Legal profession. The typical activities of the avocat in Belgium, such as consultation, legal assistance, representation and defence of parties in court (even where the avocat has monopoly rights) are not 'connected with the exercise of official authority' under Article 55 (1) EEC. As they are separable from any exercise of judicial power (which is covered by Article 55 (1)), neither they*306 nor the profession of avocat as a whole can be exempted from the prohibition of discrimination on grounds of nationality in the freedom of establishment under Article 52. [52-53] The Court held Article 52 EEC to be self-executing and interpreted Article 55 (1) to the effect that it applies to activities and not to occupations or professions as a whole. Representation Maitre Jacques Veldekens, of the Bar of the Cour d'Appel of Brussels, for the plaintiff. S. Marcus Helmons, Lecturer in the Faculty of Law of the University of Louvain, instruced by Mme. A. M. Delvaux, Legal Adviser in the Belgian Ministry of Justice, as agent, for the defendant Government. Maitres Cyr Cambier and Jacques Van Compernolle, of the Bar of the Cour d'Appel of Brussels, for the Ordre National des Avocats de Belgique, as amicus curiae. Erich Bulow, of the German Federal Ministry of Justice, for the German Government as amicus curiae. John D. Cook, of the Irish Bar, instructed by Liam J. Lysaght, Chief State Solicitor, for the Irish Government as amicus curiae. Maitres Tony Biever and Alex Bonn, of the Bar of the Cour Superieure de Justice of Luxembourg, instructed by Edouard Molitor, Counsellor at the Luxembourg Ministry of Foreign Affairs, for the Luxembourg Government as amicus curiae. E. L. C. Schiff, General Secretary of the Dutch Ministry of Foreign Affairs, for the Dutch Government as amicus curiae. Peter Gibson, of the English Bar, Junior Counsel to the Treasury, instructed by W. H. Godwin, Assistant Treasury Solicitor, for the United Kingdom Government as amicus curiae. Paul Leleux, Legal Adviser to the European Communities, for the E.C. Commission as amicus curiae. The following cases were referred to by the Advocate General in his submissions:

1. Franz Grad v. Finanzamt Traunstein (9/70), 6 October 1970: [1971] C.M.L.R. 1, 16 Recueil 825. 2. Costa v. Enel (6/64), 15 July 1964: [1964] C.M.L.R. 425, 10 Recueil 1141. 3. S.A.C.E. v. Italian Ministry of Finance (33/70), 17 December 1970: [1971] C.M.L.R. 123, 16 Recueil 1213. 4. Marsman v. FA M. Rosskamp (44/72), 13 December 1972: [1973] C.M.L.R. 501, 18 Recueil 1243. 5. Alfons Lutticke GmbH v. Hauptzollamt Sarrelouis (57/65), 16 June 1966: [1971] C.M.L.R. 674, 12 Recueil 293. 6. SAS Eunomia di Porro E C. v. Italian Ministry of Education (18/71), 26 October 1971: [1972] C.M.L.R. 4, 17 Recueil 811. 7. Capolongo v. Azienda Agricola Maya (77/72), 19 June 1973: [1974] 1 C.M.L.R. 230, [1973] E.C.R. 611. 8. Sotgiu v. Deutsche Bundespost (152/73), 12 February 1974: [1974] E.C.R. 153 *307 . TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Facts The plaintiff, born in Brussels of Dutch parents, has retained his Dutch nationality, although resident in Belgium, where he has been educated and been made docteur en droit belge according to a diploma issued by the central selection committee on 23 July 1957 and confirmed on 13 September 1957. It has not been possible for the plaintiff to be admitted to the practice of the profession of avocat in Belgium; the Act of 25 October 1919 temporarily modifying the organisation of the courts and the procedure before courts and tribunals provided that 'no one shall be admitted to take the oath nor inscribed on the roll unless he is Belgian'. This provision has been replaced as from 1 November 1968 by section 428 of the Judicature Act 1967 [FN1] whereby FN1 Code Judiciaire (10 October 1967). No one may hold the title of avocat nor practise that profession unless he is Belgian, holds the diploma of docteur en droit, has taken the oath prescribed by Law and is inscribed on the roll of the Ordre or on the list of probationers. Dispensations from the condition of nationality may be granted in cases determined by the King, on the advice of the General Council of the Ordre des Avocats. The plaintiff has made several unsuccessful applications to the General Council of the Ordre National des Avocats for dispensation from the condition of nationality. On the advice of the General Council of the Ordre National des Avocats a Royal

Decree was issued on 24 August 1970 derogating from the condition of nationality prescribed by section 428 of the Judicature Act 1967 relating to the title and exercise of the profession of avocat. Section 1 of this Decree provides that: Dispensation from the condition of nationality prescribed by the first paragraph of section 428 of the Judicture Act shall be granted in favour of a foreigner: 1. who has been permanently resident in Belgium for at least six years before the date of the application for enrolment; 2. who can prove, if he was a member of a foreign Bar, that he was not disbarred for reasons casting doubt on his integrity with regard either to his private or to his professional life; *308 3. who can produce, except in the case specified in section 2 (d) (recognition as a refugee), a certificate issued by the Minister for Foreign Affairs stating that national law or an international agreement accords reciprocity; 4. who, at the time of application for enrolment, has maintained abroad neither a permanent residence, nor a residence within the meaning of section 36 of the Judicature Act, is not a member of a foreign Bar, and gives an undertaking not to become so. The plaintiff does not satisfy the condition of reciprocity laid down by the Royal Decree of 24 August 1970, since section 2 (1) of the Dutch Advocates Act 1968 [FN2] stipulates that an applicant for admission to the Bar must have Dutch nationality. FN2 Advocatenwet (16 March 1968). The plaintiff applied on 5 November 1970 to the Conseil d'Etat of Belgium for the annulment of section 1 (3) of the Royal Decree of 24 August 1970, maintaining that this provision infringes Articles 52, 54, 55 and 57 of the EEC Treaty. By order of 21 December 1973 the Conseil d'Etat of Belgium, section d'administration, IIIe Chambre, stayed the proceedings and applied to the European Court under Article 177 of the EEC Treaty for a preliminary ruling on the following questions: 1. What is to be understood by 'activities which in that State are connected, even occasionally, with the exercise of official authority' within the meaning of Article 55 of the Treaty of Rome? Must this Article be interpreted in such a way that within a profession like that of avocat only activities which are connected with the exercise of official authority are excluded from the application of Chapter II of this Treaty, or as meaning that this profession itself is to be excluded on the grounds that its exercise involves activities which are connected with the exercise of official authority? 2. Is Article 52 of the Treaty of Rome, since the end of the transitional period, a 'directly applicable provision', despite, in particular, the absence of directives as prescribed by Articles 54 (2) and 57 (1) of the said Treaty? In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written amicus briefs were submitted on 11 March 1974 by the Commission of the European Communities, on 15 March by the Government

of the Federal Republic of Germany, on 18 March by the Government of the Kingdom of the Netherlands, Mr. Reyners, the plaintiff in the main action, and the Government of the Grand Duchy of Luxembourg, on 21 March by the Government of the Kingdom of Belgium, on 5 April by the Government of Ireland and on 8 April by the Government of the*309 United Kingdom of Great Britain and Northern Ireland. Oral argument was presented on 7 May 1974 by the same parties except the Government of the Kingdom of the Netherlands but with the addition of the Ordre National des Avocats de Belgique.

Submissions of the Advocate General (M. Henri Mayras)

Introduction The economic integration which is the basic aim of the Rome Treaty implies the development of trade in a single market as well as the free circulation of goods and men. It opens up to undertakings and to workers a field of action widened to the whole of the Community, multiplies business relations and thus contributes to breaking down the national framework which has become too narrow. Consequently, it requires also not only that all restrictions should be abolished on the free supply of services within that Community, but also that the nationals of each member country should be recognised as having the right to establish themselves in another member-State and there to carry out their occupations, whether they be industrial, commercial, agricultural or professional, on the same conditions as the nationals of the latter State. Economic integration must obviously be matched by the development of legal relations, and so the increase and diversification of those services which individuals and undertakings need as regards consultation and litigation. It is necessary then that they should be able to have recourse to such services and choose, irrespective of nationality, the lawyers whom they consider the best qualified to advise them and defend their interests. By their training and skill, their traditions and the professional rules which are imposed on them, advocates are, above all, the most suited to meet those needs, to bear that responsibility on the Community level. But, in that perspective, it is necessary that the carrying on of their profession should not, in each State, be subjected to a nationality condition; on the contrary, access to the national Bars must be open to the advocates of the other member-States. How can we then not betray some astonishment that the freedom of establishment of advocates has not yet come into being and even can be denied them? In fact this problem, which raises the question of the interpretation of Articles 52 and 55 of the Rome Treaty, is one of those which have since the entry into force of the Treaty raised the most lively controversies and the most marked differences between the Bars and the national governments, to the extent that the activity of the Community organs in this field has been paralysed and no positive measure to*310 free the activities of advocates on the Community level has hitherto been able to come about.

That is why it is fortunate that the Belgian Conseil d'Etat, using the procedure laid down by Article 177, today gives you the opportunity to settle this question at last and to put an end to the uncertainty which has obtained for so many years.

I. Position of the problem--The facts Born in Brussels on 19 May 1931, of Dutch parents who had long been established in Belgium, Monsieur Jean Reyners was brought up in that country, pursued his studies there which were crowned in 1957 with the Belgian diploma of Doctor in Law (docteur en droit) and continues to reside there. But he has kept his nationality of origin and when he wanted to carry on in Belgium the profession of avocat he came up against the statutory obstacle of this nationality. For, since 1919, no one may be inscribed on the register of the Ordre National des Avocats de Belgique if he does not have Belgian nationality. Section 428 of the Judicature Act 1967 maintained that requirement, but allowed the Crown to make exceptions to it in circumstances laid down by arrete adopted with the advice of the National Bar Association (Ordre National des Avocats de Belgique). In accordance with that statutory provision, the royal arrete of 24 August 1970 provides in section 1 (3) that Belgian nationality is not required for access to the Bar, but on condition inter alia that the national law of the foreign candidate or an international agreement authorises reciprocity. But, although he meets the other conditions laid down by that arrete, such as having been domiciled in Belgium for more than three years and never having been inscribed in a foreign Bar, M. Reyners does not satisfy the reciprocity clause. For, hitherto at least, his national law, that of Holland, makes possession of Dutch nationality necessary for access to the profession of advocate; and while an agreement relating to the carrying on of that profession was concluded on 12 December 1968 between Belgium and Holland, that agreement concerns only the supply of services by advocates and does not govern their establishment in one or the other country. M. Reyners therefore brought before the Conseil d'Etat in Brussels an action for annulment of section 1 (3) of the royal arrete on the ground of violation of Articles 52 to 58 of the Rome Treaty. He has submitted that the requirement of nationality or reciprocity was contrary to those provisions of the Treaty and, in any case, not applicable against a national of a member-State of the Community. Finding that the solution of the dispute depended upon the interpretation of Community law, the Conseil d'Etat has put two questions to you for a preliminary ruling. In the first, the Belgian court asks you what is to be understood*311 by 'activities which in that State are connected, even occasionally, with the exercise of official authority' within the meaning of Article 55 of the Treaty. Should that Article be interpreted to mean that within a profession like that of the Bar only those activities which involve the exercise of official authority are to be excluded from the application of chapter II of the Treaty or to mean that the profession itself is excluded because its exercise includes activities involving the exercise of official authority? The second question relates to Article 52 of the Treaty, and you are asked

whether it is, since the end of the transitional period, a directly applicable provision and is so notwithstanding inter alia the absence of the directives provided for in Articles 54 (2) and 57 (1) of the Treaty. I think it is more logical to deal with the latter question first since it goes to defining the nature, as concerns the doctrine of direct effect, of the rule of principle posed by Article 52, and only then to go on to determine the scope of the exclusion in Article 55.

II. Direct applicability of Article 52 This examination should naturally start from your case law on the direct effect of Community law and will lead us, after recalling the criteria which permit one to decide whether a provision of the Treaty is directly applicable in the legal order of the member-States, to seek whether Article 52 meets the conditions which you require. Directly applicable Community norms are an integral part of the law in force in the internal legal systems and create for the citizen the right to bring legal actions, according to Franz Grad v. Finanzamt Traunstein (9/70), , [FN3] whether to enforce subjective rights or to protect his interests, or finally, as in the present case, to show that a provision of national law which is incompatible with the Community rules cannot be pleaded against him. FN3 [1971] C.M.L.R. 1, 16 Recueil 825. It is for this Court, faced with a request for a preliminary ruling under Article 177 made by a national court before which a Community norm is pleaded, to decide in each particular case whether the norm in question is, through its provisions themselves, through its general construction and in the context and spirit of the Treaty, suited to producing direct effects in the relations between the member-State subject to it and the latter's nationals. 1. One first condition appears from the case law: the rule must be sufficiently clear and precise. One can without hesitation see that Article 52 has that quality, since it is aimed at removing restrictions on the freedom of establishment of the nationals of one member-State on the territory of another member-State and states that that freedom involves access to and*312 exercise of self-employed activities together with the creation and running of undertakings. This provision thus prohibits States imposing on Community nationals who wish to carry on an activity, including a profession, on their territory any condition which is more restrictive than that imposed on their own nationals. Doubtless the wording used is not strictly speaking adequate: it is less a matter of freedom of establishment than of the right to equality of treatment in carrying on an economic activity, i.e., a prohibition of any discrimination, direct or disguised, based on nationality. Nonetheless the rule thus laid down is perfectly clear. It is also symmetrical with the principle of free circulation of employed workers, which is laid down by Article 48 which, in the words of its second paragraph 'shall

entail the abolition of any discrimination based on nationality between workers of the member-States as regards employment, remuneration and other conditions of work and employment'. But who would dream of denying the direct effect of Article 48 which subtends and inspires all your case law on employment of migrant workers? Likewise, Article 52 should be read together with Article 53 whereby ' member-States shall not introduce any new restrictions on the right of establishment in their territories of nationals of other member-States'. That is a 'stand-still' clause, i.e. a prohibition against making worse, by more restrictive or discriminatory measures, the situation which existed in each member-State when the Treaty entered into force. You have expressly recognised that that rule is directly applicable in Costa v. Enel (6/64). [FN4] FN4 [1964] C.M.L.R. 425, 10 Recueil 1141, 1162. Article 52 is, by its very nature and its content, fully assimilable to Article 53. Should one nevertheless consider that the reason for recognising a direct effect in that latter provision [Article 53] derives from the fact that it limits itself to imposing on the member-States an obligation to refrain, to not do, while Article 52 implies a positive duty on the national authorities to cease to apply any statutory, regulatory or administrative measure liable to hinder the establishment of Community nationals? That objection just must be dismissed. You have held, in the clearest manner, that provisions of the Treaty which create obligations for the States to act can be directly applicable. Thus, in S.A.C.E. v. Italian Ministry of Finance (33/70) [FN5] you held that the obligation*313 based on Articles 9 and 13 (2) of the Treaty, aimed at the abolition of certain taxes of equivalent effect to customs duties, has direct effect in the relations between the member-State in question and its citizens. FN5 [1971] C.M.L.R. 123, 16 Recueil 1213. 2. A second criterion of direct applicability lies in the unconditional character of the Community norm, the execution of which must be subject to no basic conditional element (condition de fond). On that level too Article 52 can be usefully read together with Article 48 for, although the removal of the restrictions on establishment for self-employed activities is to be realised only gradually during the transitional period laid down by the Treaty, Article 52 provides in very similar terms that free circulation must be ensured by the expiry of that same period at the latest. But neither one nor other of these provisions contains any condition capable of stopping its direct application. The 'national treatment' rule which results both from Article 48 as regards employed workers and from Article 52 as concerns the access to and carrying on of self-employed activities, is indeed subject to no limitations other than those

justified by reasons of public policy (ordre public), public security or public health, in the words of both Article 48 (3) and Article 56 of the Treaty. Such reservations, restrictively laid down, are not such as to affect the direct effect of those provisions (see Marsman v. FA M. Rosskamp (44/72) [FN6]), any more than the exceptions contained in paragraph (4) of Article 48 regarding employment in the public service or in Article 55 as regards activities which in a member-State are connected with the exercise of official authority. FN6 [1973] C.M.L.R. 501, 18 Recueil 1243. Those provisions do, to be sure, restrict the field of application of the principle of equal treatment; they do not put in question its direct applicability. 3. There remains a third condition. The Community norm must be perfect; it must be sufficient in itself. Its execution must not therefore depend upon the intervention of subsequent measures which could be taken, to some extent in their discretion, by the Community institutions or by the member-States. That is where some have raised doubts as to the direct effect of Article 52. What is the position really? The text begins with the following phrase: 'Within the framework of the provisions set out below, restrictions on the freedom of establishment ... shall be abolished by progressive stages in the course of the transitional period'. It thus refers to Article 54 which lays down the procedure whereby the Community authorities are required to adopt the provisions for the effective attainment of freedom of establishment. It is therefore to be considered, so it is argued, that the operation*314 of Article 52 is linked to the intervention of these Community measures. What are they? First, a general programme, which is to be enacted by unanimous vote of the Council, on a proposal of the Commission and after consulting the Economic and Social Committee and the Assembly, before the end of the first stage. This programme is to set out the general conditions under which freedom of establishment is to be attained in the case of each type of activity and the stages by which it is to be attained. The general programme was adopted by the Council in December 1961, i.e. within the time limit laid down. It divided the various activities concerned into categories, fixed a timetable for their liberation, defined inter alia the restrictions to be abolished, laid down the general conditions in which the liberation was to be carried out. But the adoption of this programme did not wholly exhaust the intervention of the Community authorities, for paragraph (2) of Article 54 requires in addition that the Council enact directives and paragraph (3) of the same Article contains, as regards the objectives of its action, a non-exhaustive list of instructions. But it is a fact that while for certain categories of activity these directives have been issued so that they have been incontestably freed, for others the Council has not fulfilled the task laid upon it, has not enacted the measures laid down by Article 54 before the end of the transitional period.

That period expired on 1 January 1970 and it must therefore be asked whether Article 52 has become directly applicable, nothwithstanding the absence of intervention by the Council, in some at least of the fields in which it was required. That is the question. The determining factor in my view is that Article 52 imperatively laid down that the abolition of all restrictions on the freedom of establishment should take place during the transitional period. And that is not an isolated case of use of that formula in the Treaty. The Treaty offers many examples of provisions using the same techniques, whether for the abolition of customs duties on imports (Article 13) or on exports (Article 16) between the member-States, or the prohibition on member-States subjecting the goods of other member-States, either directly or indirectly, to internal taxes of any nature higher than those to which similar national products are subject. In these various cases the obligations imposed on the States were to be gradually complied with: 'during the transitional period' as Article 13 says, or 'by the end of the first stage' as laid down by Article 16, or 'not later than at the beginning of the second stage', as Article 95 (3) requires. You have not hesitated to decide that on expiry of the term fixed*315 in each case the rules laid down by these provisions were to become directly applicable. You held so regarding Article 95 in Alfons Lutticke GmbH v. Hauptzollamt Sarrelouis (57/65) [FN7]. FN7 [1971] C.M.L.R. 674, 12 Recucil 293, 302. Even more decisive were the grounds of your judgment of 17 December 1970 in S.A.C.E. v. Italian Ministry of Finance (33/70) in which you held, as regards Article 13 (2): 'Article 13 (2) imposes on the member-States the obligation to abolish taxes with an equivalent effect to customs duties on imports gradually "during" the transitional period. Although it was left to the Commission to establish the timetable for this abolition, nevertheless it results from the wording of Article 13 itself that these charges had to be completely abolished before the end of that period. Therefore from the end of that period Article 9 is fully effective per se.' [FN8] FN8 [1971] C.M.L.R. 123, 132 (Para. [8]). Pursuing your reasoning, you held: 'The combined effect of Articles 9 and 13 (2) implies, at the latest from the end of the transitional period, with regard to all charges with an equivalent effect to customs duties on imports, a clear and precise prohibition on the imposition of these charges, which is not accompanied by any reservation on the part of the States to make its entry into force subject to a positive measure of internal law or an intervention of the institutions of the Community. This prohibition is of its own nature perfectly capable of producing direct effects on the legal relations between the member-States and their nationals.' [FN9]

FN9 Ibid. para. [9]. Emphasis supplied by the Advocate General. The judgment of 26 October 1971 in SAS Eunomia di Porro E C. v. Italian Ministry of Education (18/71) [FN10] held, as regards the gradual abolition of customs duties and taxes of equivalent effect on exports, a solution which was identical on all points. FN10 [1972] C.M.L.R. 4, 17 Recueil 811. Finally, your case law was yet more recently confirmed by the judgment of 19 June 1973 in Capolongo v. Azienda Agricola Maya (77/72). [FN11] FN11 [1974] 1 C.M.L.R. 230, [1973] E.C.R. 611, 623. Here is a first and important indication that seems transposable without difficulty to Article 52 and to lead on similar grounds to the recognition that that provision is capable of producing direct effects, without its execution requiring intermediate acts coming either from the Community institutions or from the member-States. It will be noticed that the phrase by which Article 52 begins: 'Within the framework of the provisions set out below ...', has no other aim than to refer to the procedure whereby the gradual abolition of the restrictions was in principle to be carried out. It certainly did not have the effect either of legally subjecting such abolition to the intervention of the directives provided for in Article 54 or of cancelling*316 the time limit which the authors of the Treaty clearly and compulsorily fixed for its completion. Likewise, when they have decided otherwise they have said so expressly. That is the particular case with the medical and allied and pharmaceutical professions, for whom under Article 57 (3) 'the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various member-States'. It is again useful to compare Article 52 with Article 53. I have said that the content of these two texts is in substance identical; both one and the other have the object of forbidding every member-State subjecting the access to employment by Community nationals 'to a more severe regulation than that which is prescribed for nationals ...' [FN12] The only difference between these provisions lies in the fact that Article 53--prohibition of new restrictions-- was therefore applicable as from the entry of the Treaty into force, while Article 52, laying down the abolition of the existing restrictions, was to have effect only at the end of the transitional period. FN12 Costa v. Enel (6/64): [1964] C.M.L.R. 425, 458. Finally we should examine whether, by asking the Council to enact certain directives for the operation of Article 52, the authors of the Treaty conferred on it a margin of discretion in circumstances such that the effective attainment of the obligations imposed by that Article was possible only via the intervention of such

measures. I, on the contrary, think with the majority of commentators [FN13] that the Council had a controlled power (competence liee), as well incidentally as the member-States, that it was legally bound to abolish all the restrictions on freedom of establishment based on nationality whether they were direct or disguised. FN13 Rambow, 'the End of the Transitional Period', In (1968-69) 6 C.M.L.Rev. 439; Schrans, [1970] S.E.W. 253; Megret, Le Droit de la Communaute Economique Europeenne, vol. 3 (1971) at p. 90. Certainly it had the power to decide on the timetable by which the freeing of the activities should be carried out for their various categories--and this was indeed laid down in the general programme--and it could determine the means by which the actual attainment of the freedom of establishment would be got. But Article 52 imposed on it, in any case, an obligation to reach a result which had to be fulfilled by a precise date. The Council had no power either to evade this obligation or to alter its content. This obligation as to result bears upon the member-States on the same conditions, and the failure of the Council to take certain of the application measures laid down within the time limit given in no way authorises them to oppose the principle laid down in it. Likewise, as we have seen, the Article does not forbid a State to regulate so far as it is concerned the conditions of access to or exercise of self-employed*317 activities, provided at least that in that field the nationals of the other member-States are given equal treatment to that given to nationals. As to the particular measures set out in Article 57, concerning particularly the mutual recognition of diplomas or the co-ordination of the statutory, regulatory and administrative provisions of the member-States concerning access to and exercise of self-employed activities, they constitute a complement which is, certainly, useful for the practical attainment of the equal treatment but they do not seem to be a necessary legal precondition for it. The direct applicability of Article 52 is not subject to the intervention of these measures, except in the special case of the medical and allied and pharmaceutical professions. I think, therefore, both that the fact that the Treaty provided for the intervention, in the form of Council directives, of measures aimed at realising the objectives of Article 52 is not sufficient to stop the direct effect of that provision, and that the expiry of the transitional period marked the point of departure of the direct applicability of that provision, even though the directives in question, or some of them, had not yet been promulgated. I have all the less hesitation in proposing this interpretation in that, in the litigation before the Belgian Conseil d'Etat, the question of equal treatment is, in a sense, posed in its purest form on the completely circumscribed ground of the nationality condition. It seems to result clearly from Article 52, which creates rights in favour of Community nationals, that a member-State may not lawfully impose on a national of another member-State, who incidentally fulfils the conditions of

residence and qualifications required by the national law, for access to a self-employed activity like that of an avocat such a nationality condition, or else a reciprocity condition, without infringing the equal treatment which constitutes the very foundation of that provision of the Treaty.

III. Interpretation of Article 55 of the Treaty We can now come to the problem of interpreting Article 55 which derogates from the principle of freedom of establishment by excluding from its application, in each member-State, activities which are connected, even occasionally, with the exercise of official authority. 1. Two arguments are opposed on this subject and it is not surprising to find that the differences which have arisen right from signature of the Treaty are found today in the pleading in the present case by the governments of six of the member-States of the Community as well as by the National Bar Association of Belgium and by the Commission. For some, by excluding from the freedom of establishment activities which are connected with the exercise of official authority, the authors of the Treaty intended to exclude from the field of application of Article 52 certain complete occupations. *318 For others the exception is applicable only to given activities, without the occupations within which such activities are carried on being thereby completely withdrawn from the freedom of establishment, so long at least as they are severable from the normal exercise of such occupations. To choose between these opposed concepts, we must start by placing Article 55 in the general context of the provisions of Title III, chapter 2 of the Treaty, devoted to the freedom of establishment. Let us note straight away that the principle as expressed in Article 52 is the freedom of establishment, i.e. the right of Community nationals to have access to and exercise activities as self-employed persons on the same conditions as nationals. Just like the free circulation of employees, guaranteed by Article 48, the right to establishment thus constitutes one of the key provisions of the Treaty. It establishes in favour of the nationals of the member-States a fundamental liberty. Therefore, in so far as it makes an exception to that liberty, Article 55 cannot be interpreted anything but strictly. It happens that quite recently you had the opportunity to give a ruling on paragraph (4) of Article 48, likewise an exception clause, which concerns employed workers and which is similar to Article 55 in that it excludes such workers from free access to jobs in the public service. You upheld the strict interpretation when you held: 'Taking account of the fundamental nature, in the scheme of the Treaty, of the principles of freedom of movement and equality of treatment of workers within the Community, the exceptions made by Article 48 (4) cannot have a scope going beyond the aim in view of which this derogation was included.' [FN14] FN14 Sotgiu v. Deutsche Bundespost (152/73): [1974] E.C.R. 153.

The same thought process should guide you in the interpretation of Article 55. There is a second consideration: the rules of the Treaty should receive uniform application; their meaning should be the same in all the member-States. Therefore the expression 'activities connected with the exercise of official authority' should bear a Community meaning. I mean by that that while each State retains the power to organise on its territory a given activity on conditions such that the activity is connected with the exercise of official authority, that notion still must receive a single definition on the level of the whole Community. Official authority is that which derives from the sovereignty, the imperium of the state; it implies, for the one exercising it, the power to enjoy prerogatives which fall outside the ordinary law (exorbittantes du droit commun), privileges of public power, powers of coercion over the citizens. There can therefore be no participation in the exercise of such*319 authority except deriving from the state itself, directly or by delegation to certain persons, even if the latter are not civil servants. In that respect, Article 55 should be compared with paragraph (4) of Article 48 the aim of which, as you held in Sotgiu (152/73), is to permit the member-States to restrict the access of foreign workers to certain activities within the public service, those which involve the exercise of state powers. The objective of Article 55 is very similar: it is a matter of excluding the nationals of the other member-States from self-employed activities whose exercise would lead them to the exercise of prerogatives of that sort. And it was deliberately that the authors of the Treaty used the term ' activities' in Article 55. They wanted to make a clear distinction between 'activities' and ' occupations', as appears notably from Article 57, the third paragraph of which concerns as a special case the medical and allied and pharmaceutical professions, whereas its second paragraph speaks of self-employed activities in general. That is likewise the case with Article 60 (2) which refers to ' activities of the professions'. This distinction cannot only be explained by the fact that, in view of the differences which exist between one member-State and another in the definition, the structure and the attributes of the independent occupations, it would doubtless have been difficult to find a concept of 'occupation' [FN15] common to all the States. FN15 The French original has 'profession', but that is best translated as ' occupation', leaving the English word 'Profession' for what the French call a ' profession liberale'.--Ed. It finds its justification in the will to exclude from the right of establishment only the activities which are connected with the exercise of official authority and not the occupations. The phrase 'even occasionally' strengthens this interpretation, in my view. The exercise of an occupation in general covers a certain number of distinct activities, some being essential, others being of merely an accessory, complementary or

even simply occasional nature. In so far as one of these activities, even if exercised occasionally, is connected with the exercise of official authority it is thereby excluded from the freedom of establishment. But that does not mean that the exclusion is extended to the occupation as a whole. If that had been the intention of the authors of the Treaty they would not have failed to say so expressly. Consequently, to apply the exception in Article 55 to whole occupations would amount to conferring on it, to use the words of your judgment in SOTGIU, a scope which exceeds the purpose for which that clause was inserted. It is only where the exercise of a given occupation is inseparable from an activity covered by that Article that the exception could extend to the occupation itself. Finally, it is not pointless to recall that on the report of its Legal*320 Committee the European Parliament in a resolution of 17 January 1972 supported a restrictive interpretation of Article 55 and stated that only those activities involving the actual exercise of official authority are excluded from freedom of establishment, but that the occupations within the context of which those activities are carried on should be subject to the freedom. 2. What about the activities of avocats in these circumstances, in the light of Article 55? I talk of activities advisedly and not of the profession, and that first observation leads us to dismiss, to start with, an argument put forward by the National Council of the Bar Association of Belgium and adopted by the Government of the Grand Duchy of Luxembourg in its brief. The authors of the Treaty, we are told, would never have had the intention to subject the profession of avocat, as such, to freedom of establishment. This is witnessed, inter alia, by the positions adopted at the beginning of 1957 by the heads of delegation at the intergovernmental conference to prepare the Rome Treaty, as well as by certain declarations made during the Treaty ratification debates in certain national Parliaments. But the signatory States of the Rome Treaty themselves excluded any recourse to the travaux preparatoires and it is very doubtful whether the reservations and declarations cited, which in any case did not agree with each other, could be regarded as constituting true travaux preparatoires. Likewise they would not be citable, under the Act of Accession, against the new members of the enlarged Community. But above all you have yourselves several times denied recourse to such a method of interpretation by giving predominance to the content and the finality of the provisions of the Treaty. But neither in Article 52, the field of application of which extends to the whole of self-employed activities, nor in Article 55 which admits, as we have seen, only a limited derogation to the freedom of establishment does one find any element which could give reason to believe that the principle of equal treatment was excluded for the profession of advocate. When the authors of the Treaty wanted to reserve a particular place for certain occupations, if only to subject the freeing of their activities to a prior co-ordination

of the conditions for carrying them on in the member-States, they did not fail to say so expressly. That is so, and is the only case I am aware of, for the medical and pharmaceutical professions. A fortiori, to exclude totally a given occupation from Article 52 would have required an unequivocal provision. We are thus forced to admit, according to the interpretation which I believe to be the right one, that of the activities of an avocat only*321 those can fall under the exception of Article 55 which, in a member-State, are connected with the exercise of official authority. The position of advocates and the determination of their functions, linked to the structure of the courts, remain governed by national law. We cannot therefore ignore the fact that the question put in general terms by the Belgian Conseil d'Etat should be especially examined in the light of the activities of avocats in Belgium. However, I shall be led to extend on certain points at least the scope of my examination and to throw light on certain common traits of the traditional activities of advocates as found in the different member-States. One distinction should be made in these activities--between consultation on the one hand and pleading and representation in court on the other. It goes without saying that the former of these activities has no link whatsoever with the exercise of official authority. Besides, it remains free in certain member-States, except for Germany, and subject to the reservation for France of the recent legislation relating to the title 'legal adviser' (conseiller juridique). It is frequently exercised by the members of various legal professions. It can also be exercised by lawyers who are employees, attached to an undertaking or to a group of undertakings. Is it otherwise with representation and defence before the courts? Advocates are to be sure assistants of the judicial authorities (auxiliaires de la justice). They generally have a monopoly in the right to appear in court. They are bound to their clients by the authority 'ad litem'. The civil or criminal procedure determines their role and the circumstances in which they are called upon to take part in trials. Finally, they can be allotted by the court and are called on to carry out the task of legal aid. But none of these considerations seems to me to bring a conviction that advocates participate, by reason of such activities, in the exercise of official authority. They imply a collaboration with the public service of the courts, but do not confer on the advocate any prerogative of public power. While, undeniably, the judicial power given to the judges forms part of official authority, state authority, of which it constitutes the direct emanation, advocates for their part facilitate the exercise of that power, give to the judge a co-operation for which their independence, their skill and their ethics especially qualify them. But they do not themselves participate in the exercise of the judicial power. The monopoly in the right to appear in court, which in any case is not absolute since certain exceptions have been made to it particularly before social security and labour tribunals, [FN16] is not assimilable to a public power privilege either. It constitutes for the parties a guarantee*322 of being assisted by a qualified and

responsible professional to whom they entrust the defence of their particular interests. The advocate does not have the task of making the interests of the public authority prevail. FN16 'devant les juridictions de caractere social'. This phrase would presumably also cover such other courts of a social welfare nature as rent tribunals. Ed. Or at least, when he does have that task it is as a member of an independent occupation, selected by the state to defend the public interest, i.e. when he belongs to a corps of public officials, as is the case with avvocati di stato in Italy. But in this second case he is no longer carrying on a profession; his position does not fall under Article 55 but under Article 48 (4) of the Treaty. As for the activity of so-called 'postulation' [FN17] which in France was until recently entrusted to avoues, ministerial officers, [FN18] representatives of their clients, appointed by the Government (a situation which still persists for the avoues at the Courts of Appeal and the avocats at the Conseil d'Etat and the Cour de Cassation); it has no other object than to permit the proper procedure to be carried out; it does not confer on the avocat any privilege outside the ordinary law (droit commun). FN17 'Postulation consists for the avoue, representative of a client, in carrying out on his behalf the procedural acts required by the case and in helping the development of the proceedings' (Guillien and Vincent, Lexique de Termes Juridiques).--Ed. FN18 'Officiers ministeriels', i.e. officers of the court (cf. 'solicitors of the Supreme Court') who minister to the needs of litigants.--Ed. Allocation by the court [FN19] and legal aid do not form part of the exercise of official authority. They are, on the contrary, burdens, servitudes imposed on avocats in the interest of the defence of the rights of individuals before the courts. FN19 'Commission d'office'. There remains then the membership of a Bar association, local or national, the council of which has a power to decide on applications for admission, an internal regulatory power and a disciplinary power. But these prerogatives of the Bar association do not belong to the advocates. They belong to the organ charged by the law to administer the profession and we know that in this respect the organisation of other professions is no different in several countries of the Common Market, whether they be doctors, pharmacists, veterinary surgeons, architects, or even accountants. While it may be true that the corporate organs thus have, in so far as their national law gives it them, certain prerogatives falling outside those of the ordinary law, the only members of the profession who can be regarded as participating in the exercise of their authority are those who, usually elected by

their fellows, are members of the organs. The question is therefore whether, in his capacity as member of the Council of his Bar association, an advocate occasionally exercises an activity falling under Article 55.*323 The mere fact of being inscribed on the roll certainly does not entail that consequence. I do not think that the participation of the advocates in the election of the batonnier (chairman) or members of the Council of the Bar Association can be regarded as forming exercise of official authority. It is different when an advocate is asked to sit on a bench, as inter alia the Belgian Judicature Act and the law of other member-States provide. But is that really an activity of the advocate as such? In going up onto the bench next to the judges, really he loses his character of advocate. He becomes for the moment a judge and it is in that capacity, as member of the court, that he then participates in the exercise of official authority. It can be said then that the call to make up a court, which can be made to advocates, should be reserved to nationals, as incidentally it was reserved, in France for example, to male avocats when women were not yet admitted onto the bench. In any case, and even if it is considered to be an activity within the meaning of Article 55, such occasional participation in the power to render justice--and no longer solely to assist it--is not exclusively that of avocats: in some countries traders are called upon to sit on commercial tribunals, workers and employers on labour tribunals; in France landlords and farmers or tenant farmers sit on the joint tribunals [FN20] for agricultural land. FN20 'Tribunaux paritaires', i.e. where membership is divided equally between representatives or appointees of opposing social groups, e.g. landlords and tenants. Likewise, it does not seem possible to consider that the power which some national laws give to advocates to be integrated directly into the judiciary after having acquired a certain seniority in the exercise of their profession constitutes an activity connected with official authority since, if he is appointed judge, the advocate loses precisely his character of member of a profession. Finally, can anyone fail to see how the profession of advocate is antipathic to the exercise of official authority? One of the essential traits of this profession lies in its independence-- independence of the advocate himself and independence of the Bar Association to which he belongs as against the executive power--and who, in any of the member-States of a community based on the law, would dream of questioning that independence so highly proclaimed and jealously preserved by the Bars. The fact that in carrying out their noble mission advocates thereby make an irreplaceable contribution to the service of justice, that thereby they are subjected to exacting duties, to strict professional rules and to services which are sometimes heavy, in no way alters the fact that they constitute a profession,

subject therefore to the principle of freedom of establishment imposed by Article 52 of theRome Treaty*324 , to which Article 55 makes merely a strictly limited exception. I conclude therefore that you should hold: 1. that Article 52 of the Treaty instituting the European Economic Community produces, as regards the prohibition of all discrimination based on nationality, direct effects in the relations between the member-States and their citizens and creates for individuals rights which the national courts have the duty to protect; 2. that within the meaning of Article 55 of the Treaty only such activities may be excluded from the freedom of establishment, whose attainment constitutes the essential objective of Article 52, as imply, through participating even occasionally in the exercise of official authority, the putting into force of the prerogatives of public power outside the ordinary law; the fact that such activities may be carried out within the context of a profession like that of advocate is not such as to exclude that profession from the field of application of Article 52, so long at least as they are severable from its normal exercise. JUDGMENT (Drafting judge: Pescatore J.) [1] By order dated 21 December 1973, filed at the Registry on 9 January 1974, the Conseil d'Etat of Belgium raised two questions under Article 177 of the EEC Treaty on the interpretation of Articles 52 and 55 of the EEC Treaty relating to the right of establishment in relation to the practice of the profession of avocat. [2] These questions had been raised in the context of an action brought by a Dutch national, the holder of the legal diploma giving the right to take up the profession of avocat in Belgium, who has been excluded from that profession by reason of his nationality as a result of the Royal Decree of 24 August 1972 relating to the title and exercise of the profession of avocat ([1970] Moniteur Belge 9060). On the interpretation of Article 52 of the EEC Treaty [3] The Conseil d'Etat inquires whether Article 52 of the EEC Treaty is, since the end of the transitional period, a 'directly applicable provision' despite the absence of directives as prescribed by Article 54 (2) and 57 (1) of the Treaty. [4] The Belgian and Irish Governments have argued, for reasons largely in agreement, that Article 52 does not have such an effect. [5] Taken in the context of the Chapter on the right of establishment, to which reference is expressly made by the wording 'within the framework of the provisions set out below', this Article, in view of the complexity of the subject, is said to constitute only the expression of a simple principle, the implementation of which is necessarily subject to a set of complementary provisions, both Community and national, provided for by Articles 54 and 57. *325 [6] The form chosen by the Treaty for these implementing acts--the establishment of a 'general programme', implemented in turn by a set of

directives--confirms, it is argued, that Article 52 does not have a direct effect. [7] It is not for the courts to exercise a discretionary power reserved to the legislative institutions of the Community and the member-States. [8] This argument is supported in substance by the British and Luxembourg Governments, as well as by the Ordre National des Avocats de Belgique, the intervening party in the main action. [9] The plaintiff in the main action, for his part, states that all that is in question in his case is a discrimination based on nationality by reason of the fact that he is subject to conditions of admission to the profession of avocat which are not applicable to Belgian nationals. [10] In this respect (he submits) Article 52 is a clear and complete provision, capable of producing a direct effect. [11] The German Government, supported in substance by the Dutch Government and citing the judgment given by this Court on 16 June 1966 in Alfons Lutticke GmbH v. Hauptzollamt Sarrelouis (57/65), considers that the provisions which impose on member-States an obligation which they have to fulfil within a particular period, become directly applicable when, on the expiration of this period, the obligation has not been fulfilled. [12] At the end of the transitional period, the member-States no longer have the possibility of maintaining restrictions on the freedom of establishment, since Article 52 has, as from this period, the character of a provision which is complete in itself and legally perfect. [13] In these circumstances the 'general programme' and the directives provided for by Article 54 were of significance only during the transitional period, since the freedom of establishment was fully attained at the end of it. [14] The Commission, in spite of doubts which it experiences on the subject of the direct effect of the provision to be interpreted--both in view of the reference by the Treaty to the 'general programme' and to the implementing directives and by reason of the tenor of certain liberalising directives already taken, which do not attain in every respect perfect equality of treatment--considers, however, that Article 52 has at least a partial direct effect in so far as it specifically prohibits discrimination on grounds of nationality. [15] Article 7 of the Treaty, which forms part of the 'principles' of the Community, provides that within the scope of application of the Treaty and without prejudice to any special provisions contained therein, 'any discrimination on grounds of nationality shall be prohibited'. [16] Article 52 provides for the implementation of this general provision in the special sphere of the right of establishment. *326 [17] The words 'within the framework of the provision set out below' refer to the Chapter relating to the right of establishment taken as a whole and require, in consequence, to be interpreted in this general context. [18] After having stated that 'restrictions on the freedom of establishment of nationals of a member-State in the territory of another member-State shall be abolished by progressive stages in the course of the transitional period', Article 52 expresses the guiding principle in the matter by providing that freedom of establishment shall include the right to take up and pursue activities as

selfemployed persons 'under the conditions laid down for its own nationals by the law of the country where such establishment is effected'. [19] For the purpose of achieving this objective by progressive stages during the transitional period Article 54 provides for the drawing up by the Council of a 'general programme' and, for the implementation of this programme, directives intended to attain freedom of establishment in respect of the various activities in question. [20] Besides these liberalising measures, Article 57 provides for directives intended to ensure mutual recognition of diplomas, certificates and other evidence of formal qualifications and in a general way for the co-ordination of laws with regard to establishment and the pursuit of activities as self-employed persons. [21] It appears from the above that, within the system of the chapter on the right of establishment, the 'general programme' and the directives provided for by the Treaty are intended to perform two functions, the first being to eliminate during the transitional period the obstacles which hinder the attainment of freedom of establishment, the second consisting in introducing into the laws of the member-States a body of provisions aimed at facilitating the effective exercise of such freedom, with a view to favouring economic and social interpenetration within the Community in the field of self-employed activities. [22] This second objective is the one referred to, first, by certain provisions of Article 54 (3), relating in particular to co-operation between the competent authorities in the member-States and adjustment of administrative procedures and practices, and, secondly, by the set of provisions in Article 57. [23] The effect of the provisions of Article 52 must be decided within the framework of this system. [24] The rule on equal treatment with nationals is one of the fundamental legal provisions of the Community. [25] As a reference to a set of legislative provisions effectively applied by the country of establishment to its own nationals, this rule is, by its essence, capable of being directly invoked by nationals of all the other member-States. *327 [26] In laying down that freedom of establishment shall be attained at the end of the transitional period, Article 52 thus imposes an obligation to attain a precise result, the fulfilment of which had to be made easier by, but not made dependent on, the implementation of a programme of progressive measures. [27] The fact that this progression has not been adhered to leaves the obligation itself intact beyond the end of the period provided for its fulfilment. [28] This interpretation is in accordance with Article 8 (7) of the Treaty, according to which the expiry of the transitional period shall constitute the latest date by which all the rules laid down must enter into force and all the measures required for establishing the Common Market must be implemented. [29] It is not possible to invoke against such an effect the fact that the Council has failed to issue the directives provided for by Articles 54 and 57 or the fact that certain of the directives actually issued have not fully attained the objective of non-discrimination required by Article 52. [30] After the expiry of the transitional period the directives provided for by the

Chapter on the right of establishment have become superfluous with regard to implementing the rule on nationality, since this is henceforth sanctioned by the Treaty itself with direct effect. [31] These directives have however not lost all interest since they preserve an important scope in the field of measures intended to make easier the effective exercise of the right of freedom of establishment. [32] It is right therefore to reply to the question raised that, since the end of the transitional period, Article 52 of the Treaty is a directly applicable provision despite the absence in a particular sphere, of the directives prescribed by Articles 54 (2) and 57 (1) of the Treaty. On the interpretation of Article 55 of the EEC Treaty [33] The Conseil d'Etat has also requested a definition of what is meant in the first paragraph of Article 55 by 'activities which in that State are connected, even occasionally, with the exercise of official authority'. [34] More precisely, the question is whether, within a profession such as that of avocat, only those activities inherent in this profession which are connected with the exercise of official authority are excepted from the application of the Chapter on the right of establishment, or whether the whole of this profession is excepted by reason of the fact that it comprises activities connected with the exercise of this authority. [35] The Luxembourg Government and the Ordre National des Avocats de Belgique consider that the whole profession of avocat is*328 exonerated from the rules in the Treaty on the right of establishment by the fact that it is connected organically with the functioning of the public service of the administration of justice. [36] This situation (it is argued) results both from the legal organisation of the Bar, involving a set of strict conditions for admission and discipline, and from the functions performed by the avocat in the context of judicial procedure where his participation is largely obligatory. [37] These activities, which make the advocate an indispensable auxiliary of the administration of justice, form a coherent whole, the parts of which cannot be separated. [38] The plaintiff in the main action, for his part, contends that at most only certain activities of the profession of avocat are connected with the exercise of official authority and that they alone therefore come within the exception created by Article 55 to the principle of free establishment. [39] The German, Belgian, British, Irish and Dutch Governments, as well as the Commission, regard the exception contained in Article 55 as limited to those activities alone within the various professions concerned which are actually connected with the exercise of official authority, subject to their being separable from the normal practice of the profession. [40] Differences exist, however, between the Governments referred to as regards the nature of the activities which are thus excepted from the principle of the freedom of establishment, taking into account the different organisation of the

profession of avocat from one member-State to another. [41] The German Government in particular considers that by reason of the compulsory connection of the avocat with certain judicial processes, especially as regards criminal or public law, there are such close connections between the profession of avocat and the exercise of judicial authority that large sectors of this profession, at least, should be excepted from freedom of establishment. [42] Under the terms of the first paragraph of Article 55 the provisions of the Chapter on the right of establishment shall not apply 'so far as any given member-State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority'. [43] Having regard to the fundamental character of freedom of establishment and the rule on equal treatment with nationals in the system of the Treaty, the exceptions allowed by the first paragraph of Article 55 cannot be given a scope which would exceed the objective for which this exemption clause was inserted. [44] The first paragraph of Article 55 must enable member-States to exclude non-nationals from taking up functions involving the exercise of official authority which are connected with one of the activities of self-employed persons provided for in Article 52. *329 [45] This need is fully satisfied when the exclusion of nationals is limited to those activities which, taken on their own, constitute a direct and specific connection with the exercise of official authority. [46] An extension of the exception allowed by Article 55 to a whole profession would be possible only in cases where such activities were linked with that profession in such a way that freedom of establishment would result in imposing on the member-State concerned the obligation to allow the exercise, even occasionally, by non-nationals of functions appertaining to official authority. [47] This extension is on the other hand not possible when, within the framework of an independent profession, the activities connected with the exercise of official authority are separable from the professional activity in question taken as a whole. [48] In the absence of any directive issued under Article 57 for the purpose of harmonising the national provisions relating, in particular, to the profession of avocat, the practice of this profession remains governed by the law of the various member-States. [49] The possible application of the restrictions on freedom of establishment provided for by the first paragraph of Article 55 must therefore be considered separately in connection with each member-State having regard to the national provisions applicable to the organisation and the practice of this profession. [50] This consideration must however take into account the Community character of the limits imposed by Article 55 on the exceptions permitted to the principle of freedom of establishment in order to avoid the effectiveness of the Treaty being defeated by unilateral provisions of member-States. [51] Professional activities involving contacts, even regular and organic, with the courts, including even compulsory co-operation in their functioning, do not constitute, as such, connection with the exercise of official authority. [52] The most typical activities of the profession of avocat, in particular, such as

consultation and legal assistance and also representation and the defence of parties in court, even when the intervention or assistance of the avocat is compulsory or is a legal monopoly, cannot be considered as connected with the exercise of official authority. [53] The exercise of these activities leaves the discretion of judicial authority and the free exercise of judicial power intact. [54] It is therefore right to reply to the question raised that the exception to freedom of establishment provided for by the first paragraph of Article 55 must be restricted to those of the activities referred to in Article 52 which in themselves involve a direct and specific connection with the exercise of official authority. [55] In any case it is not possible to give this description, in the context of a profession such as that of avocat, to activities such as consultation and legal assistance or the representation and defence of*330 parties in court, even if the performance of these activities is compulsory or there is a legal monopoly in respect of it. Costs [56] The costs incurred by the Government of the Kingdom of Belgium, the Government of the Federal Republic of Germany, the Government of Ireland, the Government of the Grand Duchy of Luxembourg, the Government of the Kingdom of the Netherlands, the Government of the United Kingdom of Great Britain and Northern Ireland and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. [57] Since these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before a national court, costs are a matter for that court. Order On those grounds, THE COURT, in answer to the questions referred to it by the Conseil d'Etat of Belgium, section d'administration, IIIe Chambre, by order dated 21 December 1973, HEREBY RULES: 1. Since the end of the transitional period Article 52 of the Treaty is a directly applicable provision, despite the absence, in a particular sphere, of the directives prescribed by Articles 54 (2) and 57 (1) of the Treaty. 2. The exception to freedom of establishment provided for by the first paragraph of Article 55 must be restricted to those of the activities referred to in Article 52 which in themselves involve a direct and specific connection with the exercise of official authority; it is not possible to give this description, in the context of a profession such as that of avocat, to activities such as consultation and legal assistance or the representation and defence of parties in court, even if the performance of these activities is compulsory or there is a legal monopoly in respect of it.

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