OPINION OF MR REISCHL — CASE 65/77 RAZANATSIMBA

Mr President,

Members of the Court,

The exercise of the profession of advocate is governed in France by a Law of 31 December 1971 and the implementing provisions issued thereunder. The conditions laid down therein are inter alia the possession of French nationality, in so far as international agreements do not provide otherwise, the obtention of a Licence en Droit (degree in law) or a Doctorat en Droit (doctorate in law) and a Certificat d'Aptitude à la Profession d'Avocat (qualifying certificate for the profession of advocate) and finally admission to a Bar (barreau) which is always preceded by pupillage (stage). In principle there is a Bar, composed of all admitted advocates and pupils, at each Tribunal de Grande Instance (regional court competent to try major civil cases and less serious criminal cases). It is administered by a Conseil de l'Ordre elected by all admitted advocates. Its task is inter alia to decide applications for admission to pupillage and applications for admission to the Bar. An appeal may be brought before the Combined Chambers of the Cour d'Appel (Court of Appeal) against its decision.

Mr Razanatsimba, a Madagascan national residing in France, who possesses both a Licence en Droit and the Certificat d'Aptitude à la Profession d'Avocat, applied on 9 February 1976 to the Conseil de l'Ordre des Avocats de Lille (Lille Bar Council) to be admitted to pupillage. In this connexion he relied, because he is not of French nationality, upon the Convention Judiciaire Franco-Malgache (Franco-Madagascan Judicial Convention) of 4 June 1973, Article 6 whereof provides that advocates of both Contracting States may provide services in connexion with a specific case even in the country in which they are not admitted to the Bar. In addition he invoked the Lomé Convention concluded between the European Community and its Member States of the one part and 46 African, Caribbean and Pacific States of the other part on 28 February 1975, which entered into force on 1 April 1976, Article 62 of which provides as follows:

In Mr Razanatsimba's view the effect of this prohibition on discrimination is that he must be admitted to pupillage as if he were of French nationality.

This argument, in particular the reference to the Lomé Convention which was also concluded by the Community by Council Regulation No 199/76 (OJ L 25, p. 1) in accordance with Article 238, prompted the Conseil de l'Ordre to stay the proceedings relating to the application and to ask the Court of Justice by order of 14 December 1976 for a preliminary ruling under Article 177 of the EEC Treaty on the interpretation of the abovementioned Article 62 of the Lomé Convention.

As you know, this procedure was not carried out (Case 3/77). In fact the Procureur General appealed against the decision of the Conseil de l'Ordre before the Cour d'Appel, Douai, on the ground that the Conseil de l'Ordre is not empowered to ask for a preliminary ruling under Article 177 of the EEC Treaty because in the case in question it performs not a judicial but a purely administrative function. In addition he claimed that the Cour d'Appel should itself decide the application for admission to pupillage.

The Cour d'Appel found that the Conseil de l'Ordre is not an ordinary court of law but an administrative authority in so far as it has to decide on admission to pupillage and that as such it is not empowered under Article 177 to refer to the Court of Justice requests for interpretation. The abovementioned order for reference was therefore annulled and Case 3/77 was accordingly removed from the Court Register by order of 15 June 1977. The Cour d'Appel further held that, under Article 562 (2) of the Code de Procedure Civil (Judicial Code), it has complete jurisdiction to make a decision on the substance of the case and may therefore itself decide the application for admission. The Cour d'Appel stated with regard to the reasons upon which that application was based that the Franco-Madagascan Convention could not lead to a derogation from Article 11 of the Law of 31 December 1971, according to which French nationality is a condition for admission to pupillage. The Lomé Convention to which the plaintiff also referred must be considered by the French courts as part of Community law. By judgment of 18 May 1977 the Cour d'Appel stayed the proceedings for its part because of uncertainty as to the interpretation of the Convention and referred the following questions, which correspond to those contained in the order for reference submitted by the Council de l'Ordre, to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:

It is in my opinion necessary to state the following with regard to these questions, on which Mr Razanatsimba, the French Government and the Commission have submitted observations:

1 Translated from the German.