Opinion of Mr Advocate General Van Gerven delivered on 28 November 1990

1 Original language: Dutch.

2 Law of 13 December 1985, Bundesgesetzblatt (BGBl.) III, p. 303.

3 BGBl. 1959, I, p. 565, as amended by the Law of 13 December 1989, BGBl. 1989, L p. 2135.

4 The current version is that published on 19 April 1972, BGBl., I, p. 713.

5 Council Directive of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (OJ 1977 L 78, p. 17).

6 Council Directive of 21 December 1988 (OJ 1989 L 19, p. 16).

7 In implementation of the directive of 6 July 1990 the Federal Republic has adopted a Law (see BGBl. 1990, I, p. 1349), which likewise enters into force only on 1 January 1991 (see Article 6 of the Law).

8 Judgment of 12 July 1984 in Case 107/83 Ordre dei Avocali au Barreau de Paris v klopp (l984] ECR 2971.

9 Judgment of 19 January 1988 in Case 292/86 Gullung v Conseil de l'Ordre del Avocali du Barreau de Colmar [1988] ECR 111.

10 First established in the judgment of 12 February 1974 in Case 152/73 Sorjin v Deutsche Bundespost [1974] ECR 153, at paragraph II, (national legislation may not subject workers to different treatment on the ground that they do not reside within national territory), recently affirmed in the judgment of 30 May 1989 in Case 33/88 Alluci Università degli Studi di Venezia [1989] ECR 1591, at paragraph 11, (tne restriction contained in an Italian Law on the duration of the employment of foreign language teachers at the University — a restriction which does not apply to the other staff of the universities — constitutes indirect discrimination on the ground of nationality because only 25% of the teachers concerned are of Italian nationality).

11 See the judgment in Sotgiu, cited in the previous footnote, at paragraph 11.

12 The lawyer in question had earlier been struck off the register of the French Bar Association for disciplinary reasons.

13 See paragraph 28 of the judgment.

14 Judgment of 7 July 1988 in Joined Cases 154/87 and 155/87 RSVZ v Wolf and Others [1988] ECR 3897. See also the analogous judgment of the same date in Case M3/87 Stanton v Inosti [1988] ECR 3877.

15 See paragraphs 8 and 9 of the judgment.

16 See paragraphs 11 and 12 of the judgment.

17 See paragraph 15 of the judgment.

18 Judgment of 17 December 1981 in Case 279/80, criminal proceedings against Alfred John Webb [1981] ECR 3305.

19 See paragraph 18 of the judgment.

20 See paragraph 20 of the judgment. In the earlier judgment in Joined Cases 110/78 and 111/78 Van Wesemael [1979] ECR 35, the Court had already held that the requirement of a licence for the provision of manpower services is not justified if the provider of the manpower services in the Member Sute of establishment is already the holder of a licence issued subject to conditions which are comparable with those laid down by the Member Sute in which the service is provided, and when all forms of manpower services provision are properly supervised in the Member Sute of establishment (see paragraphs 24 to 30 of the judgment).

21 Judgment of 17 December 1981 in Case 272/80 [1982] ECK 3277, affirmed in the judgment of 11 May 1989 in Case 25/88 Wurmer[1989] ECR 1105.

22 See paragraphs 13 to 15 of the judgment.

23 See the judgment of 20 February 1979 in Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein (Cassis dc Dijon) [1979] ECR 649, at paragraph 8, consistently affirmed since then, in inter alia, the judgment of 14 July 1988 in Case 407/85 3 Glocken and Others v USL Centro-Sud and Others [1988] ECR 4233, at paragraphs 9 to 11.

24 See the judgment of 4 December 1986 in Case 205/84 Commission v Federal Republic of Germany [1986] ECR 3755, at paragraph 25. See also the Van Wesemael judgment, already cited in footnote 19, the Webb judgment already cited in footnote 17 and the recent judgment of 27 March 1990 in Case C-l 13/89 Rush Portuguesa [1990] ECR I-1417.

25 Already mentioned above in footnote 4.

26 In that connection it should be pointed out that Mrs Vlassopoulou was not contradicted by the German Government and the defendant in the main proceedings when she argued that large areas of Greek civil law and the law of civil procedure are to a considerable extent similar to German law.

27 Judgment of 28 April 1977 in Case 71/76 Jean Thicffry v Conseil de l'Ordre des Avocats à Lt Cour de Pans [1977] ECR 765.

28 See paragraph 2 of the judgment.

29 See paragraph 19 of the judgment.

30 See paragraphs 15 to 18 of the judgment.

31 See paragraph 23 of the judgment.

32 First affirmed in the judgment of 21 June 1974 in Case 2/74 Rcyntn v Belgium [1974] ECR 631, at paragraphs 3 to 32.

33 See, in addition to the Reynen judgment mentioned in the preceding footnote, the Thiiffry judgment already mentioned in footnote 26, at paragraph 18, and the judgment of 28 June 1977 in Case 11/77 Patrick [1977] ECR 1199), at paragraphs 10 to 13, affirmed in the judgment of 15 October 1987 in Case 222/86 Heyltns [1987] ECR 4097, at paragraphs 11 to 12.

34 See the judgment in Unecte/v Rtynen, mentioned above at paragraphs 30 to 31.

35 Already mentioned above in footnote 5.

36 The existence of that obligation is also recognized in the fifth recital in the preamble to the directive.

37 See Article 4 of the directive. Normally the applicant is entitled to choose between an adaptation period and an aptitude test. For professions whose practice requires precise knowledge of national law and in respect of which the provision of advice and/or assistance concerning national law is an essential and constant aspect of the professional activity, the host Member State may in derogation from that principle stipulate either an adaptation period or an aptitude test (see Article 4(l)(b) infine).

38 This difficulty also arises in the same manner, according to the judgments in Webb and Fram-Nederlandse Maatschappij voor Biologische Producten, in areas concerning the freedom to provide services and the free movement of goods.

39 See the judgment of 5 March 1980 in Case 265/78 H. Fermenta B. V. v Produklicbap mor Vee en Vlees [1980] ECR 617, at paragraph 10; of 16 December 1976 in Case 33/76 Rewe-Zentralfinanz eG and Another v Landwirtschafiskammer jur das Saarland [19761 ECR 1989, at paragraph 5; of 16 December 1976 in Case 45/76 Comet B. V. v Produktschap voor Siergewassen [1976] ECR 2043, at paragraphs 15 to 16; and of 9 July 1985 in Case 179/84 Bozzetti v Invemizzi SpA and Another [1985] ECR 2301, at paragraph 17. See also the judgment of 19 June 1990 in Case C-213/89 The Queen v Secretary of State for Transport, ex parte Factortame [1990] ECR I-2433.

40 See in that respect the Thieffry judgment, already mentioned in footnote 26, and the Heylens judgment mentioned in footnote 32.

41 I can imagine that there are also other factors which will have to be taken into account. For example, it seems to me likely that, upon Mrs Vlassopoulou's admission to the doctor's degree course at the University of Tübingen, an assessment nad already been made of her earlier academic education and its comparability with the legal education in the Federal Republic. It appears from the Thieffry judgment mentioned above that the national authorities must take account of any such assessment (see paragraphs 20 to 26 of that judgment).

42 Sec Article 37 of the Einigungsvertrag.

43 Ibid.

44 See Annex I, Chapter III, A, Section II, No 2 of the Einigungsvertrag. Admission to the profession of Rechtsanwalt in the German Democratic Republic forms the subjectmatter of the Rechtsanwaltsgesetz enacted on 13 September 1990. See the Gesetzblatt der Deutschen Demokratischen Republik 1990, I, No 61, p. 1504. This Law lays down as a general requirement legal studies at an East German university, if appropriate complemented by practical training (sec Paragraph 4 of the Law). The Einigungsvertrag also offers to inhabitants of the former German Democratic Republic the possibility of taking an aptitude test (see Annex II, Chapter III, A, Section III, No 1(e), and lays down similar arrangements in a number of transitional provisions in favour of trainee lawyers and students from the former German Democratic Republic; some of those provisions are to continue in force until the end of 1992 (see Annex I, Chapter III, A, Section III, 8(y].

45 The current version seems to be that published on 3 September 1971, BGBl. I, p. 1565.

46 In German academic writing the view is propounded that, owing to the fact that Paragraph 112 of the Richtergesetz refers only to the second subparagraph of Paragraph 92 of the Vertriebenengcsetz, recognition under the Richtergesetz of such diplomas in law obtained after 8 May 1945 is not possible. See G. and J. Schmidt-Räntsch, Kommentar zum deutschen Richtergesetz, Fourth Edition, 1988, paragraph 1 on § 112. That does not, however, preclude the criteria developed on the basis of this paragraph from being used as a guide for the assessment of the equivalence of examinations or certificates in general in the examination to be conducted as described in paragraphs 11 to 15.

47 BGBl., I, p. 269.

48 See, for example, the judgment of 17 December 1970 in Case 11/70 Internationalt Handelsgesellschaft [1970] ECR 1125, at paragraph 3, and the judgment of 9 March 1978 in Case 106/77 Simmenthal [1978] ECR 629, at paragraphs 17 and 18.

49 See, for example, the judgment of 14 July 1976 in Joined Cases 3/76, 4/76 and 6/76 Kramer (1976) ECR 1279, at paragraphs 42 to 44, and the judgment of 27 September 1988 in Case 235/87 Mattcucci v Franse Gemeenschap van Bel$ü [i9SS] ECR 5589, at paragraphs 18 and 19, and the operative pan.

50 See the judgment of 20 March 1990 in Case C-21/88 Du Pont de Nemours Italiana v Unità Sanitaria Locale No 2 di Cornara [1990] ECR I-889, at paragraphs 12 and 13.

51 Sec, for example, the judgment of 17 July 1963 in Case 13/63 Italy v Commission [1963] EĆR 165, and the judgment of 23 February 1983 in Case 8/82 Wagner v Balm [1983] ECR 371, at paragraph 18.