Opinion of Advocate General Van Gerven delivered on 13 January 1993

1 Original language: Dutch.

2 This first examination gives access, for example, to occupations such as commercial legal adviser or, as is apparent from the main proceedings, assistant at a university.

3 A detailed description of the German system of professional training for lawyers and of the two State examinations can be found in Lonbay et al, Training lawyers in the European Community, The Law Society, 1990, p. 23 et seq.

4 Since then, a wider general authorization has been declared to be applicable, allowing the use of a number of academic titles, listed in an annex. This does not however appear to include the British LL. M (unlike the Irish LL. M, which is included); see Allgemeine Genehmigung zur Führung von Hochshulgraden, Amtsblatt Wissenschaft und Kunst-Baden-Württemberg, 19 June 1992.

5 Council Directive of 21 December 1988 relating to a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (OJ 1989 L 19, p. 16).

6 The general authorization referred to in footnote 3 is intended to implement this directive in Baden-Württemberg.

7 Council Directive of 18 June 1992 on a second general system for the recognition of higher education diplomas to supplement Directive 89/48/EEC (OJ 1989 209, p. 25).

8 Compare with respect to the free movement of goods, the judgment in Joined Cases 51, to 54/71 N V International Fruit Company and Others v Commission [1971] ECR 1107, paragraph 9.

9 See Lenaerts, K (1991) L'égalité de traitement en droit communautaire, Cahiers de Droit Européen, p. 3, 13.

10 Case 153/73 Sotgiu v Deutsche Bundespost [1974] ECR 153, paragraph 11. See also the judgment in Case 41/84 Pinna v Caisse d'Allocations Familiales de la Savoie, [1986] ECR 1, paragraph 23, and the more recent judgment in Case 33/88 Allué and Coonan v Università degli Studi di Venezia [1989] ECR 1591, paragraphs 10 et seq.

11 The number of Community nationals (compared with the number of Germans) who find themselves in this situation has no bearing, in my view, on the applicability of the principle of abolition of discrimination in Article 48. The issue is whether the national rules are themselves discriminatory. It is sufficient, in this respect, for the rules to be such as to produce discriminatory effects for nationals, however few or many, of other Member States,

12 Judgment in Case 357/89 Raulin v Minister van Onderwijs en Wetenschappen [1992] ECR I-1027, paragraph 10. In point in that case was a very short period of employment: 60 hours over a period of two weeks, as part of a oproepcontract (occasional work, as requested by the employer). See also the judgment in Case C-3/90 Bernini v Minister van Onderwijs en Wetenschappen [1992] ECR I-1071, paragraph 14.

13 Judgment in Case 66/85 Lawrie-Blum v Land Baden-Württemberg [1987] ECR 2121, paragraph 27.

14 In Case 274/80, which was submitted to the Court and subsequently removed from the register, the Commission made a thorough analysis of this point in its written observations of 13 February 1981; it concluded that, during their professional training, the so-called Rechtsreferendare must be regarded as workers, within the meaning of Article 48 of the EEC Treaty, not employed in the public service.

15 See footnote 11, above, paragraph 21 of the judgment.

16 Compare with the Allué and Coonan judgment case cited in footnote 8, above, paragraph 8.

17 Sec the judgment in Case 30/77 Regina v Bouchereau [1977] ECR 1999, paragraph 35.

18 The Court accepts such reasons in exceptional circumstances, in particular where there is a danger of abuse of the freedoms guaranteed in the Treaty, in order, for example, to evade mandatory professional rules. As regards Arricie 59, see judgment in Case 33/74 Van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1974] ECR 1299, paragraph 12 et seq. and as regards (inter alia) Article 48, judgment in Case 115/78 Knoors v Staatssecretaris voor Economische Zaken [1979] ECR 399, paragraph 25.

19 Since the judgment in Case 76/90 Säger v Dennemeyer & Co Ltd [1991] ECR I-4221, paragraph 12 et seq.), it is established that when national provisions are not discriminatory (either covertly or overfly) by nature, but are such as to impede trade between States, they come within the prohibition contained in Article 59. According to the case-law of the Court, what are known as imperative reasons relating to the public interest can only justify provisions which are nondiscriminatory in nature; see judgment in Case 288/89 Stichting Collectieve Antennevoorziening Gouda and Others v Commissariaat voor de Media [1991] ECR I-4007, paragraph 12 et seq.). The present case is concerned with a (covertly) discriminatory provision. It would appear from the judgment in Case 106/91 Ramrath v Ministre de la Justice [1992] ECR I-3351, paragraphs 28 to 31, that those principles also apply with regard to Article 48 of the EEC Treaty.

20 I have in mind Directives 89/48 and 92/51 mentioned above, as well as the European Convention on the Academic Recognition of University Qualifications of 14 December 1959. The convention, prepared in the Council of Europe, was signed by all the Member States of the Community and applies at present in ten of them, the Federal Republic of Germany included.

21 Case 61/89 Bouboucha [1990] ECR I-3551, paragraph 11.

22 Case 115/78, cited in note 17, above.

23 Council Directive 64/427/EEC of 7 July 1964 laying down detailed provisions concerning transitional measures in respect of activities of self-employed persons in manufacturing and processing industries falling within the 151C Major Groups 23-40 (industry and small craft industries) (OJ, English Special Edition 1963-1964, p. 148).

24 See also the Opinion of Advocate General Tesauro in the Singh case (Case C-370/90, not yet published in the ECR, points 5 to 9).

25 The operative part of the judgment is expressly centred on an activity ancillary to medicine, such as osteopathy, reserved, in the Member State concerned, to the holders of a diploma of doctor in medicine. The particularly sensitive nature of this sector is also apparent from Article 57(3) of the EEC Treaty, which provides for a special status for the medical, allied and pharmaceutical professions, as regards harmonization of laws in the field of establishment and the provision of services.

26 See, in particular, the case-law cited in footnote 17.

27 Judgment in Säger cited in note 18, paragraph 12.

28 Judgment in Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377, paragraph 10; see also judgment in Case 186/87 Cowan v Trésor Public [1989] ECR 195, paragraph 20.

29 Judgment in Case 263/86 Belgian State v Humbel [1988] ECR 5365, paragraph 14 et seq.).

30 In this respect, it does not seem necessary to pay particular attention to Article 58 (second paragraph) of the EEC Treaty, which, in the light of Article 66, applies equally to the freedom to provide services. The text cited contains an exception for nonprofit making companies. This expression does not in my view impose a further condition; it merely reflects the concept of services, as found in Article 60. See also the judgment in the case of 4 October 1991, Society for the Protection of Unborn Children Ireland Ltd v Grogan and Others (C-159/90 [1991] I-4685, paragraph 26.

31 Judgment in Case 293/87 Gravier v City of Liège [1985] ECR 593. Since the judgment in the Gravier case, Community policy on vocational training has gready developed.

32 Judgment in Case 24/86 Blaizot v University of Liège and Others [1988] ECR 379; confirmed by the Erasmus judgment: Case 242/87 Commission v Council [1989] ECR 1425, paragraph 25.

33 See judgment in Case 9/74 Casagrande v Landeshauptstadt München [1974] ECR 773, paragraph 6.

34 In other words, Article 7 does not, as Community law now stands, apply to the rules which, while not being discriminatory, restrict the free movement of persons, goods and services in another way.

35 On these two points there is an analogy with what applies in the matter of the free movement of services. Thus, for example, in the judgment in Luisi and Carbone, cited in footnote 27, above, the matter at issue was restriction on payments imposed by the Member State or origin for the recipient of a service who moves abroad.