Gebhard decision

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In the Gebhard decision (ECJ case C-55/94, also: Gebhard judgment ) of 1995, the European Court of Justice (ECJ) laid down basic regulations for the interpretation of the freedom to provide services and freedom of establishment for lawyers within the meaning of Article 56 TFEU (ex- Article 49 of the EC Treaty and Article 59 of the EC Treaty ).

Special European legal requirements

Directive 77/249 / EEC (“Lawyers' Services Directive), which was in force at the time of the Gebhard decision, applies to the activities of lawyers in the form of services ( ital . : con carattere di temporaneità ). Lawyers providing services have the professional title valid in the language or one of the languages ​​of the country of origin of the member state in which they are established (for Mr Gebhard: Germany), stating the professional organization to which they are responsible or the court to which they are after permitted by the regulations of this state (Article 3).

Directive 77/249 / EEC distinguishes between:

  • activities related to the representation or defense of a client in the field of justice or before authorities and
  • all other activities.

When performing the activities of representation or defense, the lawyer must comply with the ethical rules of the host country (here: Italy) in addition to the obligations incumbent on him in the home country. For the exercise of all other activities, the lawyer remains subject to the conditions and professional rules applicable in the country of origin. In addition, he must comply with the rules applicable in the host country on the exercise of the profession, regardless of its origin, in particular with regard to the incompatibility between the activities of the lawyer and other activities in that country, professional secrecy, relations with colleagues, the prohibition of legal counsel for parties with conflicting interests by the same lawyer and self-promotion.

According to Article 4 (1) of Directive 77/249 / EEC, the lawyer providing the service does not have to be resident in the host Member State or be a member of a professional organization in that country (here the Milan Bar Association).

Characteristics of a service

Characteristics of a service within the meaning of the Gebhard decision are also for legal services:

  • Freelance activity (in other contexts this can also be a commercial, commercial, manual activity),
  • Participation in economic life (as with all fundamental freedoms ) and
  • Provision of services for profit with the intention of making a profit.

Facts and subject of dispute

Mr. Gebhard is a German citizen who has been entitled to practice as a lawyer in Germany since August 3, 1977 . He is admitted to the bar in Stuttgart and worked as a freelancer in an office community . At the time of the decision, he did not have his own law firm in Germany.

He has lived in Italy since March 1978, where he lives with his wife, an Italian national, and their three children. Mr Gebhard's income is fully taxed in Italy, where he is domiciled.

Mr. Gebhard had worked in Italy since March 1, 1978. Initially as an employee ( ital . : con un rapporto di libera collaborazione ) in a law firm in Milan and then, from January 1, 1980 to the beginning of 1989, as a partner ( associato ) in this law firm. He is not blamed for this activity.

On July 30, 1989, Mr. Gebhard opened his own law firm in Milan, Studio legal Gebhard ( Eng : Gebhard law firm ), in which Italian avvocati and procuratori work with him. In response to a written question from the Court of Justice, Mr Gebhard stated that he would entrust you with the occasional legal representation of Italian clients in Italy.

Mr Gebhard explains to the ECJ that in Italy he essentially practices out-of-court activities of assistance and representation of German-speaking people (which corresponds to 65% of his turnover), as well as the activity of representing Italian-speaking people in Germany or Austria (which corresponds to 30% of his turnover ) out. The remaining 5% concern the support of Italian colleagues who deal with questions of German law for their clients. So he worked 100% as a lawyer and had no other professional activity besides.

Complaints against Gebhard were lodged with the board of the Milan Bar Association by some Italian colleagues. They accused him:

  • to have used the term avvocato in the letterhead of his professional stationery,
  • to have appeared directly before the Pretura and the Tribunale Milan under the name avvocato and
  • to have carried out his professional activities from Studio legal Gebhard (Gebhard law firm).

Gebhard was forbidden by the board of the Milan Bar Association to use the term avvocato . It was decided to initiate disciplinary proceedings against Gebhard. He was charged with breaching his obligations under Italian Law 31/82 by exercising a permanent professional activity in Italy from his own law firm , using the designation avvocato .

On October 14, 1991, Mr. Gebhard applied to the board of directors of the Milan Bar Association for admission to the bar. This application was based on Council Directive 89/48 / EEC of December 21, 1988 on the general system for the recognition of higher education diplomas which have completed at least three years of professional training and on the fact that he was completing professional training in Italy of more than ten years have. Apparently the board of directors of the Bar Association did not formally decide on this application.

The disciplinary proceedings initiated on September 19, 1991 ended with the decision of November 30, 1992, whereby the board of the Milan Bar Association against Mr. Gebhard the sanction of the temporary refusal of the practice of the profession ("sospensione dell 'esercizio dell' attività professionale") for six Months imposed.

Mr Gebhard appealed against this decision to the Consiglio nazionale forense , making it clear that this was also against the tacit rejection of his application for admission as a lawyer. In the context of that appeal, he argued in particular that Directive 77/249 / EEC gave him the right to pursue his professional activities from his own law firm in Milan.

The Consiglio nazionale forense suspended the proceedings and asked the ECJ to answer the following questions by means of the preliminary ruling procedure :

  1. Is Article 2 of the implementation of the EEC Directive of March 22, 1977, Italian Law No. 31 of February 9, 1982 on the freedom to provide services by lawyers who are nationals of a Member State of the European Communities, according to which it is not permitted in the territory to set up a chancellery or a main or subsidiary seat of the Republic , compatible with the regulation of the above-mentioned directive, it is taken into account that this does not contain any indication that the possibility of setting up a chancellery can be seen as an indication of the lawyer's intention, to exercise the activity not only temporarily or occasionally, but permanently?
  2. What criteria are to be used for assessing the temporary character with regard to the persistence and repetition of the services of the lawyer acting under the provisions of the aforementioned directive?

Decision of the ECJ

Before making its decision, the ECJ set out the basis for the applicable provisions:

  1. The provisions of the chapter on services are subsidiary to those of the chapter on the right of establishment;
  2. The right of establishment provided for in Articles 49 to 55 TFEU (Articles 52 to 58 of the EEC Treaty and Articles 43 to 48 of the EC Treaty) is available to both legal persons and natural persons who are nationals of a Member State of the Community. It includes, subject to the exceptions and conditions provided, taking up and pursuing self-employed activities of all kinds, the establishment and management of businesses and the establishment of agencies, branches or subsidiaries in the territory of any other Member State;
  3. A person can be established in more than one Member State within the meaning of the Treaty;
  4. The concept of establishment is a very broad concept that implies the possibility for a Union citizen to participate in a stable and continuous manner in the economic life of a Member State other than his / her home country and to benefit from it, thereby increasing the economic and social interdependence within the Community in the field of independent activities are encouraged;
  5. The rules on services stipulate that the provider of a service goes to another Member State and carries out his activity there temporarily; The temporary nature of the activities is to be assessed not only taking into account the duration of the service, but also their frequency, regular recurrence or continuity. The temporary nature of the service does not exclude the possibility for the service provider within the meaning of the contract to equip itself with a certain infrastructure (including an office, a practice or a law firm) in the host Member State, insofar as this infrastructure is necessary for the provision of the service in question. The situation of Mr. Gebhard's professional practice is different from that of a temporary provision of services. As a national of one Member State, Gebhard would work in a stable and continuous manner in another Member State, in which he would address the nationals of that State from his professional domicile. It therefore falls under the provisions of the EC Treaty chapter on the right of establishment and not under those in the chapter on services.
  6. It is not necessary for Mr. Gebhard to be a member of the profession of this state or to work in cooperation or in association with members of this profession in order to fall under the provisions of the freedom of establishment. Belonging to a profession is not a constitutive element for the establishment. The right of establishment is to be assessed taking into account the activities that a Union citizen intends to pursue in the territory of the host Member State.

The ECJ ruled on the questions of the Consiglio nazionale forense :

  • that the temporary nature of the service referred to in Article 58 TFEU (Article 60 (3) of the EEC Treaty or Article 50 of the EC Treaty) is taken into account
    • their duration,
    • their frequency,
    • their regular return and
    • their continuity is to be assessed;
  • that the service provider within the meaning of the contract in the host Member State can, but does not have to, equip itself with the infrastructure necessary for the provision of its service;
  • that a national of a Member State who has a stable and continuous professional activity in another Member State, in which he addresses, among others, the nationals of that State from his professional domicile, is subject to the provisions of the chapter on the right of establishment and not to those of the chapter falls over the services;
  • that the possibility for a national of a Member State to exercise his right of establishment and the conditions for exercising this must be assessed taking into account the activities he intends to pursue in the territory of the host Member State;
  • that, if the taking up of a specific activity is not subject to any regulation in the host State, the national of any other Member State has the right to settle and exercise that activity in the territory of the first-mentioned State. However, if taking up or exercising this activity in the host Member State is subject to certain conditions, the national of another Member State who wishes to exercise this activity must in principle meet these conditions;
  • that national measures that may hinder or make less attractive the exercise of the fundamental freedoms guaranteed by the treaty must meet four conditions (also known as the Gebhard formula ):
    • they must be applied in a non-discriminatory manner,
    • they must be justified on imperative reasons of general interest,
    • they must be suitable to ensure the achievement of the objective pursued by them, and
    • they must not go beyond what is necessary to achieve this goal;
  • that the Member States must also take into account the equivalence of diplomas and, if necessary, carry out a comparative examination of the knowledge and qualifications required by their national regulations and those of the person concerned.

Exceeding the freedom to provide services

According to the case law of the ECJ in the case of Gebhard, the limit of the freedom to provide services or a possible exceeding of the limit is to be assessed as follows:

  • what duration,
  • what frequency,
  • which regular recurrence and
  • what continuity of activity,
  • what will and
  • what interest,

for the exercise of a permanent or only temporary activity in the specific case. These points can only be assessed on a case-by-case basis in order to distinguish them from the branch.

Scope of the decision

The Gebhard decision was issued on the freedom to provide services under the EGV (now: TFEU). The extent to which an application can or may also take place under the law of the European Economic Area (Article 36 et seq. EEA Agreement) has not yet been scientifically investigated and the EFTA Court of Justice has not given an opinion on this. The application to the EEA Agreement has therefore not yet been clarified.

The extent to which this decision is applicable within the framework of Union law to people who, like Mr. Gebhard, do not only work 100% in one profession (here lawyer), has not yet been clarified.

Web links

Individual evidence

  1. ↑ Judgment of the Court of Justice of 30 November 1995. Reinhard Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano. Reference for a preliminary ruling: Consiglio Nazionale Forense - Italy.
  2. ↑ Article 56 of the TFEU (ex Article 49 of the EC Treaty or Article 59 of the EEC Treaty ) has changed only very slightly since it was adopted in 1957. See: Antonius Opilio : EUV | EGV | AEU , Dornbirn 2008, Edition Europa Verlag, p. B-65.
  3. ↑ Directive 77/249 / EEC of the Council of March 22, 1977 to facilitate the effective exercise of the freedom to provide services by lawyers OJ. No. L 078 of March 26, 1977, p. 17.
  4. ↑ Rz 13 of the Gebhard decision.
  5. ^ Margin no. 14 of the Gebhard decision.
  6. ↑ Article 4 Paragraph 2 of Directive 77/249 / EEC.
  7. ↑ Article 4, paragraph 4 of Directive 77/249 / EEC.
  8. ↑ See margin no. 15 of the Gebhard decision.
  9. ↑ List according to: Von der Groeben - Schwarze (Ed.): Treaty on European Union and Treaty establishing the European Community. Baden-Baden 2003, Nomos Verlag, 6th edition, Volume 1, Article 50.
  10. ↑ Legal services are those "which are usually provided for a fee" and which are largely not "subject to the regulations on the free movement of goods and capital and on the free movement of persons" (Article 36 (1) of the EEA Agreement or 56 (1)). 1 TFEU). Article 4 No. 1 of Directive 2006/123 / EC stipulates that a branch exists if the service provider actually pursues an economic activity covered by Article 49 TFEU (43 ECT) for an indefinite period and by means of a fixed infrastructure from which the business activity of the service provision is actually carried out.
  11. ^ Rz 3 of the Gebhard decision.
  12. ↑ Rz 4 of the Gebhard decision.
  13. ^ Rz 5 of the Gebhard decision.
  14. ↑ Rz 6 of the Gebhard decision.
  15. ^ Rz 7 of the Gebhard decision.
  16. ^ Margin no.8 of the Gebhard decision.
  17. ↑ Gebhard lawyer should have only used the German term lawyer according to Directive 77/249 / EEC .
  18. ↑ Rz 9 of the Gebhard decision. Italian Law 31/82 implements Directive 77/249 / EEC. See also margin no.17 of the Gebhard decision.
  19. ↑ OJ. 1989, L 19, p. 16.
  20. ^ Rz 10 of the Gebhard decision.
  21. ↑ Rz 11 of the Gebhard decision.
  22. ↑ Rz 12 of the Gebhard decision.
  23. ^ Margin nos. 22 to 27 of the Gebhard decision.
  24. ↑ See, for example: ECJ judgment of July 12, 1984 in the case 107/83, Klopp, ECR 1984, 2971, para. 19th
  25. ↑ See, for example: ECJ judgment of June 21, 1974 in Case 2/74, Reyners, 1974 ECR, 631, para. 21st
  26. ↑ Rz 39, second paragraph of the Gebhard decision.
  27. ↑ Rz 28 of the Gebhard decision.
  28. ↑ Rz 29 of the Gebhard decision.
  29. ↑ Rz 31 of the Gebhard decision.
  30. ↑ Rz 32 of the Gebhard decision.
  31. ↑ Rz 39 of the Gebhard decision.
  32. ↑ In the case Ramrath, C-106/91, Coll. 1992, I-3351, the ECJ even stated that this creation of an infrastructure is not only a right, but can also be made an obligation. However, in the case of lawyers, it is forbidden to request such a registered office (see also ECJ case Commission / Italy, C-145/99, Coll. 2002, I-2235).
  33. ↑ Rz 35 f of the Gebhard judgment: The taking up and exercising of some self-employed activities can, however, be made dependent on the observance of certain legal and administrative regulations justified by the general interest, such as the regulations on organization, qualification, professional duties, control and liability (cf. Judgment of 28 April 1977 in Case 71/76, Thieffry, 1977 ECR, 765, paragraph 12). In particular, these regulations may provide that the exercise of a specific activity, depending on the situation, is reserved for holders of a diploma, examination certificate or other qualification, members of a specific profession or persons who are subject to a specific order or control. They can also prescribe the requirements for the use of job titles such as the "avvocato". If the taking up or pursuit of a specific activity in the host Member State is subject to such conditions, a national of another Member State who wishes to pursue that activity must in principle comply with these conditions. Article 57 therefore provides for the Council to issue directives - such as the aforementioned Directive 89/48 - for the mutual recognition of diplomas, examination certificates or other evidence of qualifications and for the coordination of national provisions on taking up and exercising self-employed activities.
  34. ↑ See also: ECJ judgment of March 31, 1993 in the case C-19/92, Kraus, ECR 1993, I-1663, para. 32. There is therefore not only the requirement of equal treatment with nationals, but also a prohibition of disabilities.
  35. ↑ See ECJ judgment of 7 May 1991 in case C-340/89, Vlassopoulou, ECR 1991, I-2357, para. 15 f; ECJ judgment of 28 April 1977 in the case 71/76, Thieffry, ECR 1977, 765, para. 19 and 27.
  36. ↑ See also Directive 98/5 / EC to facilitate the establishment of lawyers.