A recent case involving Italian nationals who gained their legal qualifications in Spain clarifies the position on forum shopping.
The European Court of Justice has just issued another endorsement of lawyers who forum shop for their legal qualification (Cases C-58/13 & C-59/13 Torresi & Torresi). The facts arise out of a special set of circumstances that used to exist between Italy and Spain, but have general application.
Until recently, Spain did not have a bar exam, meaning that lawyers could become lawyers with law degrees alone, and did not have to pass through the equivalent of vocational or practical training before the bar accepted them as members. Not surprisingly, middlemen pursuing a quick buck took advantage of the position: they lured other EU citizens to study in Spain, to obtain a degree which the local bar would consider as sufficient for membership, and then to become Spanish lawyers, before taking their Spanish title back to their homeland in order to become lawyers there in due course.
This was enabled through the lawyers’ mobility directives, which recognise title alone and do not discriminate between national routes to acquiring that title. (Before we in the UK criticise this, we should remember that it is this same system which permits those of our lawyers who have not acquired a law degree – considered shocking by many – to participate within the European legal framework.)
The background to the case is that two Torresis, Angelo Alberto and Pierfrancesco, went through the route I have described.
They first obtained a law degree in Italy. Then they obtained a university degree in Spain. This allowed them to be enrolled as lawyers in the Bar of Santa Cruz in Tenerife. A few months later, they asked the Bar Council of Macerata in Italy to register them as Spanish lawyers. (Under the lawyers’ directives, this would entitle them to become Italian lawyers three years later.)
The Macerata Bar did not make a decision in time. So the two Torresis applied directly to the Italian national bar (Consiglio Nazionale Forense (CNF)). Interestingly, it is at this point that the reference took place, directly from the CNF as a decision-making body to the Court of Justice. The CNF considered that it was not open to the Torresis to rely on the establishment directive (98/5/EC) if the acquisition of the title in Spain had no purpose other than to circumvent Italian law on access to the legal profession.
So, the official question addressed to the court was - if you can follow its winding route - whether the directive prevents member states from refusing, on grounds of abuse of rights, to enter in the Bar Register, in the special section for lawyers qualified abroad, nationals of that member state who, soon after obtaining their professional title in another member state, return to their home member state. More briefly, is forum shopping allowed or not?
(Well, we know it is allowed, because of a previous lawyers’ case involving Spain, Koller – although there the aspiring lawyer was Austrian. The question here was whether it was allowed in the facts of this case.)
The court had to balance the claim that the directive had been abused against the right of citizens to take advantage of the single market. Maybe not surprisingly in view of its previous case law, it came down in favour of freedom of movement.
Regarding abuse, it said that EU law cannot be relied on for abusive or fraudulent ends, and that a member state is entitled to take any measures necessary to prevent its nationals from improperly circumventing national legislation. However, the court said that a finding of abuse requires an objective element (where, despite formal observance of the conditions, the purpose of the rules has not been achieved) and a subjective element (where it must be apparent that there is an intention to obtain an improper advantage).
Against that, the court balanced free movement, saying that in a single market EU citizens have a right to choose the member state in which they wish to acquire their professional title and the member state in which they intend to practise their profession.
Far from being an abuse of the directive, the court said, the action of the Torresis in this case was the realisation of one of the objectives of the establishment directive, and did not constitute an abuse. It doesn’t matter that the submission of the application for registration in the register of lawyers in Macerata took place so soon after the professional title was obtained, since there was no requirement for a period of practical experience in the home member state (that is, Spain).
I suspect that this may be the last of the lawyer forum shopping cases, now that the principle has been so firmly established.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs