Prohibiting a monk from registering at the bar on the grounds that the statuses of monk and lawyer are incompatible is contrary to EU law, the Court of Justice of the European Union (CJEU) has ruled.
In Monachos Eirinaios v Dikigorikos Syllogos Athinon (judgment published in Greek and French) the court was asked to clarify points in a dispute between Monachos Eirinaios, a monk at the Holy Monastery of Petra, and the Dikigorikos Syllogos Athinon (Athens Bar Association).
Eirinaios – a qualified lawyer in Cyprus – asked the Athens bar to enter him on the register. The bar rejected the application on the basis of ‘national provisions relating to the incompatibility between practice of the profession of lawyer and the status of monk’. The bar association said those provisions also apply to lawyers wishing to practise in Greece under their home-country professional title.
Eirinaios challenged the decision before the Greek Council of State, which asked the CJEU whether the prohibition on a monk is compatible with EU law. The court heard that an article of the lawyers’ code stipulates that a clergyman or a monk who holds any paid post under a contract in the service of a legal person shall lose ipso jure the status of lawyer. ‘A lawyer who falls within the scope is obliged to make a declaration to the bar association where he is registered and to resign,’ it adds.
Meanwhile the Charter of the Church of Greece forbids a person under monastic discipline to travel outside the boundaries of his ecclesiastical area without the permission of his religious superior. It also notes that monasteries are religious establishments in which the men and women cloistered may live in accordance with the sacred rules and traditions concerning monastic life.
The Greek court submitted that public interest requires a lawyer to occupy himself exclusively with his duties and involves dealing with disputes that are incompatible with the status of religious minister. Further, a monk could not comply with specific rules of professional conduct such as the obligation to have a seat and geographical office in the area of the court of first instance, and a prohibition on providing services without remuneration, it said.
However, the CJEU said those assumptions could be erroneous. It found: ‘It is not part of the function of this court to second-guess what will happen when [Eirinaios] commences practice. The only conclusion that I reach here — and, I respectfully suggest, the only aspect of the story that the court need address — is that [the Establishment of Lawyers Directive] does not permit a member state automatically to ban a person who qualifies for registration from practising there as a lawyer.’
The CJEU noted that the presentation of a certificate attesting to registration is the only condition to which registration may be subject and the national legislature cannot add further conditions to the preconditions for registration. National legislation regarding professional conduct can be implemented provided that the rules do not go beyond what is necessary, the court said.