Free Law Dissertations - European Union Law Question 1 (a) And (c) Article 43 Of The Ec Treaty
European Union Law
Question 1
(a) and (c)
Article 43 of the EC Treaty provides that restrictions to the freedom of establishment shall be prohibited and this article can be relied on where qualifications one other Member State are not recognised by another. The way in which ECJ case law has reasoned its way through this by virtue of the case of Thieffry. Here a Belgian national was refused admission to the French bar on account of the fact that he did not possess an actual French degree.
The ECJ held that once all measures required in order to obtain the equivalent qualification are carried out, the authorities of that member state cannot justifiably refuse to recognise the qualification.
Council Directive 89/48 grants the right of establishment by obliging member states to mutually recognise foreign qualifications as equivalent subject to the completion of a required adaptation period following three years of higher education, where the member state deems qualifications to be substantially different to their own. The new directive, 2001/19/EC, called the SLIM directive, provides that host member states must examine whether relevant practical experience will bridge the gap between differences in education and training.
These directives do not include non EU State qualifications but Vlassopoulou stated that where a member state decides to recognise such a qualification, the state must also take into account practical training and professional experience that has been obtained in another member state.
In the present case, this therefore means that the Law Society for the Bar Council of the United Kingdom is obliged to assess the practical training and professional experience that Apollo has gained in Greece but they are under no obligation to deem the American qualification as mutually recognisable.The three hour English law examination is a condition of recognition by the Law Society, which if passed, will oblige recognition of the qualifications by the UK.
(b)
The scope of Article 43 (EC) is very wide and there is specific provision for the right to freedom of establishment in more than one member state at the same time. In Klopp a German lawyer was refused admission to the Paris Bar due to the fact that he already had a German office and the bar only allowed him to open one office within the district of the court where the lawyer was admitted. This non discriminatory rule represented a bar to the freedom of establishment in more than one member state.
This case is clear authority that the Law Society and Bar Council Rules are in breach of Article 43 (EC).
(d)
Sexual orientation discrimination is not recognised as being sex discrimination under Article 14 of the ECHR. This was established in Grant v South West Trains Ltd in which travel concessions were refused to a same sex partner of an employee.
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