The complaint to the European Commission

1. In 2017, the complainant submitted a complaint to the European Commission about Italy’s alleged lack of compliance with the EU Directive on the recognition of professional qualifications^[1] when it comes to the qualifications of  lawyers (an ’infringement complaint’). The complainant stated that the Court of Justice of the EU has found that it is not an abuse of the right of establishment to acquire the bar qualification in another Member State and then return to one’s own Member State to practise there as a lawyer under the title acquired^[2].

2. The complainant contended that the measures required by Italy for recognising professional qualifications as a lawyer, obtained in Spain, are discriminatory and disproportionate. The Italian authorities require all members of the Spanish bar to pass the same aptitude test to get a recognition of their professional title. This test is almost as difficult as the Italian bar exam. The complainant compared this with the case of a German citizen who had applied for the recognition of her qualification as a lawyer obtained in Germany. In that case, Italian authorities required the applicant to pass a much easier aptitude test. To prove that the Italian authorities do not have an individualised approach to the recognition of professional qualifications as a lawyer, obtained in Spain, the complainant sent the Commission a number of decisions by the Italian authorities which all require the applicants to pass the same aptitude test.

The European Commission’s response to the complainant

3. In its reply to the complainant’s infringement complaint, the Commission stated that a Member State is allowed to put in place ’compensation measures’ for the recognition of a professional qualification obtained in another Member State, when there is a substantial difference in training. In particular, applicants can be required to complete an adaptation period of up to three years or to take an aptitude test^[3]. However, before deciding on compensation measures, national authorities must ascertain, in line with the principle of proportionality, whether the knowledge acquired by the applicant through professional experience can make up for the substantial difference in training^[4].

4. The Commission further stated that the assessment of the professional qualifications for exercising the legal profession is a matter for the national authorities. The Commission is not an appeal body that can annul a decision taken by the national authorities based on its assessment of a particular case. That is the role of national courts. In the complainant’s case, the Italian authorities recognised the professional qualification he had obtained in Spain.

5. The Commission closed the complaint because it found that there was no infringement of EU law by Italy. Dissatisfied with the Commission’s decision, the complainant asked the Commission to allow him to provide clarifications in person at the Commission’s premises and at his own expenses.

6. As the Commission did not address his request to be heard in person, the complainant turned to the Ombudsman in April 2019. He argued that the Commission provided superficial and insufficient reasons for rejecting his infringement complaint.

The European Ombudsman's findings

7. When it comes to infringement complaints, the Ombudsman may examine whether the Commission has kept the complainant properly informed as regards progress in the case and the position it eventually takes on the case. In addition, the Ombudsman may examine whether the complainant has been given the opportunity to comment on the position of the Commission before the Commission closes a case.

8. In this case, the Commission has fully informed the complainant as regards why it closed his infringement complaint and it gave the complainant the opportunity to comment on its intention to close the case, in line with the Commission communication governing the handling of infringement complaints^[5]. Regarding the complainant’s request to provide clarifications in person, the Commission communication indeed sets out that “At any point during the procedure complainants may ask to explain or clarify to the Commission, at its premises and at the complainants' own expense, the grounds for their complaint”^[6]. However, the Commission has discretion to decide which inquiry measures are necessary to investigate a complaint. The Commission is thus free to determine whether it would be useful to hear the complainant in person. In this case, the Commission acted in accordance with the principle of good administration by giving the complainant several possibilities to present observations on his complaint in writing^[7].

9. Regarding the substance of an infringement complaint, the Commission enjoys wide discretion in deciding whether and when to start infringement proceedings^[8]. The Ombudsman can ask the Commission to explain how it has exercised its discretion but cannot interfere in the Commission’s exercise of its wide discretion. The Commission is not obliged to engage with a complainant on every issue or argument raised on the alleged issue of non-compliance. Rather, it suffices that the Commission clearly explains why it has taken the position it has taken.

10. In reply to the infringement complaint, the Commission stated that it is for the national authorities to decide on the necessary compensation measures and that individual cases of incorrect application of the EU rules in this area should be challenged at national level. Accordingly, the Commission has explained its position on the infringement complaint.

11. There was thus no maladministration in how the Commission handled the infringement complaint and the case is closed.

 

Tina Nilsson

Head of Inquiries - Unit 4

Strasbourg, 18/10/2019

 

[1] Article 14 (5) of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32005L0036&from=EN

[2] Case 58/13 Torresi and Torresi v Consiglio dell’Ordine degli Avvocati di Macerata, available at http://curia.europa.eu/juris/document/document.jsf;jsessionid=C45F5FCEE23A82EA2F0FAEB0BBA37899?text=&docid=155111&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=72944

[3] Article 14 of Directive 2005/36/EC.

[4] In accordance with Article 14 of Directive 2005/36/EC.

[5]Article 10 of the Annex to the Communication from the Commission 2017/C 18/02 EU law, better results through better application, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017XC0119(01)&from=EN

[6] Point 7 of the Annex to the Communication from the Commission 2017/C 18/02.

[7] Article 16(2) of the European Code of Good Administrative Behaviour, available at https://www.ombudsman.europa.eu/en/document/en/3510.

[8] Case 247/87 Starfruit v Commission [1989] ECR 291, available at http://curia.europa.eu/juris/showPdf.jsf;jsessionid=8D5B473869BC5C4AC245F84A1BB60115?text=&docid=95620&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=78375