• In Case 2/74 Reyners [1974], the Court of Justice of the European Union (CJEU) decided that lawyers, as a profession (generally), are not exempt from the right to establishment, contained in Article 51 Treaty of the Functioning of the European Union (TFEU).
  • The article 51 exemption will only apply to a lawyer if it involves an individual carrying out ‘official authority’, which is unable to be separated from the scope of the profession as a whole.

Facts of the case:

  • The applicant was not allowed, because of Belgian law, to be a lawyer in Belgium, even though he was qualified, because he was Dutch. He sought to challenge this, on the basis that the Belgian law preventing him from becoming a lawyer in Belgium was inconsistent with Article 49 TFEU, the freedom of estafblishment.
  • The Belgian government argued that the applicant was exempt from protection from Article 49 TFEU, because the profession of lawyers, as a whole, fall under Article 51 TFEU and thus could not exercise the freedom of establishment. For reference, Article 51 states that “activities which in that state are connected, even occasionally, with the exercise of official authority” are exempt from Article 49. The Belgian government stated that lawyers are an “indispensable auxiliary for the administration of justice”.

Issues in Case 2/74 Reyners [1974] ECR 631:

  • The principal issue for the CJEU was whether lawyers as a whole, were indeed exempt under Article 51 from the freedom of establishment.

The CJEU held:

  • The exemption in Article 51 TFEU fid not apply to the legal profession in its entirety, and as such, the Belgian law was indeed incompatible with Community law. The CJEU did however say that where a lawyer would have to exercise official authority, Article 51 does preclude him from doing so in a Member State other than his own.

The CJEU specifically stated:

  • [54] “it is therefore right to reply to the question raised that the exception to freedom of establishment provided for by the first paragraph of Article 51 must be restricted to those of the activities referred to in [Article 52] which in themselves involve a direct and specific connection with the exercise of an official authority” [655]
  • [55] “in any case it is not possible to give this description, in the context of a profession such as that of an ‘advocat’, to activities such as consultation and legal assistance or the representation and defence of parties in court, even if the performance of these activities is compulsory or there is a legal monopoly in respect of it” [656].

Editor’s notes

  • With this case, we can see again the CJEU giving effect to the fundamental principles for which the EU was founded: economic freedoms between Member States.
  • The Court in this case was reluctant to allow Belgium to use the exception in Article 51 to prevent lawyers from practising in Belgium, where they did not have to exercise ‘official authority’. The term official authority, following this case, can be treated as a test for determining whether an individual is subject to the exemption in Article 51 or not.