Cooking Dim Sum? These are the ingredients

Robert Koller offers in a guest post in FT Tilt legal insights for both would-be issuers of and investors in 'dim sum' bonds.

http://ftti.lt/22e

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ECJ confirms „doctrine of substantial difference“ first introduced in the Koller case in a new judgement.

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The European Court of Justice confirmed in its judgement C-359/09 – Ebert (Nr. 33), the „doctrine of substantial difference“ first established in Robert Koller’s case C-118/09 expressly citing Robert’s case. An EEA national who seeks the recognition of a diploma in a host member state may only be subject to an examination in such host member state if

1. the host member state has implemented the provisions for an examination under Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration in its national law and
2. most importantly, only if the knowledge acquired by the applicant in the course of his professional experience is not capable of covering, in whole or in part, any substantial difference.

It is now confirmed in two judgements that only if there is a substantial difference in the knowledge acquired by the applicant in the course of his entire professional experience an examination may take place. This new doctrine sets out that national authorities cannot anymore use these examinations for protectionist purposes stating that any difference, as small as it could be, necessarily leads to an examination and thereby discriminating applicants who have acquired their knowledge either through alternative routes or even in the relevant host member state through practising there. This results in a further strengthening of the single market and a single educational space.

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European Court of Justice strengthens freedom of education

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LANDMARK DECISION OF THE EUROPEAN COURT OF JUSTICE AWARDED TO ROBERT KOLLER, CAIA

The European Court of Justices reinforces the right of EU citizens to take their education inside the EU wherever they wish.

Executive Summary:

Robert Koller, an Austrian citizen, who completed law degrees in both Austria and Spain, has been awarded a landmark decision in a dispute lasting several years in relation to the Austrian legal profession. Having first qualified as a lawyer in Spain, he applied to take the foreign lawyers’ test in Austria and requested exemption therefrom based on the fact that he had studied law in Austria and that there was a relevant provision therefor in Austrian law.

However, his request for admittance to the aptitude test was denied in the first instance and also after appeal by the Oberste Berufungs- und Disziplinarkommission (Appeals and Disciplinary Board; “OBDK”). Nevertheless, the Austrian Constitutional Court confirmed Mr. Koller in a decision in which it annulled the ruling of the OBDK, calling it arbitrary. Despite the clear ruling of the Constitutional Court, the OBDK referred two questions to the European Court of Justice (“ECJ”).

The ECJ ruled in its judgement C-118/09 – Koller that:

• Mr Koller’s qualifications as a whole fall within the scope of Directive 89/48/EEC on the mutual recognition of diplomas;
• due to the fact that Mr Koller had in fact acquired an additional qualification over and above that obtained in Austria, no abuse or circumvention of Austrian rules had taken place;
• any practical experience required in Austria to become a lawyer is irrelevant for the definition of the term diploma as used in the Directive;
• therefore, Mr Koller must be admitted to the foreign lawyers’ aptitude test in Austria;
• the host Member State, i.e. Austria, may require an aptitude test only in case of a substantial difference;
• an aptitude test may only be prescribed following verification that the knowledge acquired by the applicant in the course of his entire professional experience is capable of covering such substantial difference, if any;
• the host Member State shall not require any proof of completion of practical experience.

Mr Koller represented himself in all instances, including the Austrian Constitutional Court¹ and the European Court of Justice.

About Robert Koller:

Robert Koller (31) is admitted as a lawyer in Spain (abogado, since 2005) and Germany (Rechtsanwalt, since 2010) and currently works with an international law firm in Frankfurt am Main, Germany. He is specialised in capital markets and banking, funds and European law. Mr. Koller is also a Chartered Alternative Investment Analyst (CAIA), and is also the Co-Chair of the German CAIA chapter. Prior to moving to Germany, Mr. Koller had also worked as a lawyer with major firms in Spain and Gibraltar.

Long text:

In a dispute between Mr Koller and the Rechtsanwaltsprüfungskommission of the Oberlandesgericht Graz (Lawyers’ Examination Board at the Higher Regional Court, Graz, Austria) concerning the refusal to admit him to the foreign lawyers’ aptitude test for the profession of lawyer in Austria or to exempt him from that test, the OBDK referred two questions to the ECJ for a preliminary ruling on the interpretation of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher education diplomas awarded on completion of professional education and training of at least three years’ duration (the “Directive”).

In 2002, Mr Koller, an Austrian national, obtained from the University of Graz (Austria) the degree of Magister der Rechtswissenschaften, a diploma awarded on completion of a cycle of university law studies lasting at least eight semesters. In 2004, the Kingdom of Spain recognised the degree as equivalent to that of Licenciado en Derecho, as the applicant had followed courses inter alia at the Autonomous University of Madrid and passed additional examinations in accordance with the homologation procedure provided by Spanish legislation. In 2005, the Madrid Bar Association admitted Mr Koller as a lawyer (abogado). Consequently, Mr Koller applied for admission to the aptitude test for the profession of lawyer. At the same time, he applied for the waiver under Austrian law in respect of all subjects comprising the aptitude test. Both the Rechtsanwaltsprüfungskommission and the OBDK, by appeal, rejected the application for admission to the aptitude test. It based its reasoning, firstly, on the fact that in Spain, by contrast with the rules applicable in Austria, practical experience is not required in order to pursue the profession of lawyer. The OBDK concluded that Mr Koller’s application had been designed to circumvent the requirement for five years’ practical experience required by the Austrian rules. Secondly, the OBDK took the view that the degree of Licenciado en Derecho was not sufficient for admission to the aptitude test. In 2008, following an appeal by Mr Koller, the Verfassungsgerichtshof (Constitutional Court, Austria) set aside that decision of the OBDK on the ground, inter alia, that it was arbitrary and that there was no evidence of abuse on Mr Koller’s part. Accordingly, the OBDK had to rule again on Mr Koller’s application for admission to the aptitude test for the profession of lawyer. However, the OBDK decided to stay the proceedings and refer to the ECJ for a preliminary ruling.

In its first question, the OBDK asked, in essence, whether, with a view to gaining access to the regulated profession of lawyer in a Member State, subject to passing an aptitude test, the provisions of the Directive may be relied upon by a person who holds a degree issued in that Member State on completion of a cycle of post-secondary studies lasting more than three years, and who also holds an equivalent degree issued in another Member State after additional training of less than three years and enabling him, in that latter State, to have access to the regulated profession of lawyer. The ECJ noted that the concept of a “diploma”, as defined in the Directive, constitutes the cornerstone of the general system for the recognition of higher education diplomas. The Directive entitles any applicant who holds a “diploma”, within the meaning of the Directive, that enables him to pursue a regulated profession in one Member State to pursue the same profession in any other Member State. A “diploma” may also consist of a set of qualifications. That condition is satisfied in relation to qualifications such as those of Mr Koller, each of which was awarded by a competent authority, designated respectively in accordance with Austrian and Spanish legislation. The degree certificate that was awarded to Mr Koller by the University of Graz evidences expressly that the holder must have successfully completed a post-secondary course of at least three years’ duration at a university. Furthermore, Mr Koller has the professional qualifications required for access to the regulated profession of lawyer in Spain. Moreover, the Spanish qualification relied on by Mr. Koller attests his acquisition of an additional qualification over and above that obtained in Austria. The fact that that Spanish document does not attest to professional training of three years undertaken in Spain is irrelevant in that respect because it does not require that the post-secondary studies lasting at least three years have to be undertaken in a Member State other than the host Member State. Accordingly, the ECJ held that with a view to gaining access, subject to passing an aptitude test, to the regulated profession of lawyer in a Member State, the provisions of the Directive as amended may be relied upon by a person who holds a degree issued in that Member State on completion of a cycle of post-secondary studies lasting more than three years, and who also holds an equivalent degree issued in another Member State after additional training of less than three years and enabling him, in that latter State, to have access to the regulated profession of lawyer, which he was actually practising in the latter State on the date on which he applied for admission to the aptitude test.

In its second question, the OBDK asked, in essence, whether the Directive must be interpreted as precluding the competent authorities of the host Member State from refusing to authorise a person to take the aptitude test for the profession of lawyer without proof of completion of the period of practical experience required by the legislation of that Member State. The ECJ held that since the profession is one the exercise of which requires a precise knowledge of national law and an essential and constant element of which is the provision of advice and/or assistance concerning national law, the Directive does not prevent the host Member State from requiring that the applicant take an aptitude test, provided that the latter State first verifies whether the knowledge acquired by the applicant in the course of his professional experience is capable of covering, in whole or in part, any substantial difference. Given that the applicant is subject, in the host Member State, to an aptitude test whose very purpose is to ensure that he is capable of exercising the regulated profession in that Member State, the ECJ held that the latter cannot deny authorisation to a person to take such a test on the ground that he has not completed the period of practical experience required by the legislation of that Member State.

For the full text of the decision, please click here (German here).

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