The difference between torture and other ill-treatment: Cestaro v. Italy and the “prohibited purpose” requirement

 

Christina Kosin (LL.M. Edinburgh) Ph.D. candidate and academic assistant at the German Police University

What is the central element which distinguishes torture from inhuman or degrading treatment or punishment? Some scholars claim that the “prohibited purpose” requirement of the torture definition is the most central as well as the only criterion which is decisive in differentiating between that crime and other forms of ill-treatment.. However, in my view this is incorrect, and indeed the recent judgment of the European Court of Human Rights in Cestaro v. Italy shows (once again) that the “prohibited purpose” component of torture is not the only decisive criterion in distinguishing the crime from other inhuman or degrading treatment or punishment.

The judgment

Mr Cestaro was among the protesters surrounding the G-8 summit in Genoa, Italy from 21^st to 22^nd July 2001 (para. 7). On the first day of the summit of the world’s leading industrial States around 100,000 protesters gathered and demonstrated against globalisation (para. 19). Various radical groups such as the so-called “black blocks” were amongst the peaceful anti-globalisation protesters and engaged in violent and/or criminal conduct such as the looting of the city (para. 12). During the two days of incidents, hundreds of protesters and police forces were injured and one young person died (paras. 18-21). From the 21^st to 22^nd July 2001, Mr Cestaro and other protesters were housed in a school, which was stormed by the Italian police at that time. Mr Cestaro and others were brutally ill-treated while peacefully and legally lodging in the school (para. 182). The actual aim of the police mission was to search the school for evidence that could lead to the identification and possible arrest of members of the “black blocks” (para. 182). Mr Cestaro was subjected to repeated kicks and beatings with the tonfa, which is considered a potentially lethal weapon. As a result, Mr Cestaro suffered multiple fractures and a permanent impediment in his right arm and right leg (para. 178). The ECtHR ruled that the treatment by the police amounted to torture.

Ultimately he challenged the Italian state before the European Court of Human Rights (ECtHR), which issued its judgment in the case on 7 April. He alleged that Italy had committed a material and procedural breach of Article 3 of the ECHR, which states that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Neither torture nor the terms “inhuman or degrading treatment or punishment” are defined in the Convention. The Court’s practice has shown that it understands torture as defined in Article 1 (1) in the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). According to this definition, torture needs to be inflicted on a person

“for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind”.

This is the so known “prohibited purpose” requirement. Next to this, there are four more elements of the UNCAT torture definition namely (1) the act must be inflicted intentional, (2) the act must cause severe, physical or mental, pain or suffering, (3) the treatment must be inflicted by or at the instigation of or with the consent of or acquiescence of a public official or other person acting in an official capacity and (4) pain arising out of lawful sanctions is not included.

The issue at hand is that the prohibited purpose requirement is mistaken for the only criterion which is able to differentiate between torture and less serious ill-treatment. This confusion arose because of various reasons. The European Commission on Human Rights, which used to rule on cases together with the ECtHR, stipulated in the 1969 Greek case that torture “is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment” (p. 186). This was interpreted to mean that the purpose requirement is the distinguishing element between torture and inhuman or degrading treatment or punishment while the other elements remain static. Further, the ECtHR has never classified a treatment which lacked the purpose requirement as torture. In addition, some scholars claim that the drafting history of the UNCAT, the travaux préparatoires, indicates that this criterion is the sole distinguishing factor between the two forms of ill-treatment. Although these reasons sound compelling, the interpretation was wrong and the prohibited purpose requirement is not the sole decisive factor as is shown below.

In section “Aperçu de la jurisprudence en matière de « torture » “, the Court provided a brief overview of its jurisprudence concerning Article 3. In the subsequent section “Application en l’espèce”, the ECtHR applied the facts to the case. Both sections elucidate that the prohibited purpose criterion is a vital but not the only requirement to differentiate torture from inhuman or degrading treatment or punishment.

In the former section, the Court did not highlight the ostensible uniqueness of the prohibited purpose requirement. Rather, the Court showed that different criteria of the treatment can be decisive in classifying an act as torture. The Court highlighted that torture can be distinguished from other ill-treatment by the special stigma which is attached to the crime – torture implies very serious and cruel pain and suffering as well as the deliberate/intentional infliction of such pain. In the Court’s words, “[o]utre la gravité des traitmens, la « torture » implique une volonté délibérée.”  (para. 171).

Then, the Court referred to cases in which it found a combination of the gravity of the treatment and the intentional element such as in Aksoy v. Turkey and Yaman v. Turkey (para. 172). In this context the ECtHR noted that all these cases contained a purpose to obtain information, to punish somebody or to intimidate the person (para. 172). This is the first time the ECtHR mentioned the element of the prohibited purpose. The ECtHR further elucidated that it put a special weight on the severity of the pain in some cases such as Aslan v. Turkey or on the arbitrariness of the violence in other cases such as in Romanov v. Russia(para. 173-174). Towards the end of this section the Court explained that it did not classify some police actions as torture such as in Krastanov v. Bulgaria as the prohibited purpose element was missing and because the pain was inflicted for a short duration only (para. 175). This constitutes the second time when the Court mentioned the purpose criterion. Lastly, the Court stipulated that some cases such as Gäfgen did not constitute torture because the level of cruelty required was not reached (para. 176).

The ECtHR clearly revealed that various components can determine whether a particular treatment constitutes torture or inhuman or degrading treatment or punishment: the gravity of the treatment, the intentional infliction of the treatment, the severity of the pain, the arbitrariness of the violence, the prohibited purpose, the duration of the treatment and the level of cruelty of the act. The Court did not classify these examples as exhaustive and one can assume that other factors of the treatment as well can trigger a distinction between torture and other forms of ill-treatment. The prohibited purpose criterion of the UNCAT torture definition is not the only decisive factor.

In the section “Application en l’espèce”, the ECtHR provided reasons for classifying the treatment by the police as torture. In its reasoning, the Court did not explicitly state which element of the conduct by the police was decisive for classifying the violence as torture and not inhuman or degrading treatment. The arguments by the ECtHR suggest that a variety of characteristics of the treatment contributed to the Court’s decision.

The Court put forward that the pain was inflicted by the police with the purpose to punish and to retaliate and with the aim to cause pain and suffering (para. 177). The prohibited purpose by the police was hence to punish and retaliate. This is the first and last time that the ECtHR referred to the purpose requirement in this section. The Court noted that there is no denying that the pain and suffering was of particular seriousness and cruelty (para. 179). As mentioned above, the applicant suffered from a permanent impediment resulting out of the beatings he received. Further, it was stated that there was no link between the applicant’s conduct and the force used by the police. The Court emphasised that Mr Cestaro did not resist in any way and that the infliction of pain was thus disproportionate (para. 180).

Although the mission of the police was to search the school, the public officials immediately used force (paras. 180-182). Instead of trying to enter the building peacefully and negotiate with the protesters, the police stormed the building by breaking down the gates and promptly used violence against the protestors (para. 183). The Court then went on and stressed that the police tried to justify its actions by arguments such as the protection of the nation was at stake (para.184-185). It is indeed true that the 21^st July was marked by heavy violence through the looting and devastation of the city of Genoa (para. 20). One can imagine that the police was under paramount pressure and strain throughout the whole day. The Court, however, correctly observed that the situation in the school was entirely different as the protesters were calm and did not resist the violence of the police (para. 186). Based on these grounds the Court reached the conclusion that the treatment by the police amounted to torture as understood in Article 3 ECHR (para. 190). The ECtHR put forward several reasons for classifying the treatment by the police as torture but it did not single out one specific factor. It seems that the immediate, disproportionate and serious infliction of pain was vital for the Court to arrive at its decision. The prohibited purpose criterion was not the triggering criterion in this case.

Comments

The Cestaro v. Italy case shows that the prohibited purpose element in the UNCAT definition is not the sole criterion which distinguishes torture from other inhuman or degrading treatment or punishment. The presumption that the purpose requirement is the most important feature of torture does not automatically mean that it is the only one.

As indicated at the outset, Cestaro v. Italy is not the first case which revealed that the prohibited purpose requirement is not the sole factor able to distinguish between both crimes in the UNCAT. In the case Ireland v. the UKin 1978, the ECtHR ruled that the five techniques employed by the British forces did not constitute torture because they did not reach the level of cruelty and intensity as implied by the term (para. 167). In Selmouni v. France 1999 the Court reached a judgment on similar grounds. The ECtHR stated that the victim was subjected to torture because the pain and suffering was of particular seriousness and cruelty (para. 101-105). In Romanov v. Russia 2002, the Strasbourg Court found a multitude of reasons why the treatment by the prison wards constituted torture. However, it put a special emphasise on the arbitrariness of the beatings the victim received (para. 70).

These cases already revealed that other factors than the purpose requirement can make a difference between torture and inhuman or degrading treatment or punishment. Nevertheless, some still claim that only the purpose requirement can be decisive. They base their arguments on the travaux préparatoires of the UNCAT as well as old case law from different treaty bodies. The Cestaro v. Italy case reiteratesthat the prohibited purpose criterion is not the sole element which is capable of differentiating between torture and other ill-treatment.

One can now assume that the consequences flowing from this case and other similar jurisprudence of the ECtHR, will mainly concern theoretical discussions among legal scholars. The consequence could, however, have negative effects beyond that. The Strasbourg Court is not the only organ which uses the UNCAT definition of torture in its cases concerning violations of Article 3 ECHR. The Committee Against Torture (CAT) as well as the Human Rights Committee (HRC) provide decisions on the basis of Article 1 (1) UNCAT. The former body applies and interprets the UNCAT and the latter body enforces the International Covenant for Civil and Political Rights (ICCPR). If the ECtHR, the CAT and the HRC use different grounds for distinguishing torture from other ill-treatment, this could shed a negative light on the consistency and the trustworthiness of these bodies. Considering that the ban on torture is international, the jurisprudence should be consistent as well – at least with regard to the most important and international bodies which decide on torture cases, should it not? In the worst case scenario, the victims of torture could additionally suffer from legal uncertainty.

 

Barnard & Peers: chapter 9

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Tarakhel v Switzerland: Another nail in the coffin of the Dublin system?

 

Steve Peers

Introduction

Despite the EU’s purported adherence to high standards of human rights protection, the EU’s Dublin system, which allocates responsibility for each asylum-seeker’s application to a single Member State, has repeatedly run foul of human rights standards. Yesterday’s judgment of the European Court of Human Rights (‘ECtHR’, or ‘Strasbourg Court’) in Tarakhel v Switzerland, and the recent judgment of the same court in Sharifi v Italy and Greece, have further confirmed the problems in making this system compatible with ECHR obligations.

In fact, the Tarakheljudgment goes further than the prior judgments, which had merely exposed the lack of sufficient human rights protection in the EU legislation, as applied by Member States. Rather, it is now clear that the approach of the Court of Justice of the European Union (CJEU) in interpreting the Dublin rules is also incompatible with the ECHR.

Background

The Dublin rules initially appeared as part of the Schengen Convention, which bound only certain Member States. They were then set out in the form of the Dublin Convention, signed in 1990. This Convention was replaced by an EC Regulation (known as the ‘Dublin II Regulation’) from 2003. That Regulation was in turn replaced by the Dublin III Regulation, adopted in 2013, which applies to all applications made after 1 January 2014. Furthermore, the Dublin rules have been extended to the non-EU countries associated with the Schengen system, by means of treaties with Norway and Iceland on the one hand, and Switzerland and Liechtensteinon the other.

The previous leading cases on the compatibility of the Dublin regime with human rights were (for the Strasbourg court) the 2011 judgment in MSS v Belgium and Greece, and (for the CJEU) the judgment in NS, delivered later that same year. In MSS, the ECtHR ruled that Greece had violated Article 3 ECHR (the ban on torture or other inhuman or degrading treatment) in three ways: its treatment of the Afghan asylum-seeker in question in detention; its failure to secure adequate living conditions for him after release from detention; and its highly deficient asylum procedure. The evidence of these violations was found in numerous reports by NGOs and international bodies. The Court also ruled that Belgium had violated Article 3 ECHR because it had returned the same asylum-seeker to Greece (in accordance with the Dublin rules), even though it must have known of the situation there. For good measure, the Court also ruled that Belgium had violated Article 13 ECHR (the right to an effective remedy), since Belgium did not provide for sufficient reviews of the merits in cases such as this one.

Subsequently, the CJEU ruled in NS that asylum-seekers could not be returned to Greece, pursuant to the Dublin rules, because of systematic deficiencies in the asylum system in that country. Removals in such cases would constitute a breach of Article 4 of the EU Charter of Fundamental Rights (the equivalent of Article 3 ECHR). However, the Court distinguished such major breaches of fundamental rights from minor violations of EU or international rules relating to refugees, which would not require Member States to refrain from applying the Dublin rules.

Before the ECtHR could rule in Tarakhel, the CJEU clarified its position in its judgment in Abdullahi, delivered late in 2013. The Court started out by emphasising the presumption that all EU Member States protected human rights, noting that there was now second-phase legislation establishing the Common European Asylum System. It then characterised the Dublin rules as essentially regulating the relationship between Member States, referring in particular to the optional ‘sovereignty’ and ‘humanitarian’ clauses in the Dublin II Regulation, as well as the possibility of conciliation or separate arrangements between Member States. It followed that when two Member States agreed which of them was the Member State of first authorised entry (triggering responsibility under the Dublin rules), an asylum-seeker could ‘only’ challenge that decision by ‘pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum’ in the Member State which was deemed responsible for the asylum application.

Finally, the recent Sharifijudgment pf the Strasbourg Court established that Italy’s interception of asylum-seekers from Greece in the Adriatic, and their forced return to Greece, violated Article 3 ECHR as well as the ban on collective expulsions in the Fourth Protocol to the ECHR. In doing so, it confirmed a key corollary of the MSS ruling: Member States breach the ECHR if they stop asylum-seekers fleeing an unsafe country directly from crossing their borders. Although the rules on freedom to travel for third-country nationals in the Schengen Convention do not give asylum-seekers the right to move between Schengen States (unless, improbably, they have a visa or residence permit, or the visa requirement is waived for their country of origin), the ECHR nevertheless gives asylum-seekers the freedom to travel between Schengen countries (or any States) in such circumstances. Also, the right to move to another country extends beyond the three-month time limit on intra-Schengen travel, since asylum-seekers can in principle stay until their claim is finally rejected.

The Tarakhel judgment

Yesterday’s judgment concerned a family of eight Afghans, who entered the EU by crossing the Italian border first. This made Italy responsible for their applications under the Dublin rules. However, the family soon left the asylum-seekers’ reception centre which they were assigned to in Italy, on the grounds that conditions there were inadequate for families. They moved to Austria, which triggered the Dublin rules, asking Italy to take charge of them. Italy agreed, but before their transfer to Italy could be carried out, they moved on to Switzerland. That country in turn asked Italy to take charge of the family; Italy tacitly accepted.

However, they challenged their removal to Italy on the grounds that their treatment in that country, if they were removed there, would violate Article 3 ECHR. They lost their case in the Swiss courts, so asked the ECtHR to rule that their removal to Italy would constitute a breach of Article 3, as well as Article 8 ECHR (the right to family life). They also alleged a breach of Article 13.

The ECtHR rejected the Article 13 claim on the merits, since the Swiss courts had examined the merits of their legal arguments and they were allowed to stay on Swiss territory in the meantime. It held that it was not necessary to examine the Article 8 argument. Most importantly, by a majority of 14-3, it found that there was a breach of Article 3 ECHR.

Yet there are important differences between the MSS judgment and the Tarakhel judgment. Yesterday’s judgment does not state that Italy’s asylum system has effectively collapsed, as was the case in Greece. In particular, there were no allegations in Tarakhelrelating to flaws in Italy’s asylum procedures, or as regards detention. The argument instead was solely about living conditions in Italian detention centres.

The ECtHR began by reiterating its case law from MSS about reception conditions for asylum-seekers. While Article 3 ECHR did not guarantee a home or financial assistance, in cases involving EU Member States the Court took account of their specific obligations in that respect under the EU’s reception conditions Directive. Also asylum-seekers were an ‘underprivileged and vulnerable group’, and it was possible that extreme poverty could raise issues under Article 3. The Court also referred to other prior case law on the need to ensure that child asylum-seekers, who were in a position of ‘extreme vulnerability’, enjoyed ‘protection and humanitarian assistance’.

Next, the Court reiterated the usual rule that Article 3 prevents removal if ‘substantial grounds have been shown for believing’ that there is a ‘real risk’ of treatment contrary to Article 3 in the state of destination. The same rule could be used to rebut the assumption that countries applying the Dublin system were all safe. In this context, the ECtHR referred to the CJEU’s ‘systemic deficiencies’ test set out in the judgment in NS, but made no reference to the ruling in Abdullahi that this was the ‘only’ ground for challenging the application of the Dublin rules. However, the ECtHR also ‘notes’ the recent EM judgmentof the UK Supreme Court, which expressly stated that ‘systemic deficiencies’ were not the only ground for such challenges. Overall, the Court stated that these tests had to be applied by examining ‘the applicant’s individual situation in light of the overall situation prevailing’ in the state of destination.

Applying these rules to this case, the applicants had made three complaints about the situation of the Italian reception system. The first complaint, about the slowness of identification procedures, was dismissed out of hand, since the applicants had in fact been identified quickly. As for the second complaint, the Court accepted the evidence that there were not enough places for all asylum applicants. Thirdly, as for the reception conditions within the available facilities, a number of problems had been identified by the UNHCR and the Council of Europe’s Human Rights Commissioner.

Taken as a whole, then, the Court ruled that the ‘current situation in Italy can in no way be compared to the situation in Greece at the time of the MSS judgment’, where only a small fraction of asylum-seekers could be accommodated and ‘the conditions of the most extreme poverty…existed on a large scale’. So there could not be ‘a bar to all removals of asylum seekers to that country’. Having said that, the Court accepted that there was some risk that asylum-seekers might not get accommodation, or that the accommodation would be inadequate.

As for the individual position of the applicants, that was not comparable to the facts of the MSScase either.  The family in this case were taken care of immediately by the Italian government, rather than detained and then left to fend for themselves. But again, having said that, the Court was concerned that, in light of the vulnerability of asylum-seekers, and children in particular, there was no guarantee of (adequate) accommodation for families seeking asylum in Italy. So Switzerland could not send the family to Italy unless they obtained sufficient assurances on this point. This alone constituted a breach of Article 3 ECHR.

Interestingly, the majority judgment makes no reference to the alternative possibility of asylum-seekers obtaining private family housing at the expense of the State, which the CJEU developed in its recent Saciri judgment on the reception conditions Directive.

Comments

With great respect, there are many flaws with the CJEU’s judgment in Abdullahi. That judgment confuses Regulations (directly applicable in national legal systems) with Conventions (essentially governing relations between States). It places undue reliance on provisions of the Dublin II Regulation which were never applied in practice (conciliation) or were irrelevant to the case at hand (separate arrangements between Member States). It ignores the CJEU’s own case law on the ability to challenge Member States’ application of the Dublin II rules as regards unaccompanied minors (MA), humanitarian situations (K) or withdrawn applications (Kastrati). Its scope is unclear: does it only apply when Member States agree that the criterion regarding irregular entry is applicable, or in other cases as well? In any event, the judgment needs to be rethought in light of the Dublin III Regulation, which considerably expanded the procedural rights of asylum-seekers in the Dublin context. Why do that, if they can only challenge their transfer if there is a complete breakdown in the asylum system of the State responsible for their application?

But the most fundamental flaw in the Abdullahi judgment is exactly that: the CJEU’s statement that at least in some cases, the determination of the responsible Member State can ‘only’ be challenged if there are ‘systemic deficiencies’ in the asylum system of that State. Is that statement still correct after Tarakhel?

Certainly the statement is wrong if the CJEU meant (as it appeared to say) that both the asylum procedure and the reception conditions systems have to have failed in the responsible Member State, before a transfer to that State can be challenged. In Tarakhel, there is no issue raised regarding the asylum procedure in Italy. More generally, the Italian reception system is not in complete breakdown: the Tarakhel family faces neither extreme poverty nor vile detention conditions, but merely some risk that accommodation will either not be available or that it will be somewhat unpleasant. Accordingly, the Swiss obligations are nuanced: there is no ban on transfers, merely a procedural obligation to make arrangements with the Italian authorities.

It isn’t clear whether Tarakhelabandons the CJEU’s assumption that only ‘systemic deficiencies’ in the asylum system of a responsible State can justify a challenge to a Dublin transfer, or whether the judgment merely modifies the notion of ‘systemic deficiencies’ considerably, lowering the threshold for its application. On the first hypothesis, ‘systemic deficiencies’ are just one example of a situation that could lead to rebuttal of the assumption that another Dublin State is safe. Uncertainty about adequate reception conditions for families is another. But surely this cannot be an exhaustive list.

On the second hypothesis, a ‘systemic deficiency’ would not exist only where an asylum system had entirely collapsed, but where some particular aspect of the system was malfunctioning regularly to some extent. By analogy, a car needs to be fixed not only when the brakes entirely fail to work, but also when the windshield wipers occasionally malfunction. The risk is far greater in the first case, but the second case shouldn’t be ignored either. Again, the problems in Tarakhel cannot be the only example of a flaw in the asylum system of a responsible Member State that needs to be fixed before asylum-seekers can be transferred there.

There isn’t much difference between these two possible interpretations of Tarakhel. Although the first interpretation is in principle more open-ended than the second one, it shouldn’t take too much imagination to argue that any particular problem an asylum-seeker might face in the responsible Member State is ‘systematic’ in this very broad sense. The second interpretation does give the CJEU more leeway to back down from its head-banging judgment in Abdullahi, and explain that this was also what it had meant by ‘systemic deficiencies’ all along.

Of course, given the strong insistence on the efficiency of the Dublin system in the Abdullahijudgment, this is obviously not what the Court had meant at the time. Yet the clear message from the Tarakhel case is that there is not a simple binary distinction between cases when all Dublin transfers should stop, on the one hand, and cases when all Dublin transfers should go ahead at full speed, on the other. Instead, like a traffic light, yesterday’s judgment creates an intermediate category of cases in which national administrations must proceed with caution. This will undoubtedly make the Dublin system more costly and complex to administer, but that is often the only way to ensure that human rights are protected effectively.  

Barnard & Peers:  chapter 9, chapter 26

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“So these lawyers walk into a Bar and … “ The Court of Justice liberalises cross-border access to the legal profession

Dr Julian Lonbay, Senior Lecturer,
Postgraduate Research Admissions Tutor, Birmingham Law School, University
of Birmingham

Introduction

Does EU law allow its citizens to seek the quickest possible means to qualify for a professional activity, even if it means leaving out large areas of training required by national law on access to the national profession that exercises that activity? The Court of Justice has addressed this issue recently in its judgment in Joined Cases C-58/13 and C-59/13 Angelo Alberto Torresi and Pierfrancesco Torresi v Consiglio dell'Ordine degli Avvocati di Macerata.

Background: Mobility rights for lawyers under Directive 98/5/EC

In Italy, as elsewhere across Europe, there is a special section of the roll of lawyers (elenco) for those lawyers emerging from elsewhere in the European Economic Area who are seeking to establish under their ‘home State professional title’ in Italy. This follows the implementation of Directive 98/5/EC to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained. This Directive requires host State Competent Authorities to register and automatically recognise the professional titles of lawyers, whose professions are listed in Article 1(2) of the Directive. Such lawyers, once registered, have the right to exercise their profession in the host country, according to Article 5 of the Directive.

However, unlike other countries, in Italy 92% of the registered European lawyers are Italian nationals. The Consiglio nazionale forense (Italian National Bar Council) has established that nearly 3,500 such registered European lawyers were Italian nationals who had obtained their professional title elsewhere in the EEA. 83% of these lawyers had obtained their professional title, abogado, in Spain.

The via spagnola

Spain, until recently, imposed no requirement for post–university mandatory training before becoming an abogado. One simply had to have a Spanish law degree, or one recognised as equivalent to a Spanish law degree, and one could register with one of the eighty-three Spanish Bars as an abogado. [There is now a mandatory training period and State exam in Spain, the first of which was held in 2014.]

As many Italians with a laurea in guirisprudenza (Italian law degree) discovered, the Spanish authorities often considered the Italian Law degree to be equivalent to a Spanish law degree, and their degrees could be homologated more or less automatically. Armed with their new Spanish recognised diplomas they could enrol as lawyers in Spain, and thence return triumphant to Italy, where they were entitled (under Directive 98/5/EC) to practise as Spanish lawyers. Such practise can include dealing with matters of Italian law (subject to some deontological and other restraints). So instead of undergoing the required Italian period of legal practice and passing a State exam before being able to practice as an avvocato (Italian lawyer), which would take at least two years, they could qualify abroad more speedily, and then return as lawyers from another Member State and practice in Italy as such. 

An abuse of EU law?

The Italian Bars were concerned at this practice and considered it to be an abuse of European Law and argued even that it threatened the Italian national identity which should be protected by Article 4(2) TEU.

The Torresi cases were an opportunity to see if EU law could bear such an interpretation. The two Torresis returned from Spain qualified as abogados, and asked the Bar of Macerata (in Italy) to inscribe them on the special roll for registered European lawyers. The Bar Council of Macerata took no decision within one month (which was the time limit set by Italian law), and they then turned to the Consiglio nazionale forense(CNF) asking it to take action on their applications. The CNF was not convinced that Article 3 of the Directive could be used in such circumstances which it thought might constitute an ‘abuse of law’ and be contrary to Article 4(2) TEU

‘in that it permits circumvention of the rules of a Member State which make access to the legal profession conditional on passing a State examination, given that the Constitution of that Member State makes provision for such an examination and that the examination forms part of the fundamental principles of protecting consumers of legal services and the proper administration of justice?’

Two questions were referred to the CJEU by the Italian CNF. Preliminary issues of jurisdiction and capacity took up much of Advocate General Wahl’s Opinion (§§19-83) and more than half of the Grand Chamber’s ruling. The substantive legal issues dealt with aspects of the free movement of lawyers under Directive 98/5/EC and are dealt with below.

The following questions were referred to the CJEU:

‘1.      In the light of the general principle which prohibits any abuse of rights and Article 4(2) TEU, relating to respect for national identities, is Article 3 of [Directive 98/5] to be interpreted as obliging national administrative authorities to register, in the register of lawyers qualified abroad, Italian nationals who have conducted themselves in a manner which abuses EU law, and as precluding a national practice which allows such authorities to reject applications for registration in the register of lawyers qualified abroad where there are objective circumstances to indicate that there has been an abuse of EU law, without prejudice to respect for the principles of proportionality and non-discrimination and to the right of the person concerned to institute legal proceedings in order to argue a possible infringement of the right of establishment and, consequently, the possibility of judicial review of the administrative action in question?

2.      If the first question should be answered in the negative, is Article 3 of [Directive 98/5], thus interpreted, to be regarded as invalid in the light of Article 4(2) TEU, in that it permits circumvention of the rules of a Member State which make access to the legal profession conditional on passing a State examination, given that the Constitution of that Member State makes provision for such an examination and that the examination forms part of the fundamental principles of protecting consumers of legal services and the proper administration of justice?’

Were the Italian via spagnola practices an abuse of EU law?

Advocate General Wahl

The Advocate General first acknowledged that ‘abuse of law’ was a recognised concept in EU law. Citizens could not fraudulently or abusively rely on EU law. The concept of abuse had both objective and subjective elements that had to be assessed by national courts, but without compromising EU law.  Objectively EU law should not lead to the “wrong results” and ‘subjectively’ there should be no manipulations or artificial fulfilment of the conditions of EU law so that one could benefit from its provisions “abusively”.  

In this case the Advocate General the Italian practice in question showed the EU law was functioning correctly and achieving its correct aims. Nothing in Directive 98/5/EC indicated that the EU legislature wished to allow Member States to practise “reverse” discrimination against their own nationals. EU citizens were entitled to seek out the most favourable jurisdiction in which to qualify. This indeed was the rationale for “harmonising” the pre-conditions for exercising the rights conferred by Directive 98/5/EC.

Fraud

If there was a legitimate fear of fraud, then, in those rare cases, an investigation could be legitimate and Article 13 of the Directive, encouraging close collaboration between competent Authorities in the relevant Member States in such cases, should be used.

Italian national Identity (Article 4(2) TEU)

As to the threat to Italian national identity the Advocate General was perplexed, how did the fact that an Italian used EU law rights to become a Spanish lawyer and then practice in Italy as such, threaten Italy’s legal order and compromise Italy’s national identity? The Italian Government, at the hearing, had not supported the CNF on this point. The Torresi pair were not seeking access to the Italian legal profession itself, but to the Italian legal market as abogados. The Parliament, Council, Spanish and Polish Governments, intervening , had all considered that Italy maintained its rights to control access to the profession of avvocato. How could Italy deny an abogado right to practice in Italy? It was Spain’s competence to determine how anabogado qualified and it would strike at the heart of Directive 98/5/EC to allow such an interpretation.

Grand Chamber of the CJEU

The CJEU convened as a Grand Chamber to consider the case.  Having disposed of the preliminary jurisdictional issues they turned to the substantive questions of law. First they pointed out their earlier case law interpreting Directive 98/5 as a mechanism for the “mutual recognition of professional titles of migrant lawyers”.

§38
In that context, Article 3 of Directive 98/5 undertakes a complete harmonisation of the preliminary conditions required for the exercise of the right of establishment conferred by that directive, providing that a lawyer who wishes to practise in a Member State other than that in which he obtained his professional qualification is obliged to register with the competent authority in that Member State, which must effect that registration ‘upon presentation of a certificate attesting to his registration with the competent authority of the home Member State’ …

Presentation of the home State certificate by the migrant lawyer was the sole condition applicable before registration in the host State. The CNF argued that this was an abuse of law, as they were evading the Italian training requirements.

Abuse of Law

The Court confirmed that abuse of law was a concept that EU law recognised, and that Member States could take measures to prevent nationals from ‘improperly’ circumventing national law. Echoing Advocate General Wahl they considered that the concept had both objective and subjective dimensions. If, despite formal observation of the conditions of EU law, the objectives of that law were not met then the objective condition for abuse of law was met. The subjective element required an intent to obtain an improper advantage from EU law by ‘artificially’ complying with conditions set down.

Applying this test to the Torresi cases they declared:

            §48

… it must be held that the right of nationals of a Member State to choose, on the one hand, the Member State in which they wish to acquire their professional qualifications and, on the other, the Member State in which they intend to practise their profession is inherent in the exercise, in a single market, of the fundamental freedoms guaranteed by the Treaties …

It could not be an abuse of law as it was the intention and purpose of EU law to create the opportunity for an EU citizen with a degree to travel elsewhere, qualify there, and then return. The objective element of the abuse of law test was not met. EU law intended the result complained of. The fact that they were availing themselves of more ‘favourable’ legislation was not enough to meet the subjective element of the test.

Italian national Identity (Article 4(2) TEU)

The Court confirmed that EU law must ‘respect the national identity of Member States’ (Article 4(2) TEU). The Italian CNF argued that Article 3 of Directive 98/5/EC allowed a circumvention of Article 33(5) of the Italian Constitution as it allowed Italians to evade the national Bar exam, thus allowing circumvention of rules that formed part of the Italian national identity. The Court followed the Advocate General and confirmed that Article 3 of the Directive gave access to the legal market in Italy, not the Italian profession of avvocato (lawyer), therefore there was no evasion of national rules. They confirmed also that the Italian Government, at the hearing, had accepted this.

Commentary

The Court in this ruling is supporting a view that EU law allows for regulatory competition. There is a market formed of the national regulatory regimes for legal services of the Member States. Citizens and businesses can choose which regime to opt for. In doing so, it is true that future lawyers can leave out aspects of training that would have been required had they remained at home. But in making that choice there is no abuse, it was what EU law was designed to do. It is really no surprise that States are no longer fully sovereign within their territories. By the logic of the single market, borders are supposed to be disappearing.

In this case, EU law, decided by the Member States, has decreed that once admitted to the nominate legal professions, recognised in Article 1(2) of Directive 98/5/EC, then those with the relevant professional titles have the right to establish in another Member State, as set out in Directive 98/5/EC, under their home State professional titles. This means that it cannot be an abuse of law to exercise these rights. The purpose of the rule was to permit that very mobility.

Member States do not have to have identical rules for accessing the profession of lawyer. The content of education is a matter that is, in the main, reserved to Member States. Equally the range and depth of reserved legal activities varies across the EEA. So some States allow non-lawyers to practise in areas that, in other States, are reserved for particular legal professions. It is recognised that access to legal practice varies profession by profession, country by country, across the EEA. This causes complications when lawyers move across borders as their training and range of activities will be different. For the consumer of legal services this is great as they can have a wide choice of expertise to draw upon. For the regulators it is uncomfortable. They must co-ordinate with professional regulators from other Member States. They must learn and understand the regimes operating elsewhere. They must co-ordinate should disciplinary issues arise, and they must consult each other should complexities or misunderstandings arise when the migrant lawyer is seeking access to a host State legal market. All this interaction encourages pan-European engrenage (enmeshment) at many levels.

In the Torresicase the Consiglio nazionale forensedid not raise the issue of Article 10 of the Directive. This allows a migrant lawyer who has been practising law under the home State title for three years, to convert into an avvocato. Such lawyers must show that they have

effectively and regularly pursued for a period of at least three years an activity in the host Member State in the law of that State including Community law.

These lawyers are exempt from any aptitude test or adaptation period. Thus a few years down the line, the Italians who have taken the via spagnola will be easily incorporated into the Italian legal profession. This was probably not raised at the Court of Justice, as it had already indicated in its earlier case law that such access did not infringe the principle of non-discrimination.

In Luxembourg v Parliament and Council, Luxembourg had complained that Article 10 allowed the practice of national law by migrant EEA lawyers, without regard to any training requirements in national law. Luxembourg lawyers had to undertake a whole raft of training in national law, so why should the migrant lawyers be exempted? Furthermore could Luxembourg not protect its consumers of legal services against these untrained hordes of migrant lawyers? The Court found that there were sufficient safeguards in the EU legislation to protect consumers, and that national and migrant lawyers were not in exactly comparable situations, so discrimination had not arisen. The migrant lawyers had various restraints imposed upon them by the Directive itself. Thus there was no issue of ‘unequal treatment’ that EU law might have sanctioned.

The court, in Torresi , has re-affirmed the primacy of the Single market. It is there to benefit citizens and businesses in Europe, not to make life easy for the national regulators of economic activity. Future European lawyers can pick and mix their training and, once qualified, can decide where in Europe to practice. The forces unleashed by this liberalization fosters an ‘ever closer’ Union for providers of services, their consumers and also for the regulators of legal services.

Barnard & Peers: chapter 14

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