Introduction

Access to the legal profession in Italy is reserved to holders of a five-year university degree in law who have participated in an apprenticeship of at least 18 months and have passed a state examination, held once a year, consisting of three written tests and an oral interview on five areas of law. On average, over 61% of the applicants fail the written tests every year.Footnote ¹ This has prompted a significant number of Italian law graduates to seek recognition of their university degree in other member states where access to the bar is subject to less onerous requirements and to apply for registration with a local Bar Council in Italy to practise, under their foreign professional title, as ‘established lawyers’ under Article 4 of Directive 98/5.Footnote ² After three years of effective and regular practice in Italian law, established lawyers can obtain, without taking any aptitude test, admission to the legal profession in Italy as ‘integrated lawyers’, acquiring the same status and title (‘avvocato’) as candidates who have passed the state examination.Footnote ³ According to a recent survey, 92% of the established lawyers practising in Italy under another member state’s professional title are, in fact, Italian nationals, who have returned to Italy shortly after being admitted to the legal profession in another member state – typically Spain (83%) and Romania (4%) – in some cases with the assistance of profit-making companies that specialise in expediting the necessary administrative formalities.Footnote ⁴

Angelo Alberto Torresi and Pierfrancesco Torresi, two Italian brothers, obtained university law degrees from the University of Macerata (Italy) and subsequently had those degrees recognised in Spain via the procedure of homologación. In accordance with the Spanish legislation in force at the time,Footnote ⁵ on the basis of their homologation certificate, the Torresi brothers were able to enrol as ‘abogados ejercientes’ in the register of the Ilustre Colegio de Abogados de Santa Cruz de Tenerife (Bar of Santa Cruz de Tenerife, Spain) without sitting any exam or providing any proof of professional experience. Three months later, they lodged applications with the Bar Council of Macerata in Italy to be registered in the special section of the lawyers’ register devoted to established lawyers. Having received no reply within 30 days, the applicants instituted proceedings before the Consiglio Nazionale Forense (CNF; the Italian National Bar Council) claiming that, as the ECJ held in Wilson, registration in the special section was solely conditional upon the presentation of a certificate attesting to registration with the competent authority in the ‘home’ member state,Footnote ⁶ which they had obtained from the relevant Spanish authorities and attached to their applications to the Macerata Bar Council.

The CNF, however, considered that the situation of a person who, after obtaining a legal qualification in Italy, travels to another member state in order to obtain the title of lawyer there, with a view to returning immediately to Italy and entering into professional practice as an established lawyer may constitute an attempt to abuse the rights granted by Directive 98/5 to circumvent the domestic provisions regulating access to the legal profession, which as per Section 33(5) of the Italian Constitution is conditional upon having successfully passed the state examination. Accordingly, the CNF resolved to stay proceedings and to submit two questions to the Court for a preliminary ruling.Footnote ⁷ First, the CNF inquired whether Article 3 of Directive 98/5, read in the light of the prohibition on abuse of rights and of the principle of respect for national identities, should be interpreted as enabling national administrative authorities to reject applications for registration in the special section of the lawyers’ register where there are objective circumstances to indicate that there has been an abuse of EU law. Second, the CNF asked whether, if the answer to the first question should be in the negative, Article 3 of Directive 98/5 should be regarded as infringing the principle of respect of national identities, insofar as it enables circumvention of the constitutional and statutory provisions of a member state that make access to the legal profession conditional on passing a state examination.

Should the ECJ assess the impartiality and independence of the referring court

Before turning to the merits of the two questions referred by the CNF, both Advocate General WahlFootnote ⁸ and the CourtFootnote ⁹ carefully examined the issue of whether the CNF could be regarded as a ‘court or tribunal’ within the meaning of Article 267 TFEU. The Torresi brothers had argued, in particular, that since CNF members are elected by local Bar Councils, including that of Macerata, they might not provide sufficient guarantees of impartiality when they review decisions of those Councils concerning registration applications lodged by European lawyers.Footnote ¹⁰

The European judiciary was, so to speak, caught between Scylla and Charybdis. On the one hand, the Court in Wilson had ruled that a Luxembourg disciplinary body composed for the most part of lawyers could not be regarded as impartial, for its members may have a common interest to confirm a Bar Council’s decision to reject registration applications by established lawyers, so as to remove from the market a competitor who has obtained his professional qualification in another member state.Footnote ¹¹ On the other hand, more than ten years earlier, the Court in Gebhard had given a preliminary ruling on questions referred by the CNF, thus impliedly recognising that that organ constituted a ‘court or tribunal’ within the meaning of Article 267 TFEU.Footnote ¹²

The Advocate General plotted a rather tortuous course through those perilous waters. First, he distinguished the legal and factual background of Wilson from that of the present case, noting that in Wilson the Court had focused on the independence and impartiality of the Luxembourg bodies not in order to assess the admissibility of a preliminary reference, but for the purposes of Article 9 of Directive 98/5,Footnote ¹³ which requires member states to provide judicial remedies against decisions not to enrol European lawyers in the register of established lawyers. Hence, the Advocate General argued that, when ruling on the admissibility of a reference under Article 267 TFEU, the Court is not required to carry out an in-depth assessment of a national court’s independence and impartiality as it had done in Wilson, for that may lead to regarding a non-negligible number of national judicial organs as unable to submit preliminary references, thus ultimately undermining individuals’ right to judicial protection and hampering the effectiveness of EU law.Footnote ¹⁴ In Advocate General Wahl’s view, when a body is formally regarded as a judicial authority at the national level and domestic provisions are in place to ensure its impartiality, the Court should enquire no further,Footnote ¹⁵ as potential deficiencies in terms of independence and impartiality of those organs are and should remain purely domestic concerns.Footnote ¹⁶

The Advocate General’s reasoning appears distant from the Court’s traditional approach in the interpretation of legal notions employed in EU norms. The Court has consistently held that those notions must be given ‘an autonomous and uniform interpretation’ throughout the EU and that national legal classifications are irrelevant to that effect,Footnote ¹⁷ as the meaning of EU law cannot be adapted to suit the unilateral and uncoordinated preferences of the various national systems.Footnote ¹⁸ A number of Court rulings have applied that approach to the notion of ‘courts and tribunals’ for the purpose of Article 267 TFUE.Footnote ¹⁹ Advocate General Wahl’s reliance on domestic legal classifications, instead, entails the risk of enabling member states to restrict at will the scope of Article 267 TFEU, eluding, in the case of courts of last instance, the duty to submit preliminary references to the Court.Footnote ²⁰

It is thus commendable that the Court followed another, more direct course to navigate between Wilson and Gebhard. After recalling Gebhard in the narrative part of the judgment,Footnote ²¹ the Court noted that, although – just like in Wilson – CNF members are elected by Bar Councils that in turn are elected by lawyers, other safeguards are in place to ensure that CNF members act impartially when reviewing Bar Council decisions concerning registration applications by European lawyers: first, CNF members cannot be simultaneously members of a local Bar Council; second, the CNF is subject to constitutional safeguards on the independence and impartiality of the judiciary as well as to the abstention and recusal rules laid down in the Italian Code of civil procedure; third, the CNF is not a party in proceedings before the Corte suprema di cassazione against its decisions ruling on the actions brought against local Bar Councils, thus acting as a third party in relation to those Bar Councils; fourth, in the case at hand, in accordance with standard practice, the CNF member from the Bar Council whose decision had been challenged before the CNF did not take part in the formation of the judgment by the CNF.Footnote ²²

In view of those arrangements, the Court concluded that the CNF met ‘the requirements of independence and impartiality which are characteristic of a court or tribunal within the meaning of Article 267 TFEU’ and turned to examine the questions referred by that court.Footnote ²³

First things first: abuse of rights and field pre-emption

The Court has consistently held that member states can take measures to prevent their nationals from attempting, under cover of the rights created by EU law, improperly to circumvent their national legislation.Footnote ²⁴ Before delving into the topic of abuse of rights, however, the Court had to overcome another stumbling block: the pre-emptive effects of Directive 98/5.

In its 2006 judgment in Wilson, the Court had ruled that Article 3 of that Directive entailed a complete harmonisation of the prior conditions for practising the legal profession in the host state under the professional title acquired in another member stateFootnote ²⁵ and that, as a consequence, the presentation of a certificate attesting to the registration with the competent authority of the home state was the only condition that the authorities of that state could attach to registration of European lawyers.Footnote ²⁶ Accordingly, the Court had found that Article 3 of the Directive had to be interpreted as precluding the Luxembourg authorities from requiring migrant lawyers to pass a test of proficiency in the three languages used in that country’s legislation.Footnote ²⁷

That approach, referred to by some scholars as ‘field pre-emption’ in line with the United States constitutional lexicon,Footnote ²⁸ is designed to preserve the ‘re-regulatory bargain’ struck by the EU legislature between different goals:Footnote ²⁹ the freedom of establishment, on the one hand, and the protection of consumers and the proper administration of justice, on the other.Footnote ³⁰

While some EU instruments, such as Directive 89/48 and Directive 2005/36, struck that balance by making access to the legal profession in the host state conditional upon passing an aptitude test or undergoing an adaptation periodFootnote ³¹ but thereafter allowing unhindered exercise as a full-fledged member of the host state’s legal profession, other items of EU legislation, such as Directive 77/249 and Directive 98/5, strongly facilitate access, by excluding any prior testing of knowledge,Footnote ³² yet impose some restrictions on exercise, such as requiring European lawyers to practise under their home-country professional title,Footnote ³³ to work in conjunction with lawyers of the host stateFootnote ³⁴ and to comply with the rules of professional conduct both of the home and of the host state.Footnote ³⁵ Against that background, it is plain to see that the Court could not allow the Luxembourg authorities to require Mr Wilson to pass a language test as a condition for registration as an established lawyer, as doing so would have substantially upset the balance struck by the European legislature.Footnote ³⁶

The real crux of field pre-emption, however, lies in its inflexibility.Footnote ³⁷ Indeed, if the Court finds that the EU legislature has comprehensively harmonised a certain matter, member states are precluded from imposing any requirement other than those laid down in EU legislation,Footnote ³⁸ including innocuous formalities and arrangements designed to pursue other goals worthy of protection, such as the prevention of abuse of rights. How could the European judiciary enable member states to take measures to prevent European lawyers from abusing their rights under Directive 98/5 without opening the floodgates to a proliferation at the national level of additional registration requirements?

The Court brilliantly solved that conundrum by assuming that the prohibition on abuse of rights comes into play at an earlier stage than the pre-emptive effects of EU legislation. Put differently, an EU act carrying out comprehensive harmonisation of a given matter does not preclude member states from taking measures to prevent abuse of that act, because in cases of abuse of rights the EU act in question does not apply in the first place,Footnote ³⁹ hence it cannot pre-empt action by member states. Accordingly, the prohibition on abuse of rights, and the ensuing power to adopt anti-circumvention measures at the national level, should be conceived as a sort of ‘implied term’ present in every EU instrument, regardless of its pre-emptive effects.

Abuse of rights under Directive 98/5: migrant lawyers or migrant professional qualifications?

With the question of pre-emption out of the way, the Court could finally turn to the heart of the preliminary reference: could the conduct by the Torresi brothers be regarded as an abuse of the rights conferred to them under Directive 98/5?

In order to answer that question, the Court recalled its well-established case law on abuse of rights,Footnote ⁴⁰ whereby a finding of abuse requires a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved (objective element)Footnote ⁴¹ and the intention to obtain an advantage from the EU rules by creating artificially the conditions laid down for obtaining it (subjective element).Footnote ⁴²

The Court examined the objective element first and looked at the purpose of Directive 98/5. It averred that, since the goal pursued by the European legislature was to facilitate the practice of the profession of lawyer in a member state other than that in which the professional qualification was obtained,Footnote ⁴³ EU nationals can freely choose the member state in which they wish to acquire their professional qualifications and the member state in which they intend to practise their profession.Footnote ⁴⁴ Moreover, the Court noted that Directive 98/5 does not make the right to practise under the home country professional title conditional upon completion of a period of practical experience in the home country.Footnote ⁴⁵ Accordingly, the Court inferred that the objective of Directive 98/5 is fully achieved when a national of member state A travels to member state B to obtain admission to the legal profession under more favourable conditions than in member state A and soon thereafter travels back to member state A to practise as a lawyer there. As the Court found no evidence of the objective element, it concluded, without looking at the subjective element,Footnote ⁴⁶ that no abuse of rights had taken place.Footnote ⁴⁷

However, upon closer examination, the Court’s reasoning appears somewhat incomplete. In particular, both the Court and the Advocate General failed to take any account of the Court’s judgment in Cavallera. Footnote ⁴⁸ Such omission is rather remarkable, given that it was a reading of that ruling that had prompted several Italian Bar Councils to reject registration applications by European lawyers in the presence of circumstances pointing to an abuse of EU law.Footnote ⁴⁹ Moreover, in the order for reference, the CNF had expressly referred to some passages of the Cavallera judgment as the source of its uncertainties as to the interpretation of Article 3 of Directive 98/5.Footnote ⁵⁰ The contents of that ruling, therefore, must be briefly analysed.

In Cavallera, the Court ruled that the provisions of Directive 89/48 on a general system for the recognition of higher education diplomas could not be relied on, for the purpose of gaining access to the profession of engineer in Italy, by an Italian national who had obtained a decision of the Spanish ministry of education that homologated his Italian university degree and enabled him to pursue the profession of engineer in Spain, but did not attest any education or training in Spain and was not based on either an examination taken or professional experience acquired in that member state.Footnote ⁵¹ As Advocate General Maduro noted in his Opinion, the purpose of Directive 89/48 is to facilitate the ‘effective exercise of the freedom of movement’,Footnote ⁵² that is to say a genuine ‘economic and social interpenetration within the [EU]’Footnote ⁵³ that can only be deemed to exist when an EU national has acquired academic or professional education and training in a member state other than his or her state of origin.Footnote ⁵⁴ In contrast, Mr Cavallera’s situation was a ‘purely domestic’ one that had been brought within the scope of EU law ‘by artificial means’.Footnote ⁵⁵ Accordingly, he could not be allowed to exploit Directive 89/48 with the purpose of ‘circumventing the provisions of national law for the purpose of taking up a profession in a Member State without fulfilling the relevant requirements’.Footnote ⁵⁶

Arguably, the same holds true, mutatis mutandis, for Directive 98/5. As the Court acknowledged in Luxembourg v Parliament and Council,Footnote ⁵⁷ in passing that directive ‘the Community legislature, with a view to making it easier for a particular class of migrant lawyers to exercise the fundamental freedom of establishment, has chosen […] a plan of action’ involving ‘gradual assimilation of knowledge through practice, that assimilation being made easier by experience of other laws gained in the home Member State’.Footnote ⁵⁸ Moreover, Directive 98/5 expressly acknowledges that it ‘does not lay down any rules concerning purely domestic situations’ and ‘is without prejudice in particular to national legislation governing access to and practice of the profession of lawyer’.Footnote ⁵⁹ The preamble of that directive also states that ‘by enabling lawyers to practise under their home-country professional titles on a permanent basis in a host Member State, [Directive 98/5] meets the needs of consumers of legal services who, owing to the increasing trade flows resulting, in particular, from the internal market, seek advice when carrying out cross-border transactions in which international law, Community law and domestic laws often overlap’.Footnote ⁶⁰

Apparently, those excerpts point to the situation of lawyers with an established practice in member state A who move to member state B carrying with them the competence and skills acquired in the former state, so as to provide a better service for clients. That situation, in all fairness, is hardly comparable to that of some Italian nationals, who, with the assistance of profit-seeking companies, were able to obtain the title of ‘abogado’ without ever leaving the Italian territory: after attending some online courses they obtained the homologation of their Italian university degree by taking a multiple-choice test at the Italian campuses of select Spanish universities, then had their homologation certificate sent to Spain for registration with a Colegio de Abogados and finally had the relevant documents forwarded to an Italian Bar Council with a view to inclusion in the register of established lawyers.Footnote ⁶¹

Accordingly, one can reasonably wonder what ‘effective exercise of the freedom of movement’ – what ‘economic and social interpenetration within the [EU]’ – took place in those cases, where, as the Italian Council of State aptly put it in Cavallera, there was no ‘migrant holder of professional qualifications’ but rather a ‘migrant degree’ that was mailed to another member state and subsequently sent back to Italy to be relied upon under a different guise?Footnote ⁶² Since the Court held in Cavallera that certificates issued by a member state can only be regarded as a ‘diploma’ for the purposes of Directive 89/48 if they attest to additional qualifications or experience acquired, in whole or in part, in that member state, it would have appeared consistent for the Court to rule that nationals of a member state admitted to practise the legal profession in another member state can only be regarded as ‘lawyers’ for the purposes of Directive 98/5 if they obtain some real additional education or professional experience in the latter member state. But the Court found otherwise.

The two-fold dimension of the principle of respect for national identity

In order to analyse the answer given by the Court to the second question, it is important to point out that the Italian Constitution expressly provides that those seeking to exercise the profession of lawyer must have passed a state examination (Article 33, para 5).Footnote ⁶³ Against this background, the referring Court presents to the Court of Justice a question that brings into the picture a controversial basic principle enshrined in Article 4(2) TEU, namely the ‘national identity’ clause. According to that provision, the Union is required to ‘respect the equality of member states before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’.Footnote ⁶⁴

As apparent from the (admittedly not very numerous) judgments of the Court, and in line with the views expressed by some legal scholars, since its introduction in the primary law of the Union, the national identity clause has acted as a constraint on the EU legislature imposed by the basic Treaties.Footnote ⁶⁵ In fact, the principle of respect for national identities can be invoked before the Court as a ground for judicial review of EU acts – even if adopted, as in the present case, before the codification of that principle – both in direct actions under Article 263 TFEU Footnote ⁶⁶ and in the context of a preliminary reference on validity under Article 267 TFEU.Footnote ⁶⁷ What appears interesting in these judgments is that the Court, far from considering the text of Article 4(2) TEU as a mere statement of principle, adopted a literal interpretation of the clause, deciding on the basis of its own evaluation (and not on the basis of the unilateral indications from the member states concerned)Footnote ⁶⁸ whether or not an EU act impinges upon the ‘national identity’ of member states.Footnote ⁶⁹

This approach needs to be reconciled with the Court’s well-established doctrine that EU law takes precedence over national constitutions.Footnote ⁷⁰ It also appears to diverge from the view expressed by certain commentators,Footnote ⁷¹ according to which the identity clause codifies the doctrine of counter-limits, thus empowering constitutional courts to rule whether an EU law provision undermines fundamental values enshrined in their respective constitutions. It is also true, though, that in its decisions the Court has maintained a strong deference vis-à-vis the discretionary powers of EU action,Footnote ⁷² by avoiding, at least so far, to annul or declare void an EU legal measure for violation of Article 4(2) TEU.

The Torresi judgment appears in line with this judicial path. In the context of the first preliminary question, the CNF referred to the ‘national identity’ clause as a tool for the interpretation of the directive and of the principle of abuse of rights in this specific situation. According to the CNF, the Court should pay due regard to the Italian national identity when interpreting Directive 98/5, thus espousing an interpretation of that directive that does not undermine the constitutional principle that the admission to the profession of lawyer in Italy is conditional upon passing the state examination. In the second question, instead, the CNF invoked the national identity clause as a parameter of validity of the Directive, in case that the interpretation of Article 3 of the directive leads to the conclusion that no abuse of right has taken place in the specific activities carried out by the applicants in the domestic proceedings. In the words of the CNF:

Both Advocate General Wahl and the Court focused on the principle of national identity only in the context of the second preliminary question, which they both answered in the negative. That answer flows from the limited scope of Article 3 of Directive 98/5, namely to lay down the registration procedure migrant lawyers must follow to be admitted to practise under their home country professional title in the host member state. As interpreted by the Court, Article 3 of the Directive does not concern access to the profession of lawyer nor the practice of that profession under the professional title issued in the host member state. It necessarily follows, that an application for registration in the register of lawyers qualified abroad, submitted pursuant to Article 3 of Directive 98/5, ‘is not such as to make it possible to evade the application of the legislation of the host Member State relating to access to the profession of lawyer’Footnote ⁷³. Finding comfort in the position expressed by the Italian government at the hearing, the Court held that Article 3 of Directive 98/5, in so far as it enables nationals of a member state who obtain the professional title of lawyer in another member state to practice the profession of lawyer in the state of which they are nationals under the professional title obtained in the home member state, was not capable of affecting either the fundamental political and constitutional structures or the essential functions of the host member state within the meaning of Article 4(2) TEU.Footnote ⁷⁴ Accordingly, the Court upheld the validity of Article 3 of Directive 98/5.

That conclusion is far from surprising. In Luxembourg v European Parliament and Council,Footnote ⁷⁵ in response to the arguments put forward by the Grand Duchy of Luxembourg in an action for the annulment of Directive 98/5, the Court had taken the view that the circumstance that ‘domestic’ and ‘established’ lawyers are treated differently under that directive is not at odds with the principle of equality. This is because, in the Court’s view, their situations are not comparable:Footnote ⁷⁶ ‘domestic’ lawyers may engage in all the activities reserved to the profession of lawyer in that state, whereas ‘established’ lawyers may be precluded from engaging in certain activities and in the representation or defence of a client in legal proceedings, and may be subject to certain obligations.Footnote ⁷⁷ Since the Court had already upheld the validity of the Directive in the light of the principle of equality, it is understandable that it swiftly dismissed another question of validity concerning the same situation, even if framed in the context of the application of the national identity clause.

However, this is only part of the picture. The answer given by the Court, indeed, fails to consider – probably because the CNF did not expressly highlight this aspect in the order for reference – the connection between Article 3 of Directive 98/5 and Article 10(1) thereof, whereby a lawyer practising under his or her home-country professional title who has, for a period of at least three years, effectively and regularly pursued an activity in the host member state ‘in the law of that State including Community law’ may be admitted to the profession of lawyer in the host member state without being required to meet the condition of an adaptation period not exceeding three years or of an aptitude test. In other words, Article 10 enables ‘foreign’ lawyers to become ‘national’ lawyers after a period of three years, without any evaluation of their professional knowledge of the law of the ‘host’ state.

The advantage given by this provision, arguably, appears nothing short of unwarranted in the case of ‘Italian abogados’. As mentioned in the first part of this comment, in particular when the registration with the Italian authorities takes place immediately after the acquisition of the Spanish professional title, many of the Italian nationals concerned have never really left the Italian territory, so that it will be rather simple for them to meet the requirement of ‘effectively and regularly’ practising Italian law in Italy. In spite of the precautions laid down in Articles 4 (obligation to use the title of the ‘home’ state’) and 5 (obligation to work in conjunction with a lawyer of the ‘host’ state), such practice often takes place before and after the three-year period, without any prior assessment of knowledge and abilities.

It follows that the suggestion made by the European Commission in its submissions before the Court, on the basis of elements taken by Directive 2005/36 on recognition of higher education diplomas,Footnote ⁷⁸ namely that after the three-year period established lawyers could be precluded from obtaining the Italian professional title of avvocato if they acquired no additional professional experience in that country, not only appears incompatible with the wording and purpose of Article 10 Directive 98/5, but also misses the point, namely the acquisition of a fully-fledged professional title by individuals who may well have not acquired the necessary knowledge or professional experience to practise in Italy.

This begs the question whether the Court would have reached a different solution if the CNF had referred to Article 10 in its order for reference. Considering the ‘pro-integration’ interpretation that the Court has consistently given to the directiveFootnote ⁷⁹ and to the ‘national identity’ clause, the answer probably ought to be in the negative. But it is hard to deny that in the ‘Italian abogados’ case important constitutional values were at stake. It is worth remembering that the same Court of Justice has constantly held, in the light of member states’ constitutional traditions, that the application of professional rules to lawyers, in particular those relating to organisation, qualifications, professional ethics, supervision and liability, provides ultimate consumers of legal services with necessary guarantees of integrity and experience and ensures the sound administration of justice.Footnote ⁸⁰ Accordingly, it is difficult to understand why a member state cannot pursue the same objectives in a situation, such as that of the Italian abogados, where a person seeks to acquire a full professional title of practising lawyer in that member state without providing proof of practical experience in any law or sitting a Bar exam. Admittedly, the Court in Luxembourg v EP and Council conceded that the ‘gradual assimilation of knowledge through practice’ that a ‘migrant’ lawyer enjoys under the directive is ‘made easier’ and therefore justified by ‘experience of other laws gained in the home Member State’.Footnote ⁸¹ But in the situation submitted to the Court in Torresi no such ‘experience of other laws’ takes place, at least not as a practitioner, since many Italian abogados decided to leave Spain immediately after the acquisition of the relevant title, and this behavior was not regarded as ‘abusive’ by the Court in the answer given to the first preliminary question. Viewed from this perspective, it is not so obvious that the Directive fully respects the national identity of the Italian state, as expressed in Article 33(5) of its Constitution.

Perhaps a different answer to the questions posed by the Italian court would have indirectly called into question the Spanish system of qualifications of lawyers, according to which (at least before the 2006 amendment of the relevant rules, which came into force in its entirety only in 2014)Footnote ⁸² access to the legal profession is automatic with the acquisition of the licenciatura en derecho and registration with a Colegio de abogados. Therefore, also in the light of other more or less ‘abusive’ practices on the horizon, a fuller harmonisation of the national rules concerning the acquisition of the title of ‘lawyer’ appears to be the way forward.