The Free Movement of Lawyers and Legal Services within the EU

Clare Titcomb

International Policy Adviser (Europe and CIS)

The Law Society of England and Wales

Summary

• Development through case law

• Development through secondary legislation

• Recent developments

• Benefits and Limitations

Development through case law• Fundamental freedoms protected by the Treaty• No secondary legislation developed until 1977• Judicial activism developed rights in this area• Reyners [Case 2/74] (freedom of establishment) &

Van Binsbergen [Case 33/74] (freedom to provide services)– Discriminatory national measures not

permitted– Treaty rights directly applicable in lieu of

secondary legislation– Public service exception not applicable to

lawyers

Development through case law• Non-discriminatory national measures not permitted but

discrimination against nationals is permitted– Klopp [Case 107/83]

• Establishment in more than one Member State permitted• National rules against establishment of more than one office within a Member

State permitted – Vlassopoulou [Case 340/89]

• Equivalence of professional qualifications from another Member State should be assessed in considering access to host State Bar

Development through case law

• ECJ doctrine – objective justification for any restrictions on fundamental freedoms – Gebhard [Case C-55/94] - National rules which are liable

to hinder or make less attractive the exercise of the fundamental freedoms must fulfil 4 criteria:

• applied in a non-discriminatory manner• justified by imperative requirements in the general interest• suitable for securing the attainment of the objective• must not go beyond what is necessary

Development through case law

• Secondary legislation evolved to support fundamental freedoms in the Treaty

• ECJ case law used where secondary legislation does not exist

• Member State discretion in the implementation of secondary legislation

• ECJ case law used to determine whether Member State implementation is lawful

Development through legislationTri-partite system of free movement of lawyers:• Lawyers Services Directive (77/249/EEC) free

movement through temporary services • Diplomas Directive (89/48/EC) replaced by

(2005/36/C) free movement through full integration

• Lawyers Establishment Directive (98/5/EC) free movement through permanent establishment which may lead to full integration

Development through legislation3 categories of lawyers – Luxembourg v European Parliament and Council [Case C-168/98]:• Lawyers who maintain home State title and

home State establishment and offer temporary services in another State

• Lawyers who become full members of host State profession

• Lawyers who maintain home State title but are permanently established in host State

Options for practice in another Member State• Practice under home State title– Temporary Services –exercise of home

State profession in host State– Permanent Establishment – exercise of host

State profession under home State title• Practice under host State title– Permanent Establishment – adaptation

period– Re-qualification – aptitude test

Practice Under Home Title - Activities• Services (Art. 1 &

4)– Home State law– Host State law (with

restrictions)– EC law– International law

• Establishment (Art. 4)– Home State law– Host State law (with

restrictions)– EC law– International law

Practice Under Home Title – Reserved Areas• Services

– Probate and conveyancing (Art. 1)

– Legal proceedings (Court)

• Can require introduction to judge/Bar President (Art. 5.1)

• Can require co-operation with a local lawyer (Art. 5.2)

• Commission v Germany [C-427/85] – can’t use Art. 5.2 to require a local lawyer to be constantly present

• Establishment – Probate and

conveyancing (Art. 5.2)– Legal proceedings

(Court)• Can require co-

operation with a local lawyer (Art. 5.3)

• Can reserve access to supreme courts to special category of lawyer (Art. 5)

Practice Under Home Title - Conduct• Services

– Legal advice (Art 4.4)• Home rules apply• Host rules apply on:

– incompatibility of lawyers activities with other activities

– professional secrecy– relations with other

lawyers– conflicts – publicity If capable of being

observedand objectively justified

– Legal proceedings (court work) (Art 4.2)

• Host rules apply

• Establishment

– Host rules apply (Art. 6.1)

– Home rules also apply

– Conflict – host rules prevail

– Insurance – home State insurance can be used if equivalent to host State insurance

Practice Under Home Title - Discipline• Services

– Breach of host rules – host State body discipline (Art. 7.2)

– Host State body must inform home State body (Art. 7.2)

• Establishment

– Breach of host rules – host State body discipline (Art. 7.1)

– Home State informed (Art. 7.2)

– Co-operation between host and home States (Art. 7.3)

– Home State body can also take action (Art. 7.4)

– Loss of right to practice in home State = automatic loss in host State (Art. 7.5)

Practice Under Home Title - Registration• Services

– Host State cannot require it even for court work (Art. 4.1)

– Host Bar can require proof of qualification (Art. 7.1)

– Legal proceedings – can require introduction to judge/Bar President (Art. 5.1)

• Establishment

– Must register with host Bar (Art. 3.1)

– Can require certificate of attestation (Art. 3.2)

– Practice of requiring criminal records check

Practice Under Home Title – Forms of Practice• Services

– Salaried practice – can exclude salaried lawyers from representing employer if prohibited in host State (Art. 6)

• Establishment – Salaried practice – allowed if

host State permits it (Art. 8)– Joint Practice

• Branch or agency (Art. 11.1) unless:

– prohibited by host law; and– public interest justification

• All forms open to local lawyers (Art. 11.2)

• Mix of local and EU lawyers (11.3)

• MDPs – only if permitted in host State (11.5)

– Name of home State grouping – can require use of host State words to indicate form of joint practice (Art. 12)

Service v Establishment - Gebhard [Case C-55/94]

• Services

– Services provided on a temporary basis

– Office infrastructure permitted

• Establishment

– Activities exercised on a stable and continuing basis

– CCBE – Secondment exception – 12 months

Practice Under Host Title - Overview

• Diplomas Directive– General system for

the recognition of qualifications for all regulated professions (including lawyers)

– Integration into host profession

• Establishment – Specific regime for

lawyers– Integration into

host profession

Practice Under Host Title – Route to Re-qualification • Diplomas Directive:

– Requirement to review an applicant’s knowledge and experience (Vlassopoulou [Case 340/89])

– Compensatory measures (Art 14):

• adaptation period; or • aptitude test (in national

language);– Member States discretion:

• adaptation period or aptitude test if precise knowledge of national law is required for profession (Art. 14.3)

• content of aptitude test – subject to proportionality (Art. 14.5)

• Commission v Italy [Case C-145/99] aptitude test may not be more demanding than qualification for national lawyers

• Establishment:– Effective and regular practice

of host State law for 3 years (Art. 10.1)

– Aptitude test under Diplomas Directive (Art. 10.2)

– Effective and regular practice for 3 years but practice of host State law for less than 3 years taking into account knowledge and professional experience gained, including attendance at courses (Art. 10.3 ) (a codification of Vlassopoulou [Case 340/89])

Recent Developments – Trainee Lawyers• Morgenbesser [Case C-313/01]:

– Ms Morgenbesser – French law degree tried to register as a trainee (practicanti) in Italy

– Services, Diplomas and Establishment Directives – only apply to qualified professionals

– ECJ referred to Vlassopoulou [Case 340/89]) – contrary to free movement if host State does not take into account knowledge and experience gained in another Member State

– Effect of decision – a person in process of qualifying in one Member State can move to another Member State and continue the process of qualification

– Extends Vlassopoulou to people not yet qualified to exercise a profession in a Member State

Recent Developments – Framework Services Directive (123/2006)• Implementation deadline of 28 December 2009• Framework directive for all services • Top-up directive for lawyers - Services and Establishment

Directives prevail• Intended to encourage greater mobility whilst highlighting

core values for example:– will outlaw total prohibitions on advertising– highlights need to ensure that where MDPs are permitted, they

respect the core values of the profession – independence, professional secrecy and conflicts of interests

• Particular focus will be authorisation processes for service providers (e.g. registration and establishment through a point of single contact)

Conclusions –Limitations

• Unequal exchanges of lawyers across the EU Member States

• Only applies to fully qualified lawyers (Morgenbesser application is undeveloped)

• Other limitations to the free movement (i.e. differing insurance premiums)

Conclusions – Benefits

• Flexibility and respect for national systems i.e. it is not:– an EU-wide reorganisation of professions– a direct harmonisation of professional rules

• New opportunities for international work for EU advocates

• Continuous development of the internal market means an overall increase in legal work for EU advocates

Questions?

• Ask me now…Or• E-mail me:

clare.titcomb@lawsociety.org.uk