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 legislation Tri-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 legislation 3 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 observed and 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 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]) 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

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 22

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