European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Directive No 98/5 of 16 February 1998 pursues a dual objective: the mutual recognition of the professional title of lawyers wishing to practice under their home-country professional title on a permanent basis and the integration into the profession of lawyer in the host Member State. Any lawyer is entitled to pursue their activity on a permanent basis in any other Member State under his home-count …

 Practice under the home-country professional title

Directive No 98/5 of 16 February 1998 pursues a dual objective: the mutual recognition of the professional title of lawyers wishing to practice under their home-country professional title on a permanent basis and the integration into the profession of lawyer in the host Member State. Any lawyer is entitled to pursue their activity on a permanent basis in any other Member State under his home-country professional title (Article 2(1)). 

To be able to practise in a Member State other than the one in which they originally qualified, lawyers register with the competent authority in the host Member State, which may require that the certificate of registration be not more than three months old. The competent authority informs its counterpart in the home Member State of the registration (Art. 3(2)) . There is therefore no abuse in the fact that a national of a Member State practises the profession of lawyer under the professional title obtained in another Member State after successfully obtaining a university degree to acquire there the professional qualification of lawyer .  National legislation may require for such registration the possession of the knowledge and qualifications needed and may make exemptions from the training and diploma requirements and from the certificate of competence to exercise the profession of lawyer subject to the person having performed legal work in the field of  national law, and exclude from the scope of that exemption officials, members or former members of the EU civil service who have performed legal work in that capacity, in one or more fields of EU law, provided that it does not exclude account from being taken  of legal work involving the practice of national law . In the United Kingdom and Ireland, lawyers from other Member States must register either with the authority responsible for the profession of barrister or advocate or with the authority responsible for the profession of solicitor (Art. 3(3)) . Decisions refusing or cancelling such registration must state the reasons on which they are based and a remedy must be available against such decisions in accordance with the provisions of domestic law (Art. 9). In principle, the body called upon to review appeals against decisions refusing registration must be a court or tribunal as defined by European law in order to ensure effective judicial protection of the rights laid down in Directive No 98/5. However, the preliminary recourse to a non-judicial body is not excluded provided that an effective remedy is available before a court or tribunal which is competent to give a ruling on both fact and law  within a reasonable period of time. 

The lawyer practising in a host Member State under his home-country professional title must do so under that title, which must be expressed in the official language or languages of his home Member State, in an intelligible manner and in such a way as to avoid confusion with the professional title of the host Member State (Art. 4) . The ECJ considers that consumer protection is adequately ensured by this obligation as clients are properly informed that the professional to whom they entrust the defense of their interests has not obtained his qualification in the host Member State and that his initial training did not necessarily cover the host Member State's national law .

2) Practice under the home-country professional title 

A lawyer practising under his home-country professional title carries on the same professional activities as a lawyer practising under the relevant professional title used in the host Member State and may, inter alia, give advice on the law of his home Member State, on European law, on international law and on the law of the host Member State. He must comply with the rules of procedure applicable in the national courts (Art. 5(1)). The migrating lawyer may not prepare deeds for obtaining title to administer estates of deceased persons and for creating or transferring interests in land where those activities are reserved for professions other than that of lawyer (Art. 5(2)). A national law may not however prohibit lawyers from being persons authorized to accept service addresses on behalf of companies when the directive does not provide for such a prohibition . Activities relating to the representation or defense of a client in legal proceedings can moreover be reserved to lawyers practising under the professional title of the host State. Lawyers practising under their home-country professional titles may therefore be required to work in conjunction with a lawyer who practises before the judicial authority in question and who would, where necessary, be answerable to that authority or with an “avoué” practising before it. In order to ensure the smooth operation of the justice system, Member States may lay down specific rules for access to supreme courts, such as the use of specialist lawyers (Art. 5(3)). Lastly, lawyers may practise on a permanent basis in the host Member State without being required to obtain prior training in that State. This does not constitute discrimination with regard to national lawyers since the situation of a migrant lawyer practising under his home-country title who may be restricted from pursuing certain activities and subject to certain obligations, and the situation of a lawyer practising under the professional title of the host Member State are not comparable . 

3) Rules of professional conduct and disciplinary proceedings 

The migrating lawyer must observe two sets of rules of professional conduct. He must observe the rules of professional conduct to which he is subject in his home Member State and in the host Member State in respect of all the activities he pursues in its territory. Lawyers practising under their home-country professional titles must be granted appropriate representation in the professional associations of the host Member State with at least the right to vote in elections to those associations' governing bodies. The host Member State may require a lawyer practising under his home-country professional title either to take out professional indemnity insurance or to become a member of a professional guarantee fund in accordance with the rules which that State lays down for professional activities pursued in its territory unless the lawyer is covered by equivalent insurance taken out or a guarantee provided in accordance with the rules of his home Member State (Art. 6). Lawyers are required in particular and in accordance with the Rules of Professional Conduct adopted by the Council of the Bars and Law Societies of the European Union (CCBE) not to handle matters which they know or ought to know they are not competent to handle, for instance owing to lack of linguistic knowledge. According to the ECJ, which is normally against all forms of linguistic testing, the registration of a lawyer with the competent authorities of the host member States may not be subject to the requirement that the lawyer sit an oral examination to verify whether he/she is proficient in the language or languages of the State, insofar as the protection of clients is sufficiently guaranteed by the rules of professional conduct the lawyer is bound to observe under the directive . In the event of failure by a lawyer to fulfil the obligations, disciplinary proceedings may be brought by the competent authority of the host Member State according to its rules of procedure. The competent authority of the home Member State must be informed by the competent authority of the host Member State before initiating disciplinary proceedings. The same obligation applies where disciplinary proceedings are initiated by the competent authority of the home Member State. The competent authority in the home Member State decides what action to take, under its own procedural and substantive rules, in the light of a decision of the competent authority in the host Member State. The temporary or permanent withdrawal by the competent authority in the home Member State of the authorization to practise the profession automatically leads to the lawyer concerned being temporarily or permanently prohibited from practising in the host Member State (Art. 7). In all cases, the competent authority in the host Member State and the competent authority in the home Member State must collaborate closely and afford each other mutual assistance in order to facilitate the application of the directive (Art. 13). This close cooperation precludes the requirement that European lawyers produce each year a certificate attesting to registration with the competent authority in their home Member State .

One or more lawyers who belong to the same grouping in their home Member State may pursue their professional activities in a branch or agency of their grouping in the host Member State under their home-country professional title. However, where the fundamental rules governing that grouping in the home Member State are incompatible with those of the host Member State, the latter rules prevail insofar as compliance with them is justified by the public interest in protecting clients and third parties (Art. 11(1)). The forms of joint practice available in the host Member State must be accessible to lawyers from the same home Member States or the same grouping (Art. 11(2)). Joint practices must also be permitted for lawyers from different Member States including the host Member State . Where the grouping includes persons who are not members of the profession of lawyer, the host Member State may refuse to allow joint practice (Art. 11(5)) .

According to the ECJ, the requirement that lawyers be registered at a bar to practice in a Member State was justified in order to ensure the observance of moral and ethical principles and the disciplinary control of the activity of lawyers: Case 292/86 Gullung [1988] ECR 111, LawLex200900001823JBJ. On the other hand, see Case C-431/17 Monachos Eirinaios, Judgment of 7 May 2019, LawLex201900001253JBJ: Article 3(2) of Directive No 98/5 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 precludes national legislation which prohibits a lawyer who has the status of monk, and who is registered as a lawyer with the competent authority of the home Member State, from registering with the competent authority of the host Member State in order to practice there under his home-country professional title  on account of the incompatibility under that legislation between the status of monk and practice of the profession of lawyer.

Case C-58/13 Torresi, Judgment of 17 July 2014, LawLex201400002254JBJ. 

Case C-193/05 Commission v Grand Duchy of Luxembourg [2006] ECR I-8673, LawLex200900001050JBJ.

In France, a lawyer registered under his home-country professional title in another Member State is authorized to practice within a grouping or in its name under the title of lawyer provided that more than half the capital and the voting rights are held by such a professional, the remaining capital and voting rights are held by lawyers or one of the other judicial or legal 'liberal professions' subject to a legal or regulatory status for which the title is protected, that those holding management, administrative and control powers exercise their profession within or in the name of the grouping and that the use of the name of the grouping is reserved solely for lawyers: Law No 71-1130 of 31 December 1971, Art. 87.

Case C-218/19 Adina Onofrei, Judgment of 17 December 2020, LawLex202100004363JBJ.

In the United Kingdom, the authority responsible for a barrister from Ireland is that responsible for the profession of barrister or advocate, and the authority responsible for a solicitor from Ireland is that responsible for the profession of solicitor. In Ireland, the authority responsible for a barrister or an advocate from the United Kingdom is that responsible for the profession of barrister, and the authority responsible for a solicitor from the United Kingdom is that responsible for the profession of solicitor.

Proceedings invalidated because heard at first instance and on appeal by a non-judicial body and a judicial review by the Court of Cassation of the law but not of the facts: Case C-506/04 Graham J. Wilson [2006] ECR I-8613, LawLex200900001011JBJ.

"A host Member State may require a lawyer practicing under his home-country professional title to indicate the professional body of which he is a member in his home Member State or the judicial authority before which he is entitled to practice pursuant to the laws of his home Member State. A host Member State may also require a lawyer practicing under his home-country professional title to include a reference to his registration with the competent authority in that State".

Case C-168/98 Grand Duchy of Luxembourg [2000] ECR I-9131, LawLex201100000645JBJ.

Case C-506/04 Graham J. Wilson [2006] ECR I-8613, LawLex200900001011JBJ. Also Case C-193/05 Commission v Grand Duchy of Luxembourg [2006] ECR I-8673, LawLex200900001050JBJ.

European Business Law

149. Practice under the home-country professional title

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149. Practice under the home-country professional title

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise