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 77/249 of 22 March 1977 which is limited to activities of the provision of services restricts itself to laying down the principle of mutual recognition of lawyers as defined in the various Member States. A person entitled to pursue his professional activities as a “lawyer” in one Member State may thus exercise that activity in another Member State (Art. 2) , adopting the professional  …

Freedom to provide services

Directive No 77/249 of 22 March 1977 which is limited to activities of the provision of services restricts itself to laying down the principle of mutual recognition of lawyers as defined in the various Member States. A person entitled to pursue his professional activities as a “lawyer” in one Member State may thus exercise that activity in another Member State (Art. 2) , adopting the professional title used in the Member State from which he comes with an indication of the professional organization by which he is authorized to practice or the court of law before which he is entitled to practice (Art. 3).

The directive's aim is specifically to facilitate the exercise of the profession of lawyer with regard to the rules of professional conduct by subjecting the activities of the lawyer to different regimes depending on whether they are of a judicial or extrajudicial nature. 

Judicial activities (representation of clients in legal proceedings) must be exercised in each host Member State under the conditions laid down for lawyers established in that State, with the exception of any conditions requiring residence, or registration with a professional organization, in that State (Art. 4(1)). Thus, the refusal, on the part of the competent authorities of a Member State, to issue a router for access to the private virtual network for lawyers to a lawyer duly registered at a Bar of another Member State, for the sole reason that that lawyer is not registered at a Bar of the first Member State, in which he wishes to practise his profession as a free provider of services, in situations where the obligation to work in conjunction with another lawyer is not imposed by law, constitutes a restriction on the freedom to provide services . Required to submit to a dual set of rules, a lawyer pursuing these activities must observe the rules of professional conduct of the host Member State, without prejudice to his obligations in the Member State from which he comes (Art. 4(2)). Thus, a lawyer bound to observe the rules of professional conduct in force in the host Member State under Articles 4 and 7 of Directive No 77/249 of 22 March 1977 may not rely on the provisions of this Directive where he has been barred from access to the legal profession by the latter Member State for reasons relating to dignity, good repute and integrity . The host Member State may require lawyers to be introduced, in accordance with local rules or customs, to the presiding judge and, where appropriate, to the President of the relevant Bar in that State and 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” or “procuratore” practising before it (Art. 5) . A national law may not however require the lawyer providing the service to be accompanied by a resident lawyer for judicial actions for which mandatory assistance by a lawyer is not required . Likewise, where recourse to a lawyer established in the place of the court before which the proceedings have been brought is required, a national law which excludes the costs associated with the appointment of a European lawyer from the amount to be paid by an unsuccessful party to a dispute, obstructs the freedom to provide services. Parties to legal proceedings would in effect be strongly discouraged from having recourse to lawyers established in other Member States if they had to bear their costs regardless of the outcome of the dispute . Lastly, a Member State may only exclude lawyers who are in the salaried employment of a public or private undertaking from pursuing activities relating to the representation of that undertaking in legal proceedings if lawyers established in that State are not permitted to pursue those activities (Art. 6).

For the pursuit of activities not relating to the representation of a client in legal proceedings or before public authorities, the lawyer is subject to the conditions and rules of professional conduct of the home Member State and must also observe the rules governing the profession in the host Member State , where they are capable of being observed by a lawyer who is not established in the host Member State and to the extent to which their observance is objectively justified to ensure, in that State, the proper exercise of a lawyer's activities, the standing of the profession and respect for the rules concerning incompatibility (Art. 4(4)). 

Finally, in conformity with Article 51 TFEU, which excludes from the scope of application of the right to establishment and by referral from Article 62, the freedom to provide services, “activities which in that State are connected, even occasionally, with the exercise of official authority” , the directive allows Member States to “reserve to prescribed categories of lawyers the preparation of formal documents for obtaining title to administer estates of deceased persons, and the drafting of formal documents creating or transferring interests in land” (Art. 1(1)) . 

For an example of its application, see Case 292/86 Gullung [1988] ECR 111, LawLex200900001823JBJ, confirming that a person who is a national of two Member States and who is admitted to the legal profession in one of those states may rely on the provisions of Directive No 77/249 to facilitate the effective exercise by lawyers of freedom to provide services in the territory of the other Member State.

Case C-99/16 Lahorgue, Judgment of 18 May 2018, LawLex201800001470JBJ.

Case 292/86 Gullung [1988] ECR 111, LawLex200900001823JBJ.

For an application, see Case C-739/19 VK, Judgment of 10 March 2021, LawLex202100004329JBJ, specifying however that while the obligation for a visiting lawyer to work  in conjunction with a lawyer who practices before the judicial  authority seized in a system in which they both have the possibility of defining their respective roles, the lawyer who practices before that judicial authority assisting the visiting lawyer in order to ensure the proper representation of their client and the proper fulfillment of his or her duties to that judicial authority is not disproportionate in the light of the objective of the  proper administration of justice, it goes beyond what is necessary to attain that objective where it does not allow account to be taken of  the experience of the visiting lawyer.

Case 427/85 Commission v Federal Republic of Germany [1988] ECR 1123, LawLex201100000627JBJ, holding that a national law that requires, without any possible exception, that the lawyer providing services is to be accompanied by a national lawyer if he visits a person held in custody and is not to correspond with that person except through the said lawyer is also in violation of Directive No 77/249. See also Case C-294/89 Commission v France [1991] ECR I-3591, LawLex201100000473JBJ, holding that the rule of territorial exclusivity which reserves the right to plead to lawyers before a court within whose area of jurisdiction they are established, cannot be applied to activities of a temporary nature pursued by lawyers established in other Member States, since the conditions of law and fact which apply to those lawyers are not in that respect comparable to those applicable to lawyers established on the host territory.

Case C-289/02 AMOK Verlags v A & R Gastronomie [2003] ECR I-15059, LawLex200900001411JBJ.

Especially those concerning the incompatibility between exercising the activity of lawyer and that of other activities in that State, professional secrecy, relations with other lawyers, the prohibition on the same lawyer acting for parties with mutually conflicting interests, and publicity.

See esp. Case 2/74 Reyners v Belgian State [1974] ECR 631, LawLex200900001650JBJ, holding that the most typical activities of the profession of lawyer such as consultation and legal assistance and also representation and the defense of parties in court cannot be considered as connected with the exercise of official authority.

This provision would appear to take into account the aptitude recognized for solicitors in the UK and Ireland to prepare formal documents and therefore gives the possibility to the other Member States not to allow them to prepare for such documents on their territory.

European Business Law

148. Freedom to provide services

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148. Freedom to provide services

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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