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

There are two principal obstacles to the effective achievement of the “free movement” of lawyers within the EU. First of all, although in order to provide services outside the country in which they are established and where they generally will have received their qualification and training, lawyers are not required to have in-depth knowledge of the law of the country where the services will be pro …

Context

There are two principal obstacles to the effective achievement of the “free movement” of lawyers within the EU. First of all, although in order to provide services outside the country in which they are established and where they generally will have received their qualification and training, lawyers are not required to have in-depth knowledge of the law of the country where the services will be provided - as such services will more often than not concern the law of their home country or international law - this is not the case where freedom of establishment is used to exercise activities of legal representation and assistance in proceedings in another Member State. So, although the training of doctors, architects and engineers is necessarily similar regardless of the country of origin, the training of lawyers differs from one country to another. However, the exercise of the freedom would be virtually impossible if the obtention of the national qualification was required for the establishment of lawyers. The difficulty is increased in the case of lawyers because of the close links between the exercise of their activities and the functioning of the public justice system. Therefore, deregulation came only very gradually. The freedom to provide services in application of Article 56 TFEU was first recognized by the case law , before being enshrined by Directive No 77/249 of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services . 

The road was longer for freedom of establishment. As there was no legislation for a certain time, the European courts, on the basis of Article 49 TFEU, considered that the access of a lawyer from one Member State to establishment in another Member State could not be refused despite the absence of directives of application as prescribed by Article 49 TFEU , and that the requirement of a national diploma from the country of establishment in order to exercise that activity was contrary to the freedom of establishment if the qualification obtained by the interested party had enabled him to sit in his home country the advocate's professional qualifying examinations, which he had passed . On the other hand, according to the ECJ, making the access to a profession subject to an obligation of registration at a bar was justified as it ensured the observance of moral and ethical principles and the disciplinary control of the activity of lawyers . With regard to the “dual practice” principle, the European court has specified that the right to establishment includes freedom to set up and maintain, subject to observance of the professional rules of conduct, more than one place of work within the EU . Ultimately, the right to establishment for lawyers, whether in a self-employed or a salaried capacity , was enshrined by Directive No 98/5 of 16 February 1998 . The Court of Justice deems that the choice of method and level of protection of consumers and the proper administration of justice of the EU legislature at the drafting stage of the directive, which consists of a system of a priori testing of qualification in the national law of the host Member State, a plan of action combining consumer information, restrictions on the extent to which or the detailed rules under which certain activities of the profession may be practised, a number of applicable rules of professional conduct, compulsory insurance, as well as a system of discipline involving both the competent authorities of the home Member State and the host State, without abolishing the requirement that the lawyer concerned should know the national law applicable in the cases he handles, does not overstep the limits of its discretion .

The concept of lawyer is interpreted uniformly under European law. Whether it be in relation to permanent establishment in another Member State or for the provision of certain services, lawyers are defined by two “lawyers'” directives as any person who is a national of a Member State and who is authorized to pursue his professional activities under one of the professional titles listed (Directive No 77/249, Art. 1(2) and Directive No 98/5, Art. 1(2) . As the list is exhaustive, the lawyers' directive does not apply to legal trainees , trainees carrying out practice courses (praticante avvocato)  or patent attorney litigators .

The “Qualifications” Directive No 2005/36 of 7 September 2005 on the recognition of professional qualifications , which consolidated several sector-specific Directives  into one document, did not affect the lawyers' directives which do not concern the recognition of professional qualification but the right to practice. However, due to the general nature of its scope of application, the system of recognition of professional qualifications set out in Directive No 2005/36 also applies to lawyers “for the purpose of immediate establishment” under the professional title of the host Member State (Directive No 2005/36, pt 42). A lawyer practising under his home-country professional title in a host Member State may therefore apply to have his diploma recognized by means of a general system of recognition which provides for an evaluation procedure based specifically on knowledge of the language .

Although the Services Directive (see Nos 11.03 et seq.) does not expressly exclude the profession of lawyer from the scope of its application , unlike the profession of bailiffs and notaries, matters covered by Directive No 77/249 are not covered by Article 16 on the freedom to provide services (Directive No 2006/123, Art. 17), and the provisions of Directive No 98/5 relative to the requirements in respect of registration with the competent authority of the host Member State do not concern Article 5 relative to the simplification of the procedure . 

Case 33/74 van Binsbergen [1974] ECR, LawLex200900001962JBJ; Case C-55/94 Reinhard Gebhard c. Consiglio dell'Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165, LawLex200900001056JBJ; Case C-145/99 Commission v Italy [2002] ECR I-2235, LawLex200900000574JBJ.

Council Directive No 77/249 of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services, OJEC L 78 of 26 March 1977, 17-18.

Case C-345/08 [2009] ECR I-11677, LawLex201100000394JBJ.

Case C-313/01 Morgenbesser [2003] ECRI-3467, LawLex201100000482JBJ.

Case T-487/07 Imperial Chemical Industries [2008] ECR II-227, LawLex201100000240JBJ, which, in order to obtain a uniform European interpretation of the concept, referred to the definition of lawyer used in Directives 98/5 and 77/249 in refusing to qualify an Attorney Litigator as lawyer representing the parties before the European courts within the meaning of Article 19 of the Statute of the Court of Justice. 

OJEU L 255 of 30 Septembre 2005, 22-142, which also replaces Directive No 89/48 of 27 November 1991 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration, OJEC L 19 of 24 January 1989, 16-23.

Directives concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor.

Directive No 98/5, Art. 10(2): "A lawyer practising under his home-country professional title in a host Member State may, at any time, apply to have his diploma recognized in accordance with Directive No 89/48/EEC with a view to gaining admission to the profession of lawyer in the host Member State and practising it under the professional title corresponding to the profession in that Member State."

In compliance with the principle of lex specialis implicitly set out in Article 3, the "Services" directive only applies to matters not covered by the "Lawyers" directives. Where there is a conflict between the provisions, the latter will prevail.

Directive No 2006/123, Art. 5(3) and (4): "3. Where Member States require a provider or recipient to supply a certificate, attestation or any other document proving that a requirement has been satisfied, they shall accept any document from another Member State which serves an equivalent purpose or from which it is clear that the requirement in question has been satisfied. They may not require a document from another Member State to be produced in its original form, or as a certified copy or as a certified translation, save in the cases provided for in other Community instruments or where such a requirement is justified by an overriding reason relating to the public interest, including public order and security (…) 4. Paragraph 3 shall not apply to the documents referred to in (…) in Article 3(2) of Directive No 98/5/EC of the European Parliament and of the Council of 16 February 1998 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 (…)".

Case 2/74 Reyners v Belgian State [1974] ECR 631, LawLex200900001650JBJ.

Case 71/76 Thieffry v Conseil de l'ordre des avocats de la Cour de Paris [1977] ECR 765, LawLex200900002009JBJ. See also C-340/89 Vlassopoulou v Ministerium für Justiz, Bundes- u. Europaangelegenheiten Baden-Württemberg [1991] ECR I-2357, LawLex200900000398JBJ, requiring the host Member State to take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned has acquired in another Member State by making a comparison between the specialized knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules; C-104/91 Criminal proceedings against Aguirre Borrell and others [1992] ECR I-3003, LawLex200900000323JBJ, holding that a request for access to a profession subject to a the possession of a diploma or a professional qualification requires the Member State to assess the equivalence of the foreign diploma exclusively in the light of the level of knowledge and qualifications which its holder can be assumed to possess in the light of that diploma, having regard to the nature and duration of the studies and practical training to which the diploma relates.

Case 292/86 Gullung v Conseils de l'ordre des avocats du barreau de Colmar et de Saverne [1988] ECR 111, LawLex200900001823JBJ.

Case 107/83 Ordre des avocats au barreau des Paris v Klopp [1984] ECR 2971, LawLex200900001465JBJ.

A lawyer may practise as a salaried lawyer in the host Member State only to the extent that the host Member State so permits for lawyers registered under the professional title used in that State (Dir. No 98/5, Art. 8).

Dir. No 98/5 of 16 February 1998 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, OJEC L 77 of 14 March 1998, 36-43. In France, the directive was transposed in Law No 71-1130 of 31 December 1971 reforming certain legal and judicial professions.

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

Belgium: Avocat/Advocaat/Rechtsanwalt; Denmark: Advokat; Germany: Rechtsanwalt; Greece: Dikigoros; Spain: Abogado/Advocat/Avogado/Abokatu; France: Avocat; Ireland: Barrister/Solicitor; Italy: Avvocato; Luxembourg: Avocat; Netherlands: Advocaat; Austria: Rechtsanwalt; Portugal: Advogado; Finland: Asianajaja/Advokat; Sweden: Advokat; UK: Advocate/Barrister/Solicitor.

European Business Law

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Les décisions de justice citées dans ce paragraphe :

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147. Context

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Les décisions de justice citées dans ce paragraphe :

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