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Th e Ed u c a t i o n , Li c e n s i n g , a n d Tr a i n i n g o f La w y e r s in t h e Eu r o p e a n Un i o n , Pa r t I: Cr o s s -Bo r d e r Pr a c t i c e in t h e Me mb e r St a t e s

by Julian Lonbay

In t r o d u c t i o n authorities cope with cross-border practice in the context of this new European Community (EC) have an important role to play in the environment. Lastly the article delves into the train- societies within which they work. They are the key ing regimes operating in to see how the EC protectors of fundamental rights and freedoms, they and the European dimension are having an impact play a pivotal role in the life of the system, and on them. In the process, the role of the Council of they are vital for the promotion and protection of the Bars and Law Societies of Europe (CCBE) will be . For these reasons, European Union (EU) mentioned as appropriate. member states and other countries regulate entry into the in the interests of the citizens What Is a “” in Europe? and the clients for whom lawyers act. The licensing authorities strive to ensure that the lawyers admit- There are about 50 independent states in Europe, ted to practice have the appropriate competence and within a land mass slightly larger than that of skills for use in the service of society. the , depending on how one defines “Europe.” There are well over 700 million inhabit- These national licensing processes are primarily ants, and they are served by more than 700,000 designed to fit the lawyers normally present and pro- lawyers. duced within the country or region. Thus it is hardly surprising that applying these processes to non- There are several distinct legal traditions operat- nationally trained lawyers and to lawyers trained ing, the most notable and well-known ones being in one who seek to practice in others the systems and the systems. causes some difficulties to arise. Similarly, a student Each country has its own legal order and traditions with a law degree from one country who seeks entry when it comes to and training and into another country’s legal training process may the licensing of lawyers. Indeed, both the tasks encounter obstacles. This article elaborates on and performed by lawyers and the professions that they explains some of these difficulties and obstacles and operate within vary from state to state. Thus one the attempts to overcome them. cannot easily talk of a European mode of delivering legal education and training;1 moreover, the system The article first outlines the nature and variety for licensing lawyers varies from state to state, and of legal professions active in Europe with a brief indeed within states. explanation of the structure and nature of the new European legal order which emerged after World There are some similarities, however. Those War II. Next covered is how European licensing European individuals who wish to practice in a legal

6 The Examiner, November 2008 profession must typically study law at a university also gave and occasionally appeared in and then undertake practical legal training at a spe- the lower to represent clients. If litigation was cialized legal training institute, followed, almost in prospect or if they needed specialized legal advice, everywhere now, by a period of practical experience would often refer their cases to . with a qualified legal professional, and then become This picture has now blurred, as solicitors can now licensed to practice, often by passing an examina- become - with full right of represen- tion. So there are typically academic and profes- tation even in the highest courts, and barristers can sional stages to this pre-licensing training and, in now, in many circumstances, be approached without particular, a fairly lengthy the medium of a solicitor. period of apprenticeship. The [T]h e r e a r e t y p i c a ll y a c a d e m i c a n d Moreover, bear in mind that professional stage of training professiona l s t a g e s t o t h i s p r e - in the alone differentiates the European there are six distinct legal l i c e n s i n g t r a i n i n g a n d , in p a r t i c u l a r , legal training scheme from professions, each with its a f a i r l y l e n g t h y p e r i o d o f a p p r e n t i c e - that found in the United own professional body, regu- s h i p . Th e professiona l s t a g e o f t r a i n - States. It accounts for the rel- lators, and rules by which it ative lack of “clinical” legal i n g d i f f e r e n t i a t e s t h e Eu r o p e a n l e g a l operates, and this is just one education in European law t r a i n i n g s c h e m e f r o m t h a t f o u n d in of the many countries within schools. The EU does not t h e Un i t e d St a t e s . It a c c o u n t s f o r t h e the European Union. have authority over the con- r e l a t i v e l a c k o f “c l i n i c a l ” l e g a l e d u - Contrast the situation tent of education, and states c a t i o n in Eu r o p e a n l a w s c h o o l s . in the UK with that of, are, in large measure, free say, Germany. Here the to prescribe their own entry Rechtsanwalt (lawyer) takes on both of the roles routes to the legal professions. Yet as this article will which in are divided between solicitors show, there are now “European” entry routes along- and barristers (although less divided these days). side the national ones and, as will be outlined in Part However, much transactional work involves another II of this article, the EU is beginning to have a major profession, that of (Notar). The notary impact on university-level education across Europe public has a mandatory function in, for example, the despite its lack of formal authority over this matter. handling of real transactions, something that How Are Legal Services Delivered in Europe? in England might be dealt with by a solicitor or by There is great variety in how legal services are deliv- a new breed of professional created in England and ered within the EU states. For example, in the United Wales not long ago called the licensed . Kingdom, the is divided into solici- Bear in mind that each of the 16 local , tors and barristers (the latter are called advocates in or Länder, in Germany has its own Ministry of Justice ). Traditionally, the profession of and its own rules for admission to the Bar. One can provided expert advice and representation in courts see that the task of delivering legal services involves (especially in the higher courts, for which barristers different types of legal profession, depending on used to retain a ). The solicitor, by tradi- which state(s) or region(s) one is doing in. tion, was involved more with transactional law but One can also see that there are many different legal

Lawyers in the European Union, Part I 7 actors on the scene in Europe, with different spheres This regime forced the leaders and of competence. Each of the legal professions has a of the member states of the EEC to meet regu- unique education and training pathway to access larly and resulted in a net of integrating rules that the profession and each has separate procedures for meant the economies of the countries were increas- becoming a lawyer. ingly enmeshed. The regular contacts at many levels began to allow some mutual trust to emerge. Sometimes the decision-making procedures work The Structure of the European Union rather slowly; with 27 countries working together and Its Legal Order in 23 official languages, progress is not always At this point it might seem a vain hope to have any as swift as might be hoped. Agreements some- European-level involvement with the education and times can only be reached very slowly and with training of lawyers, let alone their or rules many compromises along the way. On the other on access to the professions. However, a series of hand, over time decisions do get made, and there political developments has seen the emergence, ini- are now over 95,000 pages of European-level tially in western Europe but now reaching eastward, . of the European Union. The EU currently comprises 27 states, with several others also bound, through The decision-making process has been altered sets of , to its rules. In the late 1940s, ravaged and improved by a series of changes. The by war and encouraged by American support and Single European Act of 1986 extended the use of hopes of economic resurrection, a small group of qualified majority voting in the Council. The role six European states started to integrate their coal of the now directly elected European Parliament and steel industries by means of the European Coal was extended in successive treaties, and the and Steel Treaty of 1951. This partial integration was Parliament now has powers of co-decision with the followed in 1957 with the Treaty of Rome, which Council in many areas. The Treaty of Maastricht, created the European Economic Community (EEC). which came into force in 1993, created the EU. More states joined the initial six in successive waves The EU includes the EC. (The word “economic” of accession. The first to join were the United was dropped from the name at this stage as it Kingdom, Denmark, and Ireland in 1972. The latest was clear that the objectives of the EC were members of what is now called the EU are Romania far wider than merely economic.)2 and Bulgaria, joining in 2006. The EEC sought to create a common market. This entrenched the idea The European of Justice of a market economy at a time when state-led econo- mies were looming from the communist eastern half Importantly, part of the initial conception of this of Europe, the other side of the Iron Curtain. The unified organization was the creation of a European primary methods used to achieve this goal were to Court of Justice (the Court of Justice), based in set out a series of principal objectives for the EEC . This court has one from each and to provide a set of common European institu- member state and is assisted by eight Advocates tions authorized to make the necessary decisions and General. The General is not a position pass the necessary to achieve these objectives. known to the common law but is seen in the

8 The Bar Examiner, November 2008 and and other continental the Court of Justice for determination. In the recent European countries. Advocates General are full past, this court has played a significant role in members of the court, and after a hearing of the liberalizing legal services in the EU. parties (if that is appropriate in the case) an One of the aims of the EC from its inception Advocate General will give a nonbinding opinion has been to establish a common market, now more suggesting how the case could be resolved. This commonly called a single market.4 This involves the is an independent and fully reasoned legal removal of barriers to the free movement of all the opinion. The Court of Justice often follows these factors of production. In a single market, capital, opinions, though it is not bound by them. The Court goods, workers, and should all, in of Justice itself gives a collective ruling. There are no principle, be able to move to the state that they independent or dissenting judgments. In an early think is most advantageous to them, thus un- 3 case, Van Gend en Loos, reminiscent of Marbury v. leashing optimal resource allocation and making Madison (the landmark U.S. Supreme Court case in the most efficient use of resources. As mentioned which the Court asserted its power to review acts of above, the Treaty of Rome itself asserts these Congress and invalidate those that conflicted with freedoms, though they are subject to some excep- the ), the Court of Justice declared that tions. Moreover, the EC has legislated to help the 1957 Treaty of Rome had created a new legal achieve these aims. Any EC legislation must comply order; it was not to be considered , with the primary Treaty law. but rather a new European Community law. A new legal system was born. Cr o s s -Bo r d e r Le g a l Pr a c t i c e

To facilitate understanding of cross-border legal practice in the EU, I will start with a few term defi- A New European Legal Order nitions. The home state is the one where The new European legal order was designed to reach is licensed and has been practicing; in essence, the through national legal systems to touch and grant state where the lawyer is established. The host state rights to ordinary citizens. In order to be effective, it is another state where the lawyer is not licensed had to have primacy over national laws, including but where he or she wishes to provide legal ser- national itself. Naturally, there vices. If the lawyer travels to provide a consultation was some national judicial reluctance to embrace in another member state, this is regarded in EC this upstart legal order, but overall this reluctance law as providing a service on a temporary basis. has now been largely overcome for practical pur- Article 49 EC specifically allows the right to provide poses, certainly in the older member states. For cross-border services. Further, the Gebhard case5 lawyers within the EU this means that European established that even when lawyers (or other pro-

Community law (EC law), as it is now known, fessionals) are providing a temporary service,6 they plays an increasingly important part in their daily are entitled to open a branch office in order to do professional lives. Where the EC has so. Lawyers are also entitled, by virtue of Article 43 fudged an issue and not made a law at all, then EC, to establish a permanent presence in another as often as not, litigation will throw the issue to member state.

Lawyers in the European Union, Part I 9 Practice Temporarily in Another State or Become in that state. Access to the legal professions them- a Lawyer in That State? selves (as opposed to temporary legal practice) has In the case of the legal professions and the desire of been opened to all EU nationals not only through the lawyers to practice in other EU states, the general EC availability of law study in any EU state, after which Treaty law on free movement applies, but there are the graduates follow that country’s traditional route also two key Directives (a type of EC secondary law) of access to the local profession, but also through dealing with lawyers specifically. These legal instru- a system of mutual recognition of professional ments operate together to provide two different qualifications that has been introduced, allowing rights for EU lawyers. They speedier cross-licensing can grant access to the legal In t h e c a s e o f t h e l e g a l professions for those who are profession of the host state, a n d t h e d e s i r e o f l a w y e r s t o p r a c t i c e already lawyers in one country and who seek and they can allow lawyers in o t h e r EU s t a t e s , t h e g e n e r a l EC to gain access to legal profes- to join the legal profes- Tr e a t y l a w o n f r e e m o v e m e n t a p p l i e s , sional activities of the host sion in another, via their b u t t h e r e a r e a l s o t w o k e y Di r e c t i v e s state while retaining their Treaty-based rights and (a t y p e o f EC s e c o n d a r y l a w ) d e a l - 9 home state . Directive 2005/36/EC. i n g w i t h l a w y e r s s p e c i f i c a ll y . Th e s e Additionally, Directive The first benefit for legal l e g a l i n s t r u m e n t s o p e r a t e t o g e t h e r 98/5/EC on the estab- professionals is that through lishment rights of law- the EC Treaty law and the t o p r o v i d e t w o d i f f e r e n t r i g h t s f o r yers allows those who EC Directives those already EU l a w y e r s . Th e y c a n g r a n t a c c e s s t o have chosen this entry licensed as lawyers in one t h e l e g a l p r o f e s s i o n o f t h e h o s t s t a t e , route to have expedited state can practice in another a n d t h e y c a n a ll o w l a w y e r s t o g a i n access to the local legal member state as home state a c c e s s t o l e g a l professiona l a c t i v i t i e s professional after lawyers; that is, they retain o f t h e h o s t s t a t e w h i l e r e t a i n i n g t h e i r three years of practice their initial professional h o m e s t a t e t i tl e s . in the host state, without titles (e.g., solicitor) in the prior examination. new state, by two new EC routes. First, they can provide temporary cross- Finally, and relatively recently, a new route to border services by virtue of Article 49 EC and, in legal licensing has been opened by the Court of particular, Directive 77/249/EEC.7 Second, they Justice in the Morgenbesser case.10 This covers those can establish a permanent practice in another mem- who are in the middle of legal training, enabling ber state by virtue of Article 43 EC and Directive them to switch states halfway through their training 98/5/EC.8 In both cases, the lawyer can retain his in order to become a lawyer under a different state’s or her initial professional title, although in the lat- training regime. ter case there are options for joining the host state

profession. So we have then, in Europe, a legal system Another option for EU lawyers is to become that allows lawyers to follow their clients to differ- licensed in the new state by joining the profession ent countries and advise them there, whether on a

10 The Bar Examiner, November 2008 temporary (services) or a permanent (establishment) Temporary Provision of Legal Services basis. We also have a system that allows lawyers to Directive 77/249/EEC gives European Economic relatively easily add new legal professional titles Area (EEA) and Swiss lawyers the right to provide in other states (i.e., without having to re-qualify services temporarily under their home titles in an- completely). These routes will now be examined other member state, with no prior registration with in slightly more depth. the host state Bar being necessary. (The EEA was cre- ated in 1994 and includes all the EU member states Competence plus Norway, Iceland, and Liechtenstein. These and Entry Controls states must comply with most In the last few decades it has In t h e l a s t f e w d e c a d e s it h a s b e c o m e of the EU single-market laws become much easier for EU m u c h e a s i e r f o r EU n a t i o n a l s t o e n t e r by adopting appropriate na- nationals to enter the legal t h e l e g a l p r o f e s s i o n in a n o t h e r s t a t e . tional measures, and they have access to the benefits of profession in another state. Th e t r a d i t i o n a l e n t r y b a r r i e r s a n d The traditional entry barriers the single market, including t h e r i g o r o u s l y r e g u l a t e d a c c e s s t o and the rigorously regulated the rules on free movement t h e professions o f l a w in e a c h c o u n t r y access to the professions of of lawyers.) The term “law- h a v e b e e n t r u m p e d b y Eu r o p e a n f r e e law in each country have yer” is defined in a relatively been trumped by European a c c e s s r u l e s . On e n o l o n g e r h a s narrow sense in the Directive, free access rules. One no t o f o ll o w s l a v i s h l y t h e p r e s c r i b e d which contains a list of the longer has to follow slav- n a t i o n a l r o u t e s i n t o t h e h o s t s t a t e professions covered in Article 11 ishly the prescribed national professions . 1. Article 1 does not cover routes into the host state pro- procuradores (Spanish procu- fessions. It is not only the rators, one of several types of free movement rules that knock down the door; the lawyers in Spain),12 licensed , notaries, European competition (antitrust) authorities are also or many other legal actors operating in Europe, and asking for justifications of access-restricting rules thus these professionals are not provided with the (and a lot more besides, but that is another story). Directive’s authority for cross-border provision of The new system does of course allow safeguards for services. For those that do receive the benefit, the national authorities. host state’s “competent authority,” normally the Bar or , may request of the lawyer’s The EC rules that mandate opening the doors title. The CCBE has developed a lawyer’s profes- to the legal professions by allowing the new sional identity card which is recognized by the Court EC-authorized pathways have had a large impact on of Justice and national competent authorities as national admission systems and the education and prima facie proof of a lawyer’s right to practice.13 training regimes that lie behind them. This impact on admissions and the EU’s role in the sphere of Lawyers, under this Directive, can advise on education and training will be dealt with in Part II local (i.e., host state) law as well as their own of this article. I will now examine in more detail how national law. In some circumstances, specified in the the free movement systems operate. Directive, there are limits on transactions involving

Lawyers in the European Union, Part I 11 (wills) and the sale of land.14 The visiting the right to provide cross-border services. One of lawyer must also comply with the host state rules the first rules to fall to EC law was the requirement of conduct before the courts of the host state, and, of residence.17 Many national laws in the EU used to in some cases, must work in conjunction with a host require lawyers to live in the area where they were state lawyer when representing clients. Such law- practicing. This rule would stop any cross-border yers must also observe and respect the professional provision of legal services, because, for instance, if a rules of the Bar of the host state, including the rules German Rechtsanwalt living in Düsseldorf wanted to regarding incompatible activities, as long as they go to Brussels to advise a client, the residence rule are capable of being observed would effectively prohibit by a foreign lawyer who is So l a w y e r s w h o p r o v i d e s e r v i c e s in a the trip. It was the famous not established and to the h o s t s t a t e u n d e r t h e a u t h o r i t y o f t h i s van Binsbergen case from the extent to which their observ- Netherlands18 that resolved Di r e c t i v e a r e s u bj e c t t o t w o s e t s o f ance is objectively justified this issue in favor of allow- r u l e s o f professiona l c o n d u c t , t h o s e to ensure in the host state ing cross-border practice. o f t h e h o m e s t a t e a n d t h o s e o f t h e the proper exercise of a law- The Court of Justice ruled yer’s activities.15 So lawyers h o s t s t a t e . Th i s is o f t e n t e r m e d “d o u - that Article 49 EC had

who provide services in a bl e d e o n t o l o g y .” Ap a r t f r o m t h i s direct effect, meaning that host state under the author- l i m i t a t i o n , t h e h o s t s t a t e is n o t European lawyers could rely ity of this Directive are sub- a bl e t o i m p o s e a n y b a r r i e r s t o t h e on it before any member ject to two sets of rules of t e m p o r a r y p r o v i s i o n o f s e r v i c e s b y state national court without professional conduct, those further EC implementation s u c h l a w y e r s . Th e y r e m a i n s u bj e c t t o of the home state and those measures. The Dutch rule t h e r u l e s o f t h e i r s t a t e o f origin of the host state. This is involved in van Binsbergen r e g a r d i n g a c c e s s t o a n d e x e r c i s e o f often termed “double deon- was nondiscriminatory but tology.” Apart from this professiona l a c t i v i t i e s . it was still deemed invalid limitation, the host state in these circumstances, as is not able to impose any barriers to the tem- such rules could only be applied if they were porary provision of services by such lawyers. objectively justified by “the general good.” The They remain subject to the rules of their state of Court said that the Dutch could require perma- origin regarding access to and exercise of profes- nent establishment only if the rules were “objec- sional activities. After a few hiccups,16 this system tively justified by the need to ensure observance of has worked relatively well and is now commonly professional rules of conduct connected, in used by many lawyers in Europe. particular, with the administration of justice and with respect for professional ethics.” The safeguards are primarily based on reli- ance upon and trust in the visiting lawyer’s home- On the facts of the case the Dutch rules were not state rules and rigor. The host state is not entitled to considered to be objectively justified. The residence apply the full rigor of its regulatory regime to visit- requirement could not pass muster with the Court ing professionals, as this would effectively nullify of Justice, as it was too restrictive of cross-border

12 The Bar Examiner, November 2008 practice. The case was important because it recog- case was the culmination of a set of cases that led to nized state interests—there was a justification for the opening up of establishment rights for lawyers enforcing professional rules against incoming profes- and other professionals. Gebhard was a German sionals if those rules protected “the general good.” In lawyer practicing in Milan, . For many years he § 12–13 the Court of Justice recognized that had practiced there happily with a group of Italian [S]pecific requirements imposed on the person lawyers. He then set up a studio legale (legal office) providing the service cannot be considered and described himself as an avvocato (an Italian law- incompatible with the Treaty where they have yer). He was not an avvocato but rather a Rechtsanwalt as their purpose the application of professional (a German lawyer), and his main role was advising rules justified by the general good—in particu- Germans coming to Italy about the local law, whose lar rules relating to organization, qualifications, questions he farmed out to avvocati. He also acted professional ethics, supervision and liability— as a bridge for German businesses coming into Italy which are binding upon any person established and for expatriate Germans in Italy wanting to sort in the state in which the service is provided, out their legal matters in Germany. The Milan Bar where the person providing the service would acted against him for using the title avvocato and the escape from the ambit of those rules being subsequent litigation led to Luxembourg where the established in another member state. Court of Justice gave its important ruling indicating Moreover, the Court said, that Italy could not impose the full range of regula- [A] Member State cannot be denied the right to tions on migrating lawyers. The Court said that if take measures to prevent the exercise by a per- non-national lawyers wanted to do what avvocati do, son providing services whose activity is entirely and call themselves avvocati, then they had to do what or principally directed towards its territory of the avvocati did, namely, join the local profession. EC the freedom guaranteed by article 59 EEC [now law had already made this easier by the adoption of 49 EC] for the purpose of avoiding the profes- Directive 89/48/EEC on the mutual recognition of sional rules of conduct which would be appli- qualifications (now replaced by Directive 2006/36/ cable to him if he were established within that EC).20 However, if incoming lawyers wished to stay, State; such a situation may be subject to judicial for example, Rechtsanwälte, then they would not control under the provisions of the chapter relating to the right of establishment and not of necessarily be doing what the Italian lawyers were that on the provision of services. doing; they would be undertaking different work. In the latter scenario, the host state could impose The system established for temporary services works its rules and only if they were nondis- well, and lawyers from all jurisdictions regularly use criminatory and proportionate to the public interest it without any difficulties. (As registration is not allowed, however, there are no statistics available.) protected by them. This ruling opened the door to what had previously been called établissement sau- Permanent Establishment in Another Member State vage (“wild establishment,” or establishment outside Another option for EU lawyers is to establish a the perceived confines of the law). Before this ruling, permanent practice in the host state. The Gebhard19 many had thought that Article 43 EC allowed access

Lawyers in the European Union, Part I 13 only under the same conditions as those that applied conditions for his exercise of that right[,] must to locals, but the Gebhard case showed that it in fact be determined in the light of the activities he allowed a wider access for incoming lawyers. intends to pursue. . . . Where the taking up of a specific activity is not subject to any rules in As the Court of Justice stated in the Gebhard the host State a national of any other Member case,21 State will be entitled to establish himself. . . . The concept of establishment within the mean- Membership of a professional body may be ing of the Treaty is . . . a very broad one, a condition of taking up and pursuit of par- allowing a Community ticular activities. It cannot national to participate, Th e Directive a ll o w s l a w y e r s t o itself be constitutive of on a stable and contin- e s t a bl i s h t h e m s e l v e s in a n o t h e r m e m - establishment. uous basis, in the eco- b e r s t a t e u n d e r t h e i r h o m e p r o - nomic life of a Member The Gebhard then State other than his State f e s s i o n a l t i tl e s . Th e y m u s t r e g i s - stated that of origin and to profit t e r w i t h t h e c o m p e t e n t a u t h o r i t y …[N]ational measures lia- ble to hinder or make less therefrom, so contrib- (n o r m a ll y a Ba r o r a La w So c i e t y ). attractive the exercise of uting to economic and Ha v i n g r e g i s t e r e d , t h e y c a n u n d e r - fundamental freedoms guar- social interpenetration t a k e a lm o s t a ll professiona l a c t i v i t i e s within the Community anteed by the Treaty must in t h e h o s t s t a t e e x c e p t t h o s e r e s e r v e d in the sphere of activities fulfil four conditions: they b y Ar t i c l e 5 o f t h e Di r e c t i v e . as self-employed per- must be applied in a non- sons (see, to this effect, discriminatory manner; they Case 2/74 Reyners v. [1974] ECR 631, must be justified by imperative requirements in paragraph 21). the general interest; they must be suitable for securing the attainment of the objective which In principle, professional practice is regulated locally they pursue; and they must not go beyond what and Article 43 EC, which sets out establishment is necessary in order to attain it. rights, in paragraph 2 indicates that “[f]reedom This ruling thus paved the way for a Directive of establishment shall include the right to take up allowing permanent establishment of lawyers and pursue activities as self-employed persons . . . practicing under their home state professional titles. under the conditions laid down for its own nationals Bars and Law Societies had not agreed on this point; by the law of the country where such establishment some had insisted that permanent establishment is effected.” must mean joining the host state profession, thus This might have meant that each state could disallowing lawyers the freedom to practice fully retain its own rules regarding professional under their home state professional titles. So the Gebhard activity. However, in the case the judgment conditions were thus set for the adoption of went beyond this, indicating that Directive 98/5/EC,22 which the CCBE had a big the possibility for a national of a member State hand in helping to create.23 The Directive allows to exercise his right of establishment, and the lawyers to establish themselves in another

14 The Bar Examiner, November 2008 member state under their home professional titles. through practice, that assimilation being made They must register with the competent authority easier by experience of other laws gained in (normally a Bar or a Law Society). Having reg- the home Member State. It was also able to istered,24 they can undertake almost all profes- take account of the dissuasive effect of the sional activities in the host state except those system of discipline and the rules of profes- reserved by Article 5 of the Directive. The ex- sional liability. cluded areas can include transfers, The Directive28 allows incoming lawyers, after probate, and legal representation.25 The incoming three years of practice in the host state law, to more lawyer is subject to the host state deontological or less automatically become local professionals with and other rules but can practice immediately. no prior testing. The Directive defines host state law All areas of legal advice, including advice on the as including EC law,29 which could mean an incom- host state law, are open. This is a major change ing lawyer actually would not need to practice any for the legal professions, as there is no prior national law and yet still be able to become a local assessment of capacity to act as a local lawyer lawyer after three years! before the incoming lawyer can actually undertake such practice.26 It was a leap of faith. As the Court of The conflicts rules in Directive 98/5/EC are quite Justice stated in Commission v. Luxembourg:27 detailed; in fact, about half of the Directive deals with which rules are going to apply to such lawyers, It would therefore seem that the Community and a discussion of those issues goes beyond the legislature, with a view to making it easier for scope of this article.30 The CCBE Code of Conduct a particular class of migrant lawyers to exercise helps to guide lawyers regarding their behavior the fundamental freedom of establishment, has when acting in cross-border situations. It requires, chosen, in preference to a system of a priori inter alia, that lawyers not undertake any work for testing of qualification in the national law of which they are not competent. the host Member State, a plan of action com- bining consumer information, restrictions on The right to establish practice in a host state the extent to which or the detailed rules under under home state title has been relatively widely which certain activities of the profession may used. The most popular destinations are France be practised, a number of applicable rules of (over 700) and Belgium (well over 500), with the UK professional conduct, compulsory insurance, (over 300) and Switzerland (over 200) following up. as well as a system of discipline involving both Establishment by becoming licensed in and joining the competent authorities of the home Member the profession of the new state, under Article 10 State and the host State. The legislature has not of Directive 98/5/EC, is less popular; here the UK abolished the requirement that the lawyer con- takes the lead with over 90 (from 23 different states), cerned should know the national law applicable followed by Poland, Switzerland, and Ireland with in the cases he handles, but has simply released figures in the 30s. There have been teething prob- him from the obligation to prove that knowledge lems with implementation of the Directive in some in advance. It has thus allowed, in some cir- member states. In Luxembourg, for example, the cumstances, gradual assimilation of knowledge law requiring incoming lawyers to cope with the

Lawyers in the European Union, Part I 15 three languages in use there (German, French, and making processes. The Treaties of Amsterdam (1997) and Nice (2003) made further significant changes, including Luxembourgish) was found to be excessive by the granting EU authority in the fields of and judicial Court of Justice. Other issues have been the level of cooperation in criminal matters. See Lonbay, Julian, “Free Movement of Persons in the EU: The Legal Framework,” indemnity insurance necessary, the level of registra- in Accountability and Legitimacy in the EU (Anthony Arnull tion fees to join the Bar, difficulties caused by the and Daniel Wincott eds., University Press 2002). differences in the of in-house in the Currently the Treaty of Lisbon, with further significant alterations, is in the process of being (perhaps) adopted. various states, and tax and schemes. There 3. Case 26/62, N. V. Algemene Transport- en Expeditie are, so far, no widespread of incompe- Onderneming Van Gend en Loos v. Nederlandse admi- nistratie der belastingen [Netherlands Inland Revenue tence of incoming lawyers. Administration] E.C.R. 3 (1963). 4. See Article 14 EC. Co n c l u s i o n 5. Case C-55/94, Reinhard Gebhard v. Consiglio dell’ ordine It is clear that the rules emanating from the EU have degli Avvocati e Procuratori di Milano E.C.R. I-4165 (1995). had a profound effect on the scope and rights of legal See also Lonbay, Julian, Case-note on Gebhard, 33 Co mm o n Ma r k e t La w Re v i e w 1073 (1996). practice across Europe. Over the decades of evolu- 6. Gebhard, id. § 26. The Italian implementation of Directive tion of these rules, considerable mutual trust has 1977/249/EEC, 26 March 1977, OJ L78/17, had said that been built up between Bars and Law Societies of the the opening of an office indicated establishment, with the implication that all the local regulatory rules would have to various member states whose national regulatory be complied with. authorities regularly meet within the CCBE. The 7. Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide serv- alternative routes, briefly described above, have also ices, (1977) OJ L78/17 as amended. had a major impact on the national access rules 8. Directive 98/5/EEC of the European Parliament and of which can be bypassed by the new routes mentioned. the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a member These routes include a regime for mutual recognition state other than that in which the qualification was obtained, of qualifications, mandated by Article 47 EC (which I (1998) OJ L77/ 36 as amended. have not had space to deal with in any detail here). 9. Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of profes- Part II of this article will cover the system in place for sional qualifications, (2005) OJ L255/22. mutual recognition of qualifications as well as a 10. Case C-313/01, Christine Morgenbesser v. Consiglio series of training and educational activities and ini- dell’Ordine degli Avvocati di Genova E.C.R. I-13467 (2003). 11. Article 3 of Directive 77/249/EEC states: tiatives taking place within the EU that are having a A person referred to in Article 1 shall adopt the profes- major impact on legal education and legal training sional title used in the Member State from which he comes, across Europe. expressed in the language or one of the languages of that State, with an indication of the professional organization by which he is authorized to practise or the court of law n d n o t e s E before which he is entitled to practise pursuant to the laws 1. Lonbay, Julian, Training Lawyers in the European Community of that State. (The Law Society 1990). Generally, see Dr. Lonbay’s website, 12. For an explanation of the types of lawyers in Spain, see http://elixir.bham.ac.uk, for information on the types of legal http://elixir.bham.ac.uk/Country%20information/Spain/ actors and an explanation of the training required to become lawyers_frameset.htm. a legal professional in some of the member states of the EU. 13. The CCBE was founded in 1960 and acts as the liaison 2. At this time the EU was granted additional authority in between the EU and Europe’s national bars and law societies the fields of justice and home affairs and common for- whose national delegations represent its members. It has 31 eign and security policy. These matters were dealt with full members, 2 associate members, and 8 observer members. in an intergovernmental fashion where member states The CCBE advances the views of European lawyers and retained much more control than under the EC decision- defends the legal principles upon which democracy and

16 The Bar Examiner, November 2008 the rule of law are based. It is concerned with all European 23. See http://www.ccbe.eu/index.php?id=6&id_rubrique=1 cross-border matters as they affect lawyers. See http://www & L=0. .ccbe.eu for general information about the CCBE’s role, and 24. Directive 98/5/EC Article 3. http://www.ccbe.eu/index.php?id=30&L=0 for information 25. Directive 98/5/EC Article 5. about the CCBE identity card (last visited Sep. 30, 2008). 26. There’s a history behind this. The Commission always 14. Article 1(1), op. cit. at note 7: wanted a three-year adaptation period. They never wanted … Notwithstanding anything contained in this Directive, testing in the diplomas Directive and they finally got their Member States may reserve to prescribed categories of way in this Directive. lawyers the preparation of formal documents for obtain- ing title to administer estates of deceased persons, and 27. Case C-168/98, Commission v. Luxembourg, E.C.R. I-9131 the drafting of formal documents creating or transferring (7 November 2000) § 43. interests in land. 28. Directive 98/5/EC Article 10. 15. Lawyers must abide by their home state rules “without prej- 29. Directive 98/5/EC Article 10. udice” to respecting rules that govern the host state lawyers, 30. See also Lonbay, Julian, Lawyer Ethics in the Twenty-First in particular: Century: The Global Practice Reconciling Regulatory and … those concerning the incompatibility of the exercise of Deontological Differences: The European Experience, Va n d e r b i lt the activities of a lawyer with the exercise of other activi- Jo u r n a l o f Tr a n s n a t i o n a l La w (2001), available at http:// ties in that State, professional secrecy, relations with other www.thefreelibrary.com/Lawyer ethics in the twenty-first lawyers, the prohibition on the same lawyer acting for par- century: the global practice...-a080750270 (last visited Sep. ties with mutually conflicting interests, and publicity. The 30, 2008); and Lonbay, Julian, and Professional latter rules are applicable only if they are capable of being observed by a lawyer who is not established in the host Responsibility in a Global Context, 4 Wa s h i n g t o n Un i v e r s i t y Member State and to the extent to which their observance Gl o b a l St u d i e s La w Re v i e w 609 (2005), available at http:// is objectively justified to ensure, in that State, the proper law.wustl.edu/wugslr/issues/volume4_3/p609Lonbay.pdf exercise of a lawyer’s activities, the standing of the profes- (last visited Sep. 30, 2008). sion and respect for the rules concerning incompatibility. Article 4(4) of Directive 77/249/EEC, op. cit. 16. For example, Case 427/1985, Commission v. Germany, E.C.R. 1123 (1988); Case C-294/1989, Commission v. France, E.C.R. I-3591 (1991); see also Lonbay, Julian, Cross‑Frontier Provision of Services by Lawyers, 13 Eu r o p e a n La w Re v i e w 347 (1988). 17. Nationality requirements have also been removed. Case 2/74, Jean Reyners v. Belgian State, E.C.R. 631 (1974). Belgium, in the Reyners case, argued that lawyers were actu- ally exercising official authority and therefore were exempt from establishment rules under Treaty Article 45 EC. The Court rejected this argument. 18. Case 33/74, van Binsbergen v. Bestuur van de bedrijfs- vereniging voor de Metaalnijverheid, E.C.R. 1299 (1975). 19. See note 5. 20. Council Directive 1989/48/EEC of 21 December 1988 on a Ju l i a n Lo n b a y teaches European Law at Birmingham Law general system for the recognition of higher-education School, University of Birmingham, England. He is chairman of diplomas awarded on completion of professional education the Training Committee of the Council of Bars and Law Societies and training of at least three years duration, 24 January 1989, of Europe (CCBE), a past president of the European Law OJ L19/16. See, generally, Lonbay, Julian, “The Mutual Faculties Association (ELFA), and a Professeur Invité at the Recognition of Professional Qualifications in the EC,” of Law and Economic Science of the University of Limoges, in Professional Liability Law and Insurance 1–40 (2nd ed., France. He was the director of the Institute of European Law until September 2000 and has worked for the Lord Chancellor’s Ray Hodgin ed., 1999). Advisory Committee on Legal Education and Conduct (ACLEC) 21. Gebhard, op. cit. § 25–26. on continuing legal education in the EU. He has lectured in many countries across the world, including a term as visiting 22. Directive 98/5/EC of the European Parliament and of the professor at Indiana University School of Law in Bloomington, Council of 16 February 1998 to facilitate practice of the pro- Indiana, and as the Commerzbank Visiting Professor of Law at fession of lawyer on a permanent basis in a member state Bucerius in Hamburg, Germany. He is editor other than that in which the qualification was obtained, 14 in chief of the Eu r o p e a n Jo u r n a l o f Le g a l Ed u c a t i o n and March 1998, OJ L77/36. a reporter for In t e r n a t i o n a l a n d Co m p a r a t i v e La w Qu a r t e r l y .

Lawyers in the European Union, Part I 17