The movement of legal services between the European Union and Switzerland: Polish and Swiss legal solutions after Poland's accession to the EU Inga Kawka, Ph.D., Associate Professor, Chair of Law and Administrative Sciences Institute of Political Sciences, Pedagogical University of Krakow

The free movement of legal services is subject to the Agreement on the Free Movement of Persons (FMP) which came into force on 1 June 2002.

Chronology 9 Feb 2014: acceptance of the "Against mass immigration" people's initiative 24 April 2013: invocation of the safeguard clause against 17 other EU Member States for one year 24 April 2013: prolongation of the safeguard clause against the EU-8 for one additional year 18 April 2012: invocation of the safeguard clause against the EU-8 1 May 2011: termination of the job market restrictions against the EU-8 1 June 2009: FMP Protocol II enters into force 8 Feb 2009: approval by the people (59.6% in favour) 13 June 2008: approval of the continuation of the FMP and Protocol II by Parliament 1 June 2007: termination of the job market restrictions against the EU-17 1 April 2006: FMP Protocol I enters into force 25 Sept 2005: approval of FMP Protocol I by the electorate (56% in favour) 26 Oct 2004: signing of FMP Protocol I (for the countries that joined the EU in 2004) 1 June 2002: entry into force 21 May 2000: approval by the people (67.2% in favour) 21 June 1999: signing of the FMP agreement (in the framework of Bilateral Agreements I)

Switzerland – vote against mass immigration

Posters from the nationalist Swiss People’s Party demanding a stop for immigration to Switzerland

As a result of this referendum, Article 121a (immigration management) was added to the Swiss Federal Constitution, stating that: 1. Switzerland autonomously manages the immigration of foreign nationals. 2. The number of residence permits for foreign nationals in Switzerland is restricted by limits and annual quotas. The limits are defined for all categories of foreign nationals and also include asylum. The right of permanent residence, to family reunification and social benefits may be restricted. 3. The limits and annual quotas for foreign nationals undertaking economic activity may be defined depending on the global economic interest of Switzerland and in accordance with the country preference rule; they also include residents of border regions. The criteria taken into account when granting the permit include, in particular, an employer's application, the ability to integrate as well as a sufficient, autonomous source of income. 4. No international treaty conflicting with the above provisions can be entered into. 5. The requirements shall be laid down in an Act of law.

The provisions of this article are therefore not directly effective and require detailed legal texts incorporating them. Transitional provisions were laid down in Article 197(9) of the Swiss Constitution: 1.International treaties contravening Article 121(a) must be renegotiated and adjusted within three years of the adoption of the above article by the Cantons. 2.If the appropriate implementing acts do not come into effect within three years of the adoption of Article 121 by the Cantons, the Federal Council shall issue the necessary, temporary implementing regulations by decree.

Legal professions: the current legal status In Switzerland, access to two legal professions is regulated: the barrister (avocat, avvocato, rechtsanwalt) and the notary. Polish law precisely specifies the professional qualifications an individual must have and conditions he/she must fulfil to be entitled to practice the profession of a barrister (adwokat), legal advisor (radca prawny) or notary public.

Barristers/legal advisors Polish law treats Swiss nationals as equal to EU Member State nationals. Swiss law applies to EU and EFTA nationals.

As Polish and Swiss laws implement the same EU directives (the Lawyers’ Services Directive (77/249/EEC) and the Lawyers’ Establishment Directive (98/5/EC), the rules expressed in these legislations are not significantly different Cross-border service Permanent practice under the professional title from the country of origin Entry onto the list of barristers or legal advisors

Notaries In Switzerland, notaries public do not benefit from economic freedom and their professional practice is not subject to the Internal Market Act. Neither do notaries benefit from freedoms guaranteed as part of the European market.

Notaries Under Polish law, which has been adjusted to the case law of the CJ, in which the Court found that notary activities are not associated with executing public authority, a notary public can be a national of Poland or another European Union Member State, a Member State of the European Free Trade Agreement (EFTA) party to the Agreement on the European Economic Area or of the Swiss Confederation.

There are three main problems which appear with regard to the freedom of movement of legal services between EU states and Switzerland. persons who would like to provide legal advisory services as employees or as self-employed individuals are subject to immigration quotas, Switzerland does not automatically comply with the case law of the European Court of Justice concerning the freedoms of the internal market formulated after the FMP conclusion. Switzerland does not automatically update its legislation to account for most recent changes in EU secondary law.

Future developments Negotiations between the EU and Switzerland will be difficult in that in legal terms EU-Swiss bilateral agreements are linked to a so-called «guillotine clause», stipulating that they can only take effect together: if one of the agreements were not to be prolonged or terminated, the other would also cease to have effect.