1. The Free Movement of Lawyers and Legal Services within the EU
Clare Titcomb
International Policy Adviser (Europe and CIS)
The Law Society of England and Wales

2. Summary Development through case law
Development through secondary legislation
Recent developments
Benefits and Limitations

3. Development through case law
Fundamental freedoms protected by the Treaty
No secondary legislation developed until 1977
Judicial activism developed rights in this area
Reyners [Case 2/74] (freedom of establishment) & Van Binsbergen [Case 33/74] (freedom to provide services)
Discriminatory national measures not permitted
Treaty rights directly applicable in lieu of secondary legislation
Public service exception not applicable to lawyers

4. Development through case law
Non-discriminatory national measures not permitted but discrimination against nationals is permitted
Klopp [Case 107/83]
Establishment in more than one Member State permitted
National rules against establishment of more than one office within a Member State permitted
Vlassopoulou [Case 340/89]
Equivalence of professional qualifications from another Member State should be assessed in considering access to host State Bar

5. Development through case law
ECJ doctrine – objective justification for any restrictions on fundamental freedoms
Gebhard [Case C-55/94] - National rules which are liable to hinder or make less attractive the exercise of the fundamental freedoms must fulfil 4 criteria:
applied in a non-discriminatory manner
justified by imperative requirements in the general interest
suitable for securing the attainment of the objective
must not go beyond what is necessary

6. Development through case law
Secondary legislation evolved to support fundamental freedoms in the Treaty
ECJ case law used where secondary legislation does not exist
Member State discretion in the implementation of secondary legislation
ECJ case law used to determine whether Member State implementation is lawful

7. Development through legislation
Tri-partite system of free movement of lawyers:
Lawyers Services Directive (77/249/EEC) free movement through temporary services
Diplomas Directive (89/48/EC) replaced by (2005/36/C) free movement through full integration
Lawyers Establishment Directive (98/5/EC) free movement through permanent establishment which may lead to full integration

8. Development through legislation
3 categories of lawyers – Luxembourg v European
Parliament and Council [Case C-168/98]:
Lawyers who maintain home State title and home State establishment and offer temporary services in another State
Lawyers who become full members of host State profession
Lawyers who maintain home State title but are permanently established in host State

9. Options for practice in another Member State
Practice under home State title
Temporary Services –exercise of home State profession in host State
Permanent Establishment – exercise of host State profession under home State title
Practice under host State title
Permanent Establishment – adaptation period
Re-qualification – aptitude test

10. Practice Under Home Title - Activities
Services (Art. 1 & 4)
Home State law
Host State law (with restrictions)
EC law
International law
Establishment (Art. 4)
Home State law
Host State law (with restrictions)
EC law
International law

11. Practice Under Home Title – Reserved Areas
Services
Probate and conveyancing (Art. 1)
Legal proceedings (Court)
Can require introduction to judge/Bar President (Art. 5.1)
Can require co-operation with a local lawyer (Art. 5.2)
Commission v Germany [C-427/85] – can’t use Art. 5.2 to require a local lawyer to be constantly present
Establishment
Probate and conveyancing (Art. 5.2)
Legal proceedings (Court)
Can require co-operation with a local lawyer (Art. 5.3)
Can reserve access to supreme courts to special category of lawyer (Art. 5)

12. Practice Under Home Title - Conduct
Services
Legal advice (Art 4.4)
Home rules apply
Host rules apply on:
incompatibility of lawyers activities with other activities
professional secrecy
relations with other lawyers
conflicts
publicity
If capable of being observed
and objectively justified
Legal proceedings (court work) (Art 4.2)
Host rules apply
Establishment
Host rules apply (Art. 6.1)
Home rules also apply
Conflict – host rules prevail
Insurance – home State insurance can be used if equivalent to host State insurance

13. Practice Under Home Title - Discipline
Services
Breach of host rules – host State body discipline (Art. 7.2)
Host State body must inform home State body (Art. 7.2)
Establishment
Breach of host rules – host State body discipline (Art. 7.1)
Home State informed (Art. 7.2)
Co-operation between host and home States (Art. 7.3)
Home State body can also take action (Art. 7.4)
Loss of right to practice in home State = automatic loss in host State (Art. 7.5)

14. Practice Under Home Title - Registration
Services
Host State cannot require it even for court work (Art. 4.1)
Host Bar can require proof of qualification (Art. 7.1)
Legal proceedings – can require introduction to judge/Bar President (Art. 5.1)
Establishment
Must register with host Bar (Art. 3.1)
Can require certificate of attestation (Art. 3.2)
Practice of requiring criminal records check

15. Practice Under Home Title – Forms of Practice
Services
Salaried practice – can exclude salaried lawyers from representing employer if prohibited in host State (Art. 6)
Establishment
Salaried practice – allowed if host State permits it (Art. 8)
Joint Practice
Branch or agency (Art. 11.1) unless:
prohibited by host law; and
public interest justification
All forms open to local lawyers (Art. 11.2)
Mix of local and EU lawyers (11.3)
MDPs – only if permitted in host State (11.5)
Name of home State grouping – can require use of host State words to indicate form of joint practice (Art. 12)

16. Service v Establishment - Gebhard [Case C-55/94]
Services
Services provided on a temporary basis
Office infrastructure permitted
Establishment
Activities exercised on a stable and continuing basis
CCBE – Secondment exception – 12 months

17. Practice Under Host Title - Overview
Diplomas Directive
General system for the recognition of qualifications for all regulated professions (including lawyers)
Integration into host profession
Establishment
Specific regime for lawyers
Integration into host profession

18. Practice Under Host Title – Route to Re-qualification
Establishment:
Effective and regular practice of host State law for 3 years (Art. 10.1)
Aptitude test under Diplomas Directive (Art. 10.2)
Effective and regular practice for 3 years but practice of host State law for less than 3 years taking into account knowledge and professional experience gained, including attendance at courses (Art ) (a codification of Vlassopoulou [Case 340/89])
Diplomas Directive:
Requirement to review an applicant’s knowledge and experience (Vlassopoulou [Case 340/89])
Compensatory measures (Art 14):
adaptation period; or
aptitude test (in national language);
Member States discretion:
adaptation period or aptitude test if precise knowledge of national law is required for profession (Art. 14.3)
content of aptitude test – subject to proportionality (Art. 14.5)
Commission v Italy [Case C-145/99] aptitude test may not be more demanding than qualification for national lawyers

19. Recent Developments – Trainee Lawyers
Morgenbesser [Case C-313/01]:
Ms Morgenbesser – French law degree tried to register as a trainee (practicanti) in Italy
Services, Diplomas and Establishment Directives – only apply to qualified professionals
ECJ referred to Vlassopoulou [Case 340/89]) – contrary to free movement if host State does not take into account knowledge and experience gained in another Member State
Effect of decision – a person in process of qualifying in one Member State can move to another Member State and continue the process of qualification
Extends Vlassopoulou to people not yet qualified to exercise a profession in a Member State

20. Recent Developments – Framework Services Directive (123/2006)
Implementation deadline of 28 December 2009
Framework directive for all services
Top-up directive for lawyers - Services and Establishment Directives prevail
Intended to encourage greater mobility whilst highlighting core values for example:
will outlaw total prohibitions on advertising
highlights need to ensure that where MDPs are permitted, they respect the core values of the profession – independence, professional secrecy and conflicts of interests
Particular focus will be authorisation processes for service providers (e.g. registration and establishment through a point of single contact)

21. Conclusions –Limitations
Unequal exchanges of lawyers across the EU Member States
Only applies to fully qualified lawyers (Morgenbesser application is undeveloped)
Other limitations to the free movement (i.e. differing insurance premiums)

22. Conclusions – Benefits
Flexibility and respect for national systems i.e. it is not:
an EU-wide reorganisation of professions
a direct harmonisation of professional rules
New opportunities for international work for EU advocates
Continuous development of the internal market means an overall increase in legal work for EU advocates 22

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