A4-0146/96

Proposal for a European Parliament and Council Directive 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 (COM(94)0572 - C4-0125/95 - 94/0299(COD))

The proposal was approved with the following amendments:

(Amendment 1)

Recital 3

>Original text>

3. Whereas while some migrant lawyers may become quickly integrated into the profession in the host Member State inter alia by passing an aptitude test as provided for in Directive 89/48/EEC, others may envisage such integration at the end of a period of professional practice in the host Member State under their home-country professional titles;

>Text following EP vote>

3. Whereas while some migrant lawyers may become quickly integrated into the profession in the host Member State inter alia by passing an aptitude test as provided for in Directive 89/48/EEC, others may envisage such integration after a certain period of professional practice in the host Member State under their home-country professional titles or else continue to practise under their home-country professional titles;

(Amendment 2)

Recital 4

>Original text>

4. Whereas at the end of that period, which may not be longer than 5 years, the migrant lawyer should be able to gain access to the profession either automatically, where he has effectively practised the law of the host Member State including Community law for an unbroken period of three years, or, where that is not the case but where he can furnish evidence of professional experience in the host Member State, after undergoing a compensatory measure in the form of a simplified aptitude test;

>Text following EP vote>

4. Whereas at the end of that period the migrant lawyer should be able to gain access to the profession after verification that he possesses professional experience in the host Member State;

(Amendment 3)

Recital 5

>Original text>

5. Whereas action along these lines is justified at Community level not only because, compared with the general system for the recognition of diplomas, it provides lawyers with a new means whereby, after a transition period, they can practise the profession on a permanent basis in a host Member State, but also because, by enabling lawyers to practise temporarily under their home- country professional titles, it meets the needs of consumers of legal services who, owing to the increasing trade flows resulting from the internal market, seek advice when carrying out cross-border transactions in which international law, Community law and domestic laws often overlap;

>Text following EP vote>

5. Whereas action along these lines is justified at Community level not only because, compared with the general system for the recognition of diplomas, it provides lawyers with an easier means whereby they can integrate into the profession in a host Member State, but also because, by enabling lawyers to practise under their home-country professional titles on a permanent basis in a host Member State, it meets the needs of consumers of legal services who, owing to the increasing trade flows resulting from the internal market, seek advice when carrying out cross-border transactions in which international law, Community law and domestic laws often overlap;

(Amendment 4)

Recital 13

>Original text>

13. Whereas lawyers covered by this Directive may, irrespective of their status of salaried or self-employed lawyers in their home Member States, practise as salaried lawyers in the host Member State where that Member State offers this possibility to its own lawyers;

>Text following EP vote>

13. Whereas lawyers covered by this Directive may, as in Directive 77/249/EEC, where they practise as salaried lawyers, be excluded from certain activities in the host Member State where that State also excludes its own lawyers from such activities;

(Amendment 5)

Recital 14

>Original text>

14. Whereas the purpose pursued by this Directive in enabling lawyers to practise temporarily in another Member State under their home-country professional titles is to make it easier for them to practise the profession without restriction in accordance with Directive 89/48/EEC; whereas under Articles 48 and 52 of the Treaty as interpreted by the Court of Justice the host Member State must take into consideration any professional experience gained in its territory; whereas, after the effective pursuit in the host Member State for an unbroken period of three years of an activity involving the law of that State including Community law, it is reasonable to assume that a lawyer will have gained sufficient experience to become fully integrated into the legal profession there; whereas total exemption from any compensatory measures must therefore be automatically granted; whereas, if the unbroken period of activity in the host Member State does not involve the law of that State, including Community law, the compensation measures must be limited to an aptitude test on the law of procedure and the rules of professional conduct in the host Member State;

>Text following EP vote>

14. Whereas the purpose pursued by this Directive in enabling lawyers to practise in another Member State under their home-country professional titles is to make it easier for them to practise the profession without restriction in accordance with Directive 89/48/EEC; whereas under Articles 48 and 52 of the Treaty as interpreted by the Court of Justice the host Member State must take into consideration any professional experience gained in its territory; whereas, after the effective pursuit in the host Member State regularly for a period of three years of an activity involving the law of that State including Community law, it is reasonable to assume that a lawyer will have gained sufficient experience to become fully integrated into the legal profession there; whereas at the end of that period the migrant lawyer should be able to gain access to the profession where he can, after verification, furnish evidence of professional experience in the host Member State;

(Amendment 6)

Recital 15

>Original text>

15. Whereas lawyers practising under their home-country professional titles must be afforded the opportunity of attending lectures or seminars in the host Member State so that they might acquire a knowledge of that State's law, including the rules regulating professional practice and conduct, or add to their existing knowledge in those areas;

>Text following EP vote>

Deleted

(Amendment 28)

Article 1(2)(a)

>Original text>

(a) 'lawyer' means any person who is a national of a Member State and who is authorized to pursue his professional activities under one of the following professional titles:

- Belgium: Avocat/Advocaat/

Rechtsanwalt

- Denmark: Advokat

- Germany: Rechtsanwalt

- Greece: Äéêçãüñïò

- Spain: Abogado

- France: Avocat

- Ireland: Barrister, Solicitor

- Italy: Avvocato, Procuratore legale

- Luxembourg: Avocat

- Netherlands: Advocaat

- Portugal: Advogado

- United Kingdom: Advocate, Barrister, Solicitor

>Text following EP vote>

(a) 'lawyer' means any person who is a national of a Member State and who is authorized to pursue his professional activities under one of the following professional titles:

- Belgium: Avocat/Advocaat/

Rechtsanwalt

- Denmark: Advokat

- Germany: Rechtsanwalt

- Greece: Äéêçãüñïò

- Spain: Abogado/Advocat/

Avogado/Abokatu

- France: Avocat

- Ireland: Barrister, Solicitor

- Italy: Avvocato, Procuratore legale

- Luxembourg: Avocat

- Netherlands: Advocaat/

Procureur

- Portugal: Advogado

- United Kingdom: Advocate, Barrister, Solicitor

- Austria: Rechtsanwalt

- Finland: Asianajaja/Advokat

- Sweden: Advokat

(Amendment 8)

Article 1(2)(ea) (new)

>Text following EP vote>

(ea) 'relevant professional title' or 'relevant profession' means the professional title or profession governed by the competent authority with whom a lawyer has registered under Article 3, and 'relevant competent authority' means that authority.

(Amendment 9)

Article 1(3)

>Original text>

3. This Directive shall apply both to lawyers practising in a self-employed capacity and to lawyers practising in a salaried capacity in the home Member State and, subject to Article 8, in the host Member State.

>Text following EP vote>

3. This Directive shall apply both to lawyers practising in a self-employed capacity, with the sole exception of lawyers who have responsibilities within a government department and to lawyers practising in a salaried capacity in the home Member State and, subject to Article 8, in the host Member State.

(Amendment 10)

Article 2

>Original text>

Temporary right to practise under the home-country professional title

>Text following EP vote>

Right to practise under the home-country professional title

>Original text>

Any lawyer shall be entitled to pursue for five years in any other Member State under his home-country professional title the activities specified in Article 5. Practice on a permanent basis in the host Member State shall be subject to Article 10.

>Text following EP vote>

Any lawyer shall be entitled to pursue on a permanent basis in any other Member State under his home-country professional title the activities specified in Article 5. Integration into the profession of lawyer in the host Member State shall be subject to Article 10.

(Amendment 11)

Article 3(1)

>Original text>

1. A lawyer who wishes to practise in a Member State other than that in which he obtained his professional qualification shall register with the competent authority in that State.

>Text following EP vote>

1. A lawyer who wishes to practise in a Member State other than that in which he obtained his professional qualification shall register with the relevant competent authority in that State.

(Amendment 12)

Article 3(2)

>Original text>

2. The competent authority in the host Member State shall register the lawyer upon presentation of a certificate attesting to his registration with the competent authority in the home Member State. It may require that, when presented, the certificate be not more than three months old. It shall inform the competent authority in the home Member State of the registration.

>Text following EP vote>

2. The relevant competent authority in the host Member State shall register the lawyer upon presentation of a certificate attesting to his registration with the relevant competent authority in the home Member State. This certificate shall state that the lawyer concerned fulfils the conditions of honour, honourability and probity pertaining to the duties of a lawyer. It may require that, when presented, the certificate be not more than three months old. It shall inform the relevant competent authority in the home Member State of the registration.

(Amendment 13)

Article 3(4)

>Original text>

4. Where the competent authority in a host Member State publishes the names of lawyers registered with it, it shall also publish the names of lawyers registered pursuant to this Directive.

>Text following EP vote>

4. Where the relevant competent authority in a host Member State publishes the names of lawyers registered with it, it shall also publish the names of lawyers registered pursuant to this Directive.

(Amendment 14)

Article 4, title

>Original text>

Temporary practice under the home-country professional title

>Text following EP vote>

Practice under the home-country professional title

(Amendment 15)

Article 4(1)

>Original text>

1. A lawyer practising in a host Member State under his home-country professional title shall do so under that title expressed in the official language or one of the official languages of his home Member State.

>Text following EP vote>

1. A lawyer practising in a host Member State under his home-country professional title shall do so under that title, which must be expressed in the official language or one of the official languages of his home Member State, in an intelligible manner and in such a way as to avoid confusion with the professional title of the host Member State.

(Amendment 16)

Article 4(2)

>Original text>

2. A host Member State may require a lawyer practising under his home-country professional title to indicate the professional body of which he is a member in his home Member State or the judicial authority before which he is entitled to practise pursuant to the laws of his home Member State. A host Member State may also require a lawyer practising under his home-country professional title to include a reference to his registration with the competent authority in that State.

>Text following EP vote>

2. For the purpose of applying paragraph 1, a host Member State may require a lawyer practising under his home-country professional title to indicate the professional body of which he is a member in his home Member State or the judicial authority before which he is entitled to practise pursuant to the laws of his home Member State. A host Member State may also require a lawyer practising under his home-country professional title to include a reference to his registration with the competent authority in that State.

(Amendment 17)

Article 4(3)

>Original text>

3. Where there is a risk of confusion with the professional title used in the host Member State, the competent authorities in that State may ask that a reference to the home Member State be added.

>Text following EP vote>

Deleted

(Amendment 18)

Article 5(1)

>Original text>

1. Subject to paragraphs 2 and 3, a lawyer practising under his home-country professional title shall carry on the same professional activities as a lawyer practising under the professional title used in the host Member State and may inter alia give advice on the law of his home Member State, on Community law, on international law and on the law of the host Member State.

>Text following EP vote>

1. Subject to paragraphs 2 and 3, a lawyer practising under his home-country professional title shall carry on the same professional activities as a lawyer practising under the relevant professional title used in the host Member State and may inter alia give advice on the law of his home Member State, on Community law, on international law and on the law of the host Member State.

(Amendment 19)

Article 5(2)

>Original text>

2. Member States which authorize in their territory a prescribed category of lawyers to prepare formal documents for obtaining title to administer estates of deceased persons and for creating or transferring interests in land which, in other Member States, are reserved for professions other than that of lawyer may exclude from such activities lawyers practising under a home-country professional title conferred in one of the latter Member States.

>Text following EP vote>

2. Member States which authorize in their territory a prescribed category of lawyers to prepare deeds for obtaining title to administer estates of deceased persons and for creating or transferring interests in land which, in other Member States, are reserved for professions other than that of lawyer may exclude from such activities lawyers practising under a home-country professional title conferred in one of the latter Member States.

(Amendment 34)

Article 5(3)

>Original text>

3. For the pursuit of activities relating to the representation or defence of a client in legal proceedings and in so far as the law of the host Member States makes representation by a lawyer mandatory, that Member State may require lawyers practising under their home-country professional titles 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.

>Text following EP vote>

3. For the pursuit of activities relating to the representation or defence of a client in legal proceedings and in so far as the law of the host Member States reserves such activities to lawyers practising under the professional title of that State, the latter may require lawyers practising under their home-country professional titles 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.

(Amendment 20)

Article 6(1)

>Original text>

1. Irrespective of the rules of professional conduct to which he is subject in his home Member State, a lawyer practising under his home-country professional title shall be subject to the rules of professional conduct of the host Member State in respect of all the activities he pursues in its territory.

>Text following EP vote>

1. Irrespective of the rules of professional conduct to which he is subject in his home Member State, a lawyer practising under his home-country professional title shall be subject to the same rules of professional conduct as lawyers practising under the relevant professional title of the host Member State in respect of all the activities he pursues in its territory.

(Amendment 21)

Article 6(3a) (new)

>Text following EP vote>

3a. The competent authority of the host Member State shall, at their request, exempt lawyers practising under their home-country titles from the requirement to join the social security scheme for lawyers of the host Member State, provided they can prove that they are and will continue to be members of an equivalent social security scheme for lawyers in their home Member State.

(Amendment 22)

Article 8

>Original text>

A lawyer registered in a host Member State under his home-country professional title may practise as a salaried lawyer in the employ of another lawyer, an association or firm of lawyers, or a public or private enterprise where the host Member State so permits for lawyers registered under the professional title used in that State.

>Text following EP vote>

A lawyer registered in a host Member State under his home-country professional title may practise as a salaried lawyer in the employ of another lawyer, an association or firm of lawyers, or a public or private enterprise.

(Amendment 23)

Article 8, second paragraph (new)

>Text following EP vote>

Any Member State may exclude salaried lawyers in the employ of a public or private enterprise from pursuing the activity of representation or defence in the administration of justice for that enterprise, if lawyers established in the host Member State are not authorised to pursue that activity.

(Amendment 24)

Article 10(1)

>Original text>

1. A lawyer practising under his home-country professional title who has effectively pursued for an unbroken period of at least three years an activity involving the law of the host Member State including Community law shall, with a view to his gaining admission to the profession of lawyer in the host Member State and practising there under the professional title corresponding to the profession in that State, be exempted from any aptitude test which may be required under Article 4(1)(b) of Directive 89/48/EEC.

>Text following EP vote>

1. A lawyer practising under his home-country professional title who has effectively pursued regularly for a period of at least three years an activity involving the law of the host Member State including Community law shall, with a view to his gaining admission to the profession of lawyer in the host Member State, be exempted from the conditions set out in Article 4(1)(b) of Directive 89/48/EEC.

>Original text>

It shall be for the lawyer concerned to furnish proof of such effective pursuit for an unbroken period of at least three years of an activity involving the law of the host Member State. To that end, he shall provide the competent authority in the host Member State with any relevant information and documentation, notably on the number of cases he has dealt with and their nature. 'Effective pursuit for an unbroken period' means actual exercise of the activity without any interruption other than that resulting from the events of everyday life.

>Text following EP vote>

It shall be for the lawyer concerned to furnish proof of such effective pursuit regularly for a period of at least three years of an activity involving the law of the host Member State. To that end, he shall provide the relevant competent authority in the host Member State with any relevant information and documentation, notably on the number of cases he has dealt with and their nature. 'Effective and regular pursuit' means actual exercise of the activity without any interruption other than that resulting from the events of everyday life.

(Amendment 35)

Article 10(2), (3), (4), (5) and (6)

>Original text>

2. A lawyer practising under his home-country professional title who has effectively pursued for an unbroken period of at least three years a professional activity in the host Member State may be required, in accordance with Article 4(1)(b) of Directive 89/48/EEC only to take an aptitude test limited to the law of procedure and the rules of professional conduct of the host Member State.

>Text following EP vote>

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 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.

>Original text>

3. A lawyer practising under his home-country professional title may apply at any time during the five-year period referred to in Article 2 to have his diploma recognized pursuant to Directive 89/48/EEC with a view to gaining permanent admission to the profession of lawyer in the host Member State and practising it under the professional title used in that State.

>Text following EP vote>

3. A lawyer practising under his home-country professional title, who has effectively and regularly pursued a professional activity in the host Member State for a period of at least three years may, obtain from the relevant competent authority of that State admission to the profession of lawyer in the host Member State and the right to practise it under the professional title corresponding to the profession in that host Member State, under the conditions and in accordance with the procedures set out below:

>Text following EP vote>

(a) The relevant competent authority shall take into account the effective and regular professional activity pursued during the abovementioned period and any knowledge and professional experience of the law of the host Member State, and any attendance at lectures or seminars on the law of the host Member State, including the rules regulating professional practice and conduct.

>Text following EP vote>

(b) The applicant shall provide the relevant competent authority with any relevant information and documentation, notably on the cases he has dealt with. The competent authority of the host Member State may, in order to verify the information provided, require the applicant to undergo an interview.

>Original text>

4. When it examines an application, the competent authority shall take into account any attendance by the applicant at lectures or seminars on the law of the host Member State, including the rules regulating professional practice and conduct.

>Text following EP vote>

4. The relevant competent authority of the host Member State may, by reasoned decision subject to appeal under national law, refuse to allow the applicant the benefit of these provisions, if it considers that this would not be in the public interest, notably because of disciplinary proceedings, complaints or incidents of any kind.

>Original text>

5. The representatives of the competent authority entrusted with the examination shall preserve the confidentiality of any information received.

>Text following EP vote>

5. The representatives of the relevant competent authority entrusted with consideration of the application shall preserve the confidentiality of any information received.

>Original text>

6. A lawyer who gains admission to the profession of lawyer in the host Member State in accordance with paragraphs 1 to 5 shall be entitled to use his home- country professional title, expressed in the official language or one of the official languages of his home country, alongside the professional title used in the host Member State.

>Text following EP vote>

6. A lawyer who gains admission to the profession of lawyer in the host Member State in accordance with the above paragraphs shall be entitled to use his home- country professional title, expressed in the official language or one of the official languages of his home country, alongside the professional title corresponding to the profession of lawyer in the host Member State.

(Amendment 26)

Article 11, introduction

>Original text>

Where joint practice is permitted in the host Member State, it must take place in accordance with the following rules.

>Text following EP vote>

Where joint practice is authorized in respect of lawyers carrying on their activities under the relevant professional title in the host Member State, the following provisions shall apply in respect of lawyers wishing to carry on activities under that title or registering with the relevant competent authority in respect of that title.

(Amendment 27)

Article 11(5)

>Original text>

5. Notwithstanding points 1 to 4, a host Member State which prohibits practice of the profession of lawyer within a grouping controlled by persons who are not members of the profession may refuse to allow a lawyer registered under his home-country professional title to practise in its territory in his capacity as a member of his grouping if the decision-making power in that grouping is exercised preponderantly by persons who do not have the status of lawyer.

>Text following EP vote>

5. Notwithstanding points 1 to 4, a host Member State which prohibits practice of the profession of lawyer within a grouping controlled by persons who are not members of the profession may refuse to allow a lawyer registered under his home-country professional title to practise in its territory in his capacity as a member of his grouping if the capital of the grouping is held, the name under which it practises is used, or the decision-making power is exercised, de facto or de jure, by persons who do not have the status of lawyer within the meaning of Article 1(2) of this Directive.

>Text following EP vote>

Where the fundamental rules governing a grouping of lawyers in the home Member State are incompatible with the rules in force in the host Member State or with the provisions of the first subparagraph of this point, the host Member State may oppose the opening of a branch or agency within its territory without the restrictions laid down in Article 11(1).

Legislative resolution embodying Parliament's opinion on the proposal for a European Parliament and Council Directive 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 (COM(94)0572 - C4-0125/95 - 94/0299(COD))

(Codecision procedure: first reading)

The European Parliament,

- having regard to the Commission proposal to Parliament and the Council, COM(94)0572 - 94/0299(COD) ((OJ C 128, 24.5.1995, p. 6.)),

- having regard to Articles 189b(2), 49 and 57(1) and (2), first and third sentences, of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C4-0125/95),

- having regard to Rule 58 of its Rules of Procedure,

- having regard to the report of the Committee on Legal Affairs and Citizens' Rights (A4-0146/96),

1. Approves the Commission proposal, subject to Parliament's amendments;

2. Calls on the Commission to alter its proposal accordingly, pursuant to Article 189a(2) of the EC Treaty;

3. Calls on the Council to incorporate Parliament's amendments in the common position that it adopts in accordance with Article 189b(2) of the EC Treaty;

4. Calls on the Council to notify Parliament and open the conciliation procedure should it intend to depart from the text approved by Parliament;

5. Points out that the Commission is required to submit to Parliament any modification it may intend to make to its proposal as amended by Parliament;

6. Instructs its President to forward this opinion to the Council and Commission.