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 ()

(95/C 256/05)

On 29 May 1995 the Council decided to consult the Economic and Social Committee, under Article 49 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Social, Family, Educational and Cultural Affairs, which was responsible for preparing the Committee's work on the subject, adopted its Opinion on 15 June 1995. The Rapporteur was Mr Cavaleiro Brandão.

At its 327th Plenary Session (meeting of 5 July 1995), the Economic and Social Committee adopted the following Opinion by a majority vote with three abstentions.

1. Introduction

There have already been two Community Directives dealing with the practice of the profession of lawyer at European level.

1.1. Directive 77/249/EEC was designed to facilitate lawyers' freedom to provide services. By failing to go any further, the Directive expressly disregarded the right of establishment.

Broadly speaking, this Directive establishes the principle of mutual recognition of licences to practise. Thus it allows a lawyer established in one Member State to give advice and provide services in another Member State.

However, the lawyer's professional services may only be rendered under the home-country professional title, and not under any host-country professional title.

In addition, when representing and defending a client before the courts, a lawyer may be obliged to work in conjunction with a local lawyer. This is a requirement in most Member States.

1.2. Directive 89/48/EEC established a general system for the recognition of higher educational diplomas awarded on completion of professional education and training of at least three years' duration. It also laid down a number of specific rules for lawyers.

Under this Directive, a lawyer holding a diploma required in one Member State in order to gain admission to or practise the legal profession may, before being admitted to or allowed to practise the profession in another Member State, be required, at the discretion of that Member State, to complete an adaptation period or sit an aptitude test. With the exception of Denmark, which requires an adaptation period only, all Member States have opted for the aptitude test.

The Directive therefore constitutes the legal framework henceforth guaranteeing the right to practise the profession on a permanent basis in any Member State other than the one where the qualification was obtained.

2. General comments

2.1. For some time, the rules laid down in these two Directives were deemed by many to be adequate as far as the legal profession was concerned.

However, after years spent discussing the matter in great detail, the CCBE (Consultative Committee of the Bars and Law Societies of the European Community), which represents European lawyers, adopted a draft set of rules at its October 1992 Plenary Session in Lisbon by a large majority. It is this draft which forms the basis of the present Commission initiative.

2.2. It was felt that it would be useful to do more than just lay down some general and formal rules governing recognition of lawyers' diplomas, since this objective had already been achieved by means of Directive 89/48/EEC.

It was agreed that the following steps would be valuable:

- closer regulation of arrangements for the professional integration of migrant lawyers in the host country, making the process easier and more flexible;

- provision and legislation at European level for joint practice of the profession of lawyer;

- establishment of the principles of professional conduct and disciplinary proceedings which apply.

2.3. The Committee endorses these goals and agrees in principle with the proposal as a whole, subject to the reservations expressed below.

The Committee would nevertheless point out that the Commission proposal differs in essential points from the CCBE proposal in that it

a)

sets a time limit on the right of establishment under the home-country professional title, and

b)

generally dispenses with an aptitude test for lawyers wishing to be fully integrated in the host Member State [Article 10(1)].

2.4. The Committee wholly shares the concerns expressed in the Sutherland Report regarding the whole system of justice in the EU.

On the one hand, it is true that completion of the internal market involves an ever closer relationship between the legal systems in the various Member States, and that individuals and companies increasingly require legal back-up which is better informed and coordinated transnationally, albeit still within the European Union.

On the other hand, there is a matter which is even more challenging: it is clear that it will only be possible to set up a better integrated and increasingly harmonized European legal system if measures are taken to stimulate and facilitate the movement of the lawyers who are at the heart of this process of mutual familiarization and gradual alignment.

The proposed Directive, which aims to stimulate and facilitate genuine freedom of movement and establishment for lawyers, may prove to be a significant step forward on the road to these objectives.

3. Specific comments

3.1. Articles 2 to 9 govern the right to practise and the practice of the profession by migrant lawyers who have relocated to a host Member State on a temporary basis for a period of five years under their home-country professional title.

3.2. According to these Articles, during a transition period of not more than five years, migrant lawyers are to be progressively integrated into the system of professional rules and organization of the host country until, at the end of this period, their full integration is recognized and formally confirmed.

To this end, lawyers are to register with the competent authority in the host country and to practise under their home-country professional title, in accordance with the rules of professional conduct of the host country and subject to the rules of procedure, penalties and remedies provided for in that country. The Committee agrees with these principles, but sees no justification for the five-year time limit.

3.3. Article 5 permits migrant lawyers to give advice not only on the law of their home Member State and on international and Community law, but also on the law of the host Member State.

3.4. As stated above, the Committee endorses the aim of guaranteeing professional integration in the host country for migrant lawyers, especially if this integration allows them to acquire the technical, legal and professional knowledge required to practise in a responsible and competent manner.

3.5. On this point, the Committee has some reservations about allowing migrant lawyers to give advice in their professional capacity on the law of a host country from the very beginning of their time in that country, i.e. without necessarily having received any in-service training or attending additional training courses, or without their competence in that area having been assessed in any way beforehand.

This being the case, there is clearly insufficient protection of consumers' rights.

3.6. Article 6 governs the rules of professional conduct applicable, largely on the basis that the rules of the host country take precedence.

The Committee feels that it would be useful to include a specific reference to the Code of Conduct approved by the CCBE and already adopted by the Bar Associations in the various Member States, inasmuch as it is a Code with a European dimension which seeks to bring about a healthy degree of integration and which has been freely and spontaneously self-imposed by the professional organizations concerned.

4. Article 10 deals with the essential matter of diplomas, laying down as it does the terms under which a migrant lawyer's integration into the host country is effected in practical terms and formally finalized.

4.1. Thus, Article 10(1) primarily grants admission to the profession of lawyer in the host Member State, exempting migrants from any aptitude test which may be required under Directive 89/48/EEC provided that they prove that they have effectively pursued, for an unbroken period of at least three years, an activity involving the law of the host state, including Community law.

However, the text of the proposal contains two expressions, which, being ambiguous, will cause difficulties in its interpretation.

The expression 'effective pursuit for an unbroken period', with the definition given in the second paragraph of Article 10(1) which the Commission has taken from the Van de Bijl judgement (Case 130/88), is not clear enough to provide the precise and strict interpretation necessary for its application in practice.

How to interpret the expression 'law of the host Member State including Community law' is also open to doubt. If migrant lawyers have only practised the law of the host country, and not Community law, will they be prevented from applying for admission in the way set out here? On the other hand, this expression could mean that, for the purposes of this ruling, Community law is considered to be part of ('included') in the law of the host country; if so, will it be enough for lawyers to have practised Community law effectively for an unbroken period to acquire the professional title of the host country?

The Committee feels that both these expressions should be reworded and made clearer.

4.2. Article 10(2) stipulates that, irrespective of any exemption from the aptitude test required under the 1989 Directive, migrant lawyers may be required to take an aptitude test limited to the law of procedure and the rules of professional conduct of the host Member State.

The Committee stresses how important it is to have a knowledge of the language in general, and of the legal language in particular, in order to practise law in a responsible and competent manner. It therefore feels that this should be a specific factor in the procedure for integrating migrant lawyers.

The Committee accepts that, instead of the limited aptitude test specified in Article 10(2) of the proposal, another equivalent method of assessing the integration process and its results might be considered adequate and more appropriate.

4.3. Article 10(3) reiterates that, in any event, a lawyer practising under his home-country professional title, may apply to have his diploma recognized pursuant to Directive 89/48/EEC, that is, by taking an aptitude test.

However, it states that this may (only?) be done 'during the five-year period referred to in Article 2'.

This gives rise to a good deal of confusion and uncertainty.

4.3.1. Firstly, it appears that a lawyer has the right to apply for recognition of a diploma under Directive 89/48/EEC at any time, provided that the applicant sits and passes the required aptitude test, which is set internally by each Member State. It does not seem that there could, or much less should, be any time limit on doing this and it is unclear what the connection is between exercising this right, which derives from a general and abstract rule, and the five-year transition period which the proposed Directive has imposed for other purposes.

4.3.2. Secondly, it is not clear what the consequences would be if migrant lawyers (practising temporarily under the home-country professional title in the host state) were to take no action during the five-year transition period.

In other words, the proposal does not specify what happens, or should happen, to lawyers who, at the end of the five-year transition period, have neither applied for integration in the host country under the terms of Article 10(1) nor sought recognition for their diplomas pursuant to the 1989 Directive.

The Committee points out the need to clarify this point; it feels sure that it is not just an oversight, but an actual failure to adopt a political or substantive option.

4.3.3. In short, the following principles should be clearly set out with no time constraints imposed:

- the freedom to practise under the home-country professional title (in accordance with the rules laid down in Articles 3 to 9);

- the freedom to apply to sit the aptitude test specified in Directive 89/48/EEC.

4.4. Article 10(6) acknowledges and enshrines what appears to be an undisputed right of migrant lawyers, that is, the right to be allowed to continue using their home-country professional title alongside the professional title used in the host Member State.

While being wholly in agreement with this principle, the Committee would raise another, particularly relevant point in this connection.

The Committee feels that indicating the home-country title is not just the right of a migrant lawyer, but by the same token it is actually his duty.

The consumer of legal services, the lawyer's client or any of the parties involved in the network of professional relations emanating from a given situation is fully entitled to know that the lawyer in question, although a legitimate holder of the professional title of the host country, began his professional career in another Member State as well as completing his basic legal studies there.

The need for transparency and, in fact, a lawyer's strict duty of loyalty towards the client and the other parties require that, in addition to use of the professional title acquired at a later stage in the host state, the home-country professional title should also be displayed, as this is the basis on which the second professional title is acquired.

4.5. Article 11 contains new legislation governing the transnational aspects of joint practice within the European Union.

Given the innovative nature of these rules and the considerable diversity of existing arrangements for joint practice in the various Member States, it is very likely that practical considerations will necessitate a reworking of the proposed rules in the not too distant future.

However, the Committee supports the proposal in principle, in the belief that it is important to move in the direction outlined by the Commission and that, under present circumstances, it would be difficult to do any better.

4.6. The Committee does have some reservations about Article 11(5) even though it is aware that this point is not substantially different from the CCBE proposal.

As it stands, this ruling expressly allows for the existence of so-called MDPs (multidisciplinary partnerships) incorporating lawyers. This kind of partnership is only permitted under law in two Member States (Germany and Holland) and banned in most other Member States.

Many detailed arguments have emerged from the comprehensive debate which lawyers have been conducting on this issue, chiefly in connection with rules of professional conduct.

This is not the place to reiterate these arguments, but the Committee feels it would be inappropriate for such a complex problem to be sidestepped and fudged using a piece of legislation with a completely different rationale and objective which are not directly connected with the problem. It would therefore be preferable if the Directive avoided it.

Done at Brussels, 5 July 1995.

The President

of the Economic and Social Committee

Carlos FERRER

() OJ No C 128, 24. 5. 1995, p. 6.