4.3.76 Official  Journal  of the  European  Communities No C 50/17 
Opinion  on the  amended  proposal  for a Council  Directive  to facilitate  the effective 
exercice  by lawyers  of freedom  to provide  services 
The text  referred  to the  Committee  has  been  published  in Official  Journal  of the 
European  Communities  NoC213ofl7  September  1975,  page  3. 
A. LEGAL  BASIS  FOR  THE  OPINION 
On 1 September  1975  the Council  referred  the abovementioned  proposal  to the Economic 
and Social  Committee  in accordance  with  Article  198  of the  Treaty  establishing  the 
European  Economic  Community. 
B. OPINION  OF THE  ECONOMIC  AND  SOCIAL  COMMITTEE 
The Economic  and  Social  Committee  prepared  its opinion  on the above  matter  at its 
136th  plenary  session,  held  in Brussels  on 28 and 29 January  1976. 
The full  text  of the opinion  is as follows: 
THE  ECONOMIC  AND  SOCIAL  COMMITTEE, 
Having  regard  to the request  for an opinion  made  by 
the Council  of the  European  Communities  on 1 
September  1975, 
Having  regard  to  the  Treaty  establishing  the 
European  Economic  Community,  and  in particular 
Article  198 thereof, 
Having  regard  to the decision  taken  by its Bureau  on 
23 September  1975,  instructing  the  Section  for 
Industry,  Commerce,  Crafts  and  Services  to draw  up 
an opinion  on the matter, 
Having  regard  to its opinion  on the proposal  for a 
Directive  concerning  the attainment  of the freedom  to 
provide  services  for certain  activities  of lawyers  (*), Justice  concerning  freedom  of establishment  and  the 
freedom  to provide  services  on the other  hand  have 
made  it necessary  for the Commission  to amend  its 
original  proposal  for a Directive; 
Whereas  consultation  of the  Committee  under  the 
procedure  set out in the second  paragraph  of Article 
149 constitutes  a precedent;  whereas  the  same 
procedure  should  be  followed  in similar  cases 
involving  the  freedom  of establishment  and  the 
freedom  to provide  services; 
Whereas  following  the  adoption  of  Directives 
concerning  the freedom  of establishment  of doctors, 
such steps  should  also  be taken  for  other  liberal 
professions;  whereas  the Committee  should  be asked 
to deliver  an opinion  in each  instance, 
Having  regard  to the opinion  issued  by the Section 
for Industry,  Commerce,  Crafts  and  Services  at its 
meeting  on 7 January  1976, 
Having  regard  to the  oral  report  made  by the 
rapporteur,  Mr De Bruyn, 
Having  regard  to the discussions  at its 136th  plenary 
session,  held  on 28 and  29 January  1976  (meeting  of 
28 January  1976), 
Whereas  the enlargement  of the Community  on the 
one hand  and  the recent  judgments  of the Court  of HAS  UNANIMOUSLY  ADOPTED  THE  FOLLOWING 
OPINION: 
The Committee  endorses  the amended  proposal  for a 
Directive,  subject  to the comments  set out below: 
1. General  comments 
1.1. The  limited  scope  of the proposal 
H OJ  No C 36, 28. 3. 1970. The Committee  is pleased  to note  that  the amended 
proposal  for  affording  lawyers  greater  freedom  to 
No C 50/18 Official  Journal  of the  European  Communities 4. 3.76 
provide  services  goes  further  than  the Commission's 
original  proposal.  However,  it considers  that  the new 
proposal  is merely  a start  and  that  efforts  will  have  to 
be continued  in this  area.  There  is also  a need  for 
measures  to implement  freedom  of establishment. 
This  will  raise  the question  of the mutual  recognition 
of diplomas,  not only  for lawyers,  but also  for other 
self-employed  persons  working  in law,  finance, 
accountancy  and  taxation. initial  proposal  — that  freedom  to provide  services 
does  not include  the setting  up in another  country  of 
an office  that  might  build  up a new  clientele  there. 
Nevertheless,  as the Committee  sees  it, a ban  on a 
permanent  or semi-permanent  office  in the  host 
country  is inherent  in the  distinction  between  'the 
right  of establishment'  and  'the  provision  of services' 
which  follows  automatically  from  the provisions  of 
the Treaty,  and  in  particular  from  the  third 
paragraph  of Article  60. 
1.2. The  provision  of advice  by lawyers 
The intensification  of dealings  between  Member 
States  in the  economic,  commercial,  financial  and 
scientific  sectors  has  greatly  increased  the  need  for 
legal  advice.  If the  current  restrictions  on lawyers' 
freedom  to provide  services  are maintained,  this  will 
have  serious  repercussions  on the  quality  of legal 
advice  and  clients'  interests  will  not  be effectively 
safeguarded.  It will  not be possible  to meet  the need 
for first-class  advice  and  legal  certainty  unless  we 
abolish  all  obstacles  preventing  lawyers  from 
providing  their  services. 2.2. Article  1 (2) 
2.2.1.  For  the  sake  of clarity,  the  Committee 
proposes  that  the  beginning  of Article  1 (2) be 
reworded  as follows: 
'"Lawyer"  means  a person  exercising  a pro-
fessional  activity,  in accordance  with  the  laws 
of the country  in which  he or she  is established, 
under  one  of the following  designations:'. 
1.3. Representation  and  defence  of clients  by lawyers 
before  the courts 
The right  of the  individual  to be represented  or 
defended  by the  lawyer  of his  choice  must  be 
respected.  Since  this  is a basic  liberty,  the Community 
must  ensure  that  each  citizen  can  freely  choose  a 
lawyer  irrespective  of nationality  and  of the Member 
State  or region  in which  the case  is to be heard.  In 
the client's  interest,  however,  there  must  be certain 
guarantees  to prevent  proceedings  from  running  into 
difficulties.  Accordingly,  the Committee  thinks  that, 
in addition  to being  governed  by the  professional 
rules  applicable  in his country  of origin,  a lawyer 
should  also  be subject  to the  code  of professional 
conduct  of lawyers  in force  in the host  country.  This 
principle  of two  codes  of conduct  will  be acceptable 
as long  as the  professional  bodies  throughout  the 
Community  have  not  aligned  the  main  rules  of 
professional  conduct. 
2. Specific  comments 
2.1. Article  1(1) 
The Committee  notes  that  the Commission  no longer 
states  — as it did in the third  indent  of Article  3 of its 2.2.2.  The  designation  chosen  for  solicitors  in 
Ireland  and  the  United  Kingdom  would  seem  to be 
too restrictive,  since  it does  not  cover  all solicitors 
who have  the  right  of audience  at court.  The 
Committee  would  therefore  ask  the  Commission  to 
consider  whether  it would  not  be preferable  to 
replace  'solicitor  in private  practice'  by 'solicitor 
holding  a practising  certificate'  in the  case  of the 
United  Kingdom  and  by  'solicitor  qualified  to 
practice'  in the case  of Ireland. 
2.3. Article  4 
2.3.1.  The  Committee  endorses  Article  4 (1), which 
is in line  with  its general  comments  under  1.3.  It 
would  point  out  that  the  restrictions  imposed  by 
Member  States  on lawyers  representing  or defending 
clients  might  take  the form  of limiting  their  rights  of 
audience  to certain  courts.  Such  restrictions  might 
also be based  on Article  56 of the  Treaty,  which 
authorizes  special  treatment  on the grounds  of public 
security,  etc. 
2.3.2.  The  Committee  proposes  that  'in that  State' 
in the last  line  of Article  4 (1) be moved  to the end  of 
the sentence. 
4. 3. 76 Official  Journal  of the  European  Communities No C 50/19 
2.3.3.  In  connection  with  Article  4 (4), which 
provides  for  an exception  to the  'two  codes  of 
conduct'  principle  for  activities  other  than  those 
relating  to the  representation  or defence  of clients 
before  the courts,  the Committee  underlines  the need 
for a further  step  to be taken  towards  liberalizing  the 
provision  of legal  services.  Where  members  of the 
profession  only  have  to comply  with  the disciplinary 
rules  applicable  in their  country  of origin,  they  are 
not any  more  likely  to disregard  the  fundamental 
precepts  of professional  conduct  common  to all 
Member  States,  such  as professional  secrecy.  The 
Committee  also  thinks  that  the interests  of clients  and 
opposing  parties  would  be adequately  safeguarded  if 
the professional  body  of the  host  country  could 
investigate  alleged  cases  of misonduct.  This  body 
should  be authorized  to communicate  its findings  to 
its counterpart  in the lawyer's  country  of origin.  The 
latter  body  would  then  be obliged  to inform  the host 
country's  professional  body  of any  decision  taken.  (In 
contrast,  Article  6 provides  for  more  extensive 
disciplinary  powers  for dealing  with  breaches  of the 
rules  of conduct  relating  to the  representation  and 
defence  of clients  before  the courts.)  Therefore,  the 
Committee,  in line  with  its comments  under  2.1  on 
the occasional  nature  of the  services  in question, 
proposes  that  Article  4 (4) be reworded  as follows: 'For the  exercise  of activities  other  than  those 
referred  to in paragraph  1, the  lawyer  shall 
remain  subject  to the  rules  of professional 
conduct  of the  Member  State  from  which  he 
comes,  without  prejudice  to the  fundamental 
principles  underlying  the code  of conduct  of the 
bar of the host  Member  State. 
In the event  of an allegation  of misconduct  on the 
part of a lawyer,  the professional  organization  of 
the host  Member  State  may  hold  an investigation 
and submit  a report  to  the  professional 
organization  of the Member  State  from  which  the 
lawyer  comes  that  has  the  power  to take 
disciplinary  action;  the  latter  organization  shall 
inform  the professional  organization  in the  host 
Member  State  of any  decision  taken.' 
2.4. Article  5 
The words  'if necessary'  in the  second  indent  are 
superfluous  and  should  therefore  be deleted,  since 
Member  States  have  the  discretionary  power  to 
impose  restrictions  on  non-nationals  providing 
services. 
Done  at Brussels,  28 January  1976. 
The Chairman 
of the Economic  and  Social  Committee 
Henri  CANONGE 
Opinion  on the Commission  proposals  to the Council  on the fixing  of prices  for certain 
agricultural  products  and  on certain  related  measures 
The text  referred  to the  Committee  has  been  published  in Official  Journal  of the 
European  Communities  No  C 31 of 11 February  1976,  page  2. 
A. LEGAL  BASIS  FOR  THE  OPINION 
On 16 December  1975  the  Council  referred  the  abovementioned  proposals  to the 
Economic  and  Social  Committee  in accordance  with  Articles  47 and  198  of the Treaty 
establishing  the European  Economic  Community.