WRITTEN QUESTION E-2220/01

by Mogens Camre (UEN) to the Commission

(24 July 2001)

Subject: Ban on payment for advocates' travelling time

Under the Danish legal system, an advocate may be appointed to act in criminal cases. He is then paid from the public purse for his services, the final amount of the fees depending on the outcome of the case.

The State often also covers the advocate's travel expenses and loss of earnings where he has to travel, but in some cases the law provides that the State shall not pay for travelling time, see para. 336c(3) of the Administration of Justice Act. In such cases a local advocate will be more competitive than an out-of-town or foreign lawyer.

This can be circumvented by agreement between the client and his advocate from outside. For example, a Danish lawyer with an office in London makes 12 journeys corresponding to 100 hours travel at DKR 2 500 to act in a case in the High Court Eastern Division in Copenhagen. It is agreed that The defendant or his family agree to pay the advocate KR 250 000 for his travel to the Court where the Court has previously declined to bear the cost.

Paragraph 336c(5) of the Administration of Justice Act does however contain provisions which may be interpreted as banning the defendant/accused from agreeing to cover his advocate's travelling time, even where payment from the public purse is refused and regardless of whether the accused/defendant at any point seeks to have this amount covered from public funds.

Under this arrangement the lawyer would be at a substantial disadvantage compared with a local lawyer.

The accused is also put at a disadvantage as his right to free choice of counsel is in fact removed if he himself is not allowed to defray the cost of travelling time for the counsel he wishes to have appointed to act for him in his criminal case.

Can this provision prohibiting a defendant/accused from agreeing with his advocate to cover the cost of the lawyer's travelling time be regarded as complying with ordinary competition law and in particular the Community's competition law and law of contract?

Answer given by Mr Bolkestein on behalf of the Commission

(24 September 2001)

The Commission feels that a general ban as briefly outlined by the honourable Member could in fact well hinder or make more difficult the freedom to provide services by lawyers that is guaranteed by Articles 49-55 of the EC Treaty.

As part of the follow-up to its communication on an internal market strategy for services(1), the Commission is currently working on the first phase of this strategy, which involves identifying and analysing thoroughly the barriers hindering the freedom to provide cross-border services between Member States. This will be followed by a second phase in which the most suitable solutions to the problems encountered will be proposed. In this regard, the Commission intends to examine the provisions of the Danish code of civil and criminal procedure, to which the honourable Member refers, in order to be able to decide whether such a provision is incompatible with the provisions of the Treaty with regard to the freedom to provide services and, if necessary, to propose appropriate measures to deal with the problem.

(1) COM(2000) 888.