WRITTEN QUESTION E-0203/03

by Maurizio Turco (NI) to the Commission

(3 February 2003)

Subject: Unequal access to the lawyer's profession caused by Directive 98/5/EC

Directive 98/5/EC(1) stipulates that the profession of lawyer may be practised, subject to certain conditions, in all Member States.

Conditions governing access to the profession of lawyer differ in the various Member States: to enter the profession, a law degree is sufficient in some countries while in others an exam also needs to be sat.

Given the growing number of cases in which law graduates enter the lawyer's profession in Member States whose legislation does not provide for an extra exam and subsequently, in accordance with Directive 98/5/EC, exercise the profession in countries in which the exam is compulsory.

Can the Commission say whether it is aware of this disparity?

Has it taken or does it intend to take steps to harmonise access to the lawyer's profession? If so, how and when?

What countries have not yet transposed Directive 98/5/EC into national law? In which cases have infringement proceedings been instituted pursuant to Article 226 of the Treaty? What stage have the proceedings reached in each of these cases?

(1) OJ L 77, 14.3.1998, p. 36.

Answer given by Mr Bolkestein on behalf of the Commission

(25 February 2003)

The Commission is aware that some Member States, unlike others, make access by their nationals to the profession of lawyer conditional on sitting an examination. However, under the Directive on a general system for the recognition of higher-education diplomas(1), someone who has obtained a law degree in a Member State where there is an additional examination requirement for access to the profession of lawyer cannot obtain the professional title of lawyer in another Member State unless they have passed the lawyer's examination in their home Member State. Since this Directive can be invoked only by fully qualified professionals, under the terms of Directive 98/5/EC(2) a person holding a higher-education diploma in law could become established as a lawyer in his or her home Member State, under the professional title used in the host Member State, only by obtaining academic recognition of his or her higher-education diploma, which would usually mean repeating most if not all of his or her training there. Such a requirement seems dissuasive, but the Commission is prepared to examine any evidence the Honourable Member may have in his possession on this subject.

The Commission does not intend to propose harmonisation of access to the profession of lawyer, as this is not necessary in order to ensure free movement for lawyers. Moreover, such harmonisation could run counter to the principle of subsidiarity, as explained in recital 7 of Directive 98/5.

France and Ireland have not yet transposed Directive 98/5. These instances of failure to act were noted by the European Court of Justice in the judgments it handed down, respectively, in case C-351/01 on 26 September 2002 and in case C-362/01 on 10 December 2002. If no communication of transposal measures is forthcoming, the Commission will pursue the infringement proceedings provided for under Article 228 of the EC Treaty.

(1) Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration, OJ L 19, 24.1.1989.

(2) Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer in a Member State other than that in which the qualification was obtained, OJ L 77, 14.3.1998.