European Parliament resolution on the legal professions and the general interest in the functioning of legal systems
Date: 2006-03-23
Institutions: European Parliament
Subjects: EU law, competition law, confidentiality, legal profession, legal system, professional ethics, professional qualifications, services of general interest

1.12.2006

EN

Official Journal of the European Union

C 292 E/105

Thursday 23 March 2006

The financial contributions for actions referred to in Article 3(2)(b) may be awarded to Community

2.
consumer organisations which:

(a) are non-governmental, non-profit making, independent of industry, commercial and business or other
conflicting interests, and have as their primary objectives and activities the promotion and protection
of the health, safety and economic interests of consumers in the Community;

(b) have been mandated to represent the interests of consumers at Community level by national con-
sumer organisations in at least half of the Member States that are representative, in accordance with
national rules or practice, of consumers and are active at regional or national level; and

(c) have provided to the Commission satisfactory accounts of their membership, internal rules and

sources of funding.

The financial contributions for actions referred to in Article 3(2)(c) may be awarded to Community

3.
consumer organisations which:

(a) are non-governmental, non profit-making, independent of industry, commercial and business or other
conflicting interests, and have as their primary objectives and activities to represent consumer inter-
ests in the standardisation process at Community level;

(b) have been mandated in at least two thirds of the Member States to represent the interests of con-

sumers at Community level:

— by bodies representative, in accordance with national rules or practice, of national consumer

organisations in the Member States, or

— in the absence of such bodies, by national consumer organisations in the Member States that are
representative, in accordance with national rules or practice, of consumers and are active at
national level; and

(c) have provided to the Commission satisfactory accounts of their membership, internal rules and

sources of funding.

The financial contributions for actions referred to in Article 3(4) may be awarded to a public body
4.
or a non profit-making body designated by the Member State or the competent authority concerned and
agreed to by the Commission.

P6_TA(2006)0108

Legal professions

European Parliament resolution on the legal professions and the general interest in the functioning
of legal systems

The European Parliament,

— having regard to the UN's Basic Principles on the Role of Lawyers of 7 September 1990,

— having regard to Council of Europe Recommendation Rec (2000) 21 of 25 October 2000 on the free-

dom of exercise of the profession of lawyer,

— having regard to its resolution of 18 January 1994 on the profession of notary in the Community (1),

(1) OJ C 44, 14.2.1994, p. 36.

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Official Journal of the European Union

EN

1.12.2006

Thursday 23 March 2006

— having regard to its resolution of 5 April 2001 on scale fees and compulsory tariffs for certain liberal
professions, in particular lawyers, and on the particular role and position of the liberal professions in
modern society (1),

— having regard to its resolution of 16 December 2003 on market regulations and competition rules for

the liberal professions (2),

— having regard to Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by

lawyers of freedom to provide services (3),

— having regard to Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998
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 (4),

— having regard to Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-
border disputes by establishing minimum common rules relating to legal aid for such disputes (5),

— having regard to Directive 2005/36/EC of the European Parliament and of the Council of 7 September

2005 on the recognition of professional qualifications (6),

— having regard to its position of 16 February 2006 on the proposal for a directive of the European

Parliament and of the Council on services in the internal market (7),

— having regard to the Commission communication ‘Professional Services — scope for more reform’ of

5 September 2005 (COM(2005)0405),

— having regard to the European Court of Justice jurisprudence on Community competition law and

freedom to provide services, with specific reference to national rules on minimum legal fees,

— having regard to Rule 108(5) of its Rules of Procedure,

A. whereas the Court of Justice of the European Communities has recognised that:

— independence, absence of conflicts of interest and professional secrecy/confidentiality are core

values of the legal profession that qualify as public-interest considerations;

— regulations to protect core values are necessary for the proper practice of the legal profession,

despite the inherent restrictive effects on competition that may result from this,

— the purpose of the principle of freedom to provide services as applied to the legal professions is to
promote the opening up of national markets through the possibility offered to service providers
and their clients to benefit fully from the Community's internal market,

B. whereas any reform of the legal professions has far-reaching consequences going beyond competition
law into the field of freedom, security and justice and, more broadly, into the protection of the rule of
law in the European Union,

C. whereas the UN's Basic Principles on the Role of Lawyers of 7 September 1990 provide that:

— lawyers shall be entitled to form and join self-governing professional associations to represent their
interests, promote their continuing education and training and protect their professional integrity.
The executive body of the professional associations shall be elected by its members and shall
exercise its functions without external interference;

(1) OJ C 21 E, 24.1.2002, p. 364.
(2) OJ C 91 E, 15.4.2004, p. 126.
(3) OJ L 78, 26.3.1977, p. 17.
(4) OJ L 77, 14.3.1998, p. 36.
(5) OJ L 26, 31.1.2003, p. 41.
(6) OJ L 255, 30.9.2005, p. 22.
(7) Texts Adopted, P6_TA(2006)0061.

1.12.2006

EN

Official Journal of the European Union

C 292 E/107

Thursday 23 March 2006

— professional associations of lawyers have a vital role to play in upholding professional standards
and ethics, protecting their members from prosecution and improper restrictions and infringe-
ments, providing legal services to all in need of them, and cooperating with governmental and
other institutions in furthering the ends of justice and the public interest;

— disciplinary proceedings against lawyers shall be brought before an impartial disciplinary commit-
tee established by the legal profession, before an independent statutory authority, or before a court,
and shall be subject to an independent judicial review,

D. whereas adequate protection of the human rights and fundamental freedoms to which all persons are
entitled, be they economic, social and cultural, or civil and political, requires that all persons should
have effective access to legal services provided by an independent legal profession,

E. whereas the duties of legal professionals to maintain independence, to avoid conflicts of interest and to
respect client confidentiality are particularly endangered when they are authorised to exercise their
profession in an organisation which allows non-legal professionals to exercise or share control over
the affairs of the organisation by means of capital investment or otherwise, or in the case of multi-
disciplinary partnerships with professionals who are not bound by equivalent professional obligations,

F. whereas unregulated price competition between legal professionals which leads to a reduction in the

quality of the service provided operates to the detriment of consumers,

G. whereas the market in legal services is characterised by asymmetry of information between lawyers and
consumers, including small and medium-sized enterprises, since the latter do not have the necessary
criteria for assessing the quality of the services provided,

H. whereas the importance of ethical conduct, of maintaining confidentiality with clients and of a high
level of specialised knowledge necessitates the organisation of self-regulation systems such as those run
today by legal professional bodies and orders,

I. whereas civil-law notaries are appointed by Member States as public officials whose tasks include draw-

ing up official documents with special value as evidence and immediate enforceability,

J. whereas civil-law notaries take on extensive investigation and scrutiny work on behalf of the State in
matters relating to non-judicial legal protection, particularly in connection with company law — under
Community law in some cases — and as part of this work they are subject to disciplinary supervision
by the relevant Member State that is comparable to that applicable to judges and civil servants,

K. whereas the partial delegation of the authority of the State is an original element inherent in the
exercise of the profession of civil-law notary, and whereas it is currently exercised on a regular basis
and represents a major part of the activities of a civil-law notary,

1.
Recognises fully the crucial role played by the legal professions in a democratic society to guarantee
respect for fundamental rights, the rule of law and security in the application of the law, both when lawyers
represent and defend clients in court and when they are giving their clients legal advice;

Reaffirms the positions taken in its resolutions of 18 January 1994 and 5 April 2001 and its position

2.
of 16 December 2003;

3.
Notes the high qualifications required for access to the legal professions, the need to protect those
qualifications that characterise the legal professions, in the interests of European citizens, and the need to
establish a specific relationship based on trust between members of the legal professions and their clients;

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Official Journal of the European Union

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Thursday 23 March 2006

4.
Reaffirms the importance of rules which are necessary to ensure the independence, competence, inte-
grity and responsibility of members of the legal professions so as to guarantee the quality of their services,
to the benefit of their clients and society in general, and in order to safeguard the public interest;

5. Welcomes the Commission's recognition that reforms are best carried out at national level and that
the authorities of the Member States, notably the legislative bodies, are in the best position to define the
rules that apply to legal professions;

6.
Point out that the Court of Justice has allowed national legislators and professional associations and
bodies a margin of discretion when deciding what is appropriate and necessary to protect the proper exer-
cise of the legal professions in a Member State;

7.
Notes that each type of activity of a professional body must be looked at separately, so that the rules
on competition are applied to the association only when it is acting exclusively in the interests of its
members and not when it is acting in the general interest;

8.
Reminds the Commission that the aims of the rules governing legal services are the protection of the
general public, the guaranteeing of the right of defence and access to justice, and security in the application
of the law, and that for these reasons they cannot be tailored to the degree of sophistication of the client;

9.
Encourages professional bodies, organisations and associations of legal professions to establish codes
of conduct at European level, including rules relating to organisational matters, qualifications, professional
ethics, supervision, liability and communications, in order to ensure that the ultimate consumers of legal
services are provided with the necessary guarantees in relation to integrity and experience, and to ensure the
sound administration of justice;

10.
Invites the Commission to take account of the specific role of the legal professions in a society
governed by the rule of law, and to carry out a thorough analysis of how markets in legal services operate
when the Commission promotes a ‘less regulation, better regulation’ principle;

Invites the Commission to apply the competition rules, where applicable, in compliance with the

11.
case-law of the Court of Justice;

12.
Considers that the public interests overriding EU competition principles are to be found in the legal
system of the Member State in which the relevant rules are adopted or produce their effects, and that there
is no such thing as an EU public-interest test, however defined;

13.
Invites the Commission not to apply EU competition law to matters which, under the EU constitu-
tional framework, are left to the jurisdiction of the Member States, such as access to justice, which includes
issues such as the fee schedules to be applied by courts to liquidate lawyers' fees;

Stresses that previous obstacles to freedom of establishment and the freedom of legal professionals
14.
to provide services have,
in theory, been effectively removed by Directives 77/249/EEC, 98/5/EC and
2005/36/EC; notes, however, that the review will take place in two years' time and awaits with interest
this thorough assessment;

15.
Considers that fee scales or other compulsory tariffs for lawyers and legal professionals, even for out-
of-court services, do not violate Articles 10 and 81 of the Treaty, provided that their adoption is justified by
the pursuit of a legitimate public interest and that Member States actively supervise the involvement of
private operators in the decision-making process;

16.
Considers that Article 49 of the Treaty and Directives 2005/36/EC and 77/249/EEC make provision
for the principle of the country of destination to apply to scale fees and compulsory tariffs for lawyers and
other legal professionals;

Considers that Article 45 of the Treaty must be fully applied to the profession of civil-law notary as

17.
such;

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Official Journal of the European Union

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Thursday 23 March 2006

Calls on the Commission to consider carefully the principles and concerns expressed in this resol-

18.
ution when analysing the rules governing the exercise of the legal professions in the Member States;

Encourages professional organisations to continue developing their activities in the field of legal aid,

19.
in order to ensure that everyone has the right to receive legal advice and representation;

20.

Instructs its President to forward this resolution to the Commission.

P6_TA(2006)0109

European contract law and revision of the acquis

European Parliament resolution on European contract law and the revision of the acquis: the way
forward (2005/2022(INI))

The European Parliament,

— having regard to Rule 45 of its Rules of Procedure,

— having regard to the report of the Committee on Legal Affairs and the opinion of the Committee on

the Internal Market and Consumer Protection (A6-0055/2006),

A. whereas, whilst it seems that the European contract law initiative as described in the Commission
communication of 11 October 2004 (COM(2004)0651) and reported on in the Commission's First
Annual Progress Report (COM(2005)0456) should be seen primarily as an exercise in better law-mak-
ing at EU level, it is by no means clear what it will lead to in terms of practical outcomes or on what
legal basis any binding instrument or instruments will be adopted,

B. whereas, even though the Commission denies that this is its objective, it is clear that many of the
researchers and stakeholders working on the project believe that the ultimate long-term outcome will
be a European code of obligations or even a full-blown European Civil Code, and that in any event the
project is by far the most important initiative under way in the civil law field,

C. whereas the decision to work towards and on such a Code must be taken by the political authorities,
since the very decision to opt for a Code is political and its content, albeit legal, is predicated on social
and political objectives; whereas, given that in the future the political will may well exist to adopt such
a Code, it is essential that the present work be done well and with the appropriate political input,

D. whereas, even if the initiative in its present form is limited to rationalising and tidying up the acquis in
the field of consumer protection and to producing optional standard contract terms and conditions, it
is essential that the political authorities have a proper input into the process; in this connection, recent
experience with the adoption of a new Civil Code in the Netherlands could serve as a model,

E. whereas, if the aim is to revise the consumer protection acquis with a view to raising public confidence

in the internal market, it is necessary to deliver a high level of consumer protection,

F. whereas the final product of the initiative should be open to amendment by the EC legislature and

should be formally adopted by it,