CELEX: 51975PC0442
Language: en
Date: 1975-07-25
Title: Amended Proposal for a COUNCIL DIRECTIVE to facilitate the effective exercise by lawyers of freedom to provide services#(Presented by the Commission to the Council pursuant to the second paragraph of Article 149, of the EEC-Treaty)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (75) 442
Vol. 1975/0169
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In Übereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom 1.
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 ---pagebreak--- COMMISSION GF THE EUE.OPBAN CQMMUNITIES
                                   COM(75)442 final
                                   Brussel , 25 July 1975
                       Amended Proposai for a
                          COUNCIL DIRECTIVE
             to facilitate the effective exercise "by
             lawyers of freedom to provide services
             ( Presented by the Commission to the
             Council pursuant to the second paragraph
             of Article 149 , of the EEC-Treaty )
  COM(75 ) 442 final
 ---pagebreak---                                          II               XIIA5V75-E
                               Explanatory Mémorandum
1.    On 1 ? April 19b9 the Commission Submitted to the Council a proposal
      for a Directive concerning the attainment of freedom to provide
      services for certain activities of lawyers^ \ The Economic and
      Social Committee and the European Parliament delivered their .
                                                                      (2)
      Opinions on this proposal for a Directive on 25 February 1970
                                3  '
      and 21 September 19 / 2      respectively .
2.    Discussions on this proposal for a Directive began in the Council
      at the end of 1972 . These discussions quickly revealed differences
    . of opinion , in particular with regard to , first , the interpretation
      of Article 55 of the Treaty , and secondly , after the enlargement
      of the Community , the taking into account of certain factors peculiar
      to the new Member States whose legal systems are based on common law .
3. Furthermore , in the Judgments in Cases 2/?k ( Reyners v . Belgian State ) '
      of 21 June 197^ and 33/7 b ( Van Binsbergen v . Bestuur van de
      Bedri jfsvereniging voor de Metaalni jverheid ) of 3 December 197^» the
      case law of the Court of Justice of the European Communities revealed
      some important new elements . .
      At its 315th meeting on 26 November 197 ^* the Council ( Ministers of
      Justice ) requested the Commission to present an amended proposal for v
      a Directive . This amended proposal takes account of the new legal
      situation created by Judgments 2/7 ^ and 33/7 ^ as well as of the
      circumstances of Member States with common law systems .
5.    The Commission has adopted this amended proposal after discussions
      with the government authorities of Ireland and the United Kingdom ,
   ( on the one hand , and with the Consultative Committee of Bar
      Associations of the EEC Member Countries on the other .
      ( 1 ) 0J Ko . C ?8 , 20 June 1969
      ( 2 ) 0J No . C 36 , 28 March 1970
      ( 3 ) OJ No . C 103 , 5 October 1972 .
 ---pagebreak---                                                                           11
                                                                          /  4
                                    II.I   .            - XIÏ/454/75-E
6.  The principal amendments contained in this doevjnant are described
    below .
7 . In its Judgment 33/74, the Court of Justice of the European Communities
    stated that since 1 Januaxy 197° Article 59 a-nd the third paragraph
    of Article 60 of tho treaty have had direct effect . Consequently those
    parts of the original proposal for a Directive which conoern the
    removal of restrictions are no longer necessary .
8. The original proposal " for a Direotive envisaged, in Article 2(2 ), the
    right , in the provision of services , of arguing a case without restric­
    tion before the courts, access to documents , visits to the prisoner
    and presence at the preparatory enquiry .
    Following the interpretation of Article 55 of the EEC Treaty given "by
    tho Court of Justioe in Judgment 2/f4, there is no doubt that activi­
    ties such as the representation and defence of parties in a lawsuit
    are not covered by that Article , even if they are carried out pursuant
    to an obligation or an exclusive right laid down by law . It therefore
    appears possible to adopt measures to "facilitate the effective exer­
    cise " of all the activities of lawyers .
9.  A new fonaula has been introduced into Article 2 of the amended pro­
    posal . This means that "the effective exercise" of the activities in
    question is in the main made possible by the recognition as lawyers of
    persons who are regularly practising this profession in another Member
    Stance . For the purpose of clarity , the professional titles of these *
    persons are given in d rbail in paragraph 2 of Artiole 1 .
 ---pagebreak---                                       IV                     ХП/454Л5-Е
10 .    Article 3 ox the new text replaces the first indent of Article 5
        of the original proposal without material change .
11 .    The new Article 4 takes account of the special aspects arisirg in
        connection with activities of representation and defence of a client
     • before the courts . It is necessary first of all to adopt the prin­
        ciple of the application of the conditions in force in the host
        Member State , with the exception, of course , of any condition of
        residence that Stat6 . Then it is essential that the lawyer acting
        within tho framework of the judicial system of a country other than
        his own should be subject to the professional rules applicable to
        lawyers established in the host Member State , altnough remaining
        subject to the rules of the country from whioh he comes . I 'orecver,
        certain special provisions are necessary to take account of the
        different types of lawyer within Ireland and the United Kingdom .
        As to other activities , not directly related to the administration
        of justice , the requirement to respect the professional rules of the
        host Member State would introduce a noticeable constraint upon the
        provioioa of eanriooe, wi-thout etiffioietrt- reasonj moreover such a require­
        ment would not correspond to present practice , where there e::ist3
        almost complete freedom as regards these activities .
12 .    Following discussions which it had with representatives of the pro­
        fession, the Commission proposes that Article 3 of the original pro­
        posal be deleted, First t it is evident that , by definition, the pro­
      . vision of services does not take plaoe from an establishment in
        the host country within the meaning of Article 52 . Secondly, a pro­
        vision whereby services woitld have to be provided under       coiviract
        concluded in the courso of the lawyer 's professional activities",
        appears to be too restrictive .
 ---pagebreak---                                     ν                     ni/434/75-S
 In' Article 5 of the 'not ;- text the Commission has provided for
 certain amendments to Article d of the original proposal in order
 to take account in particular of the new legal situation created by
 Judgment 33/f4 » First , it appears necessary to change the original
 provision into a next-binding prevision, to enable Member States
 with less restrictive rules or practices to retain thera .
 Secondly, the provision relating to collaboration between the person
 providing services and the local lawyer has become the subject of a new
 text . The Commission has been unable to agree to a suggestion made by
 some that provision should be made for a Member State to be able to
 require that a lawyer providing servioes relating to the representa­
 tion and defence of a client before the courts should act "under the
 direction" or "under the oontrol " of a local lawyer. Such wording
 would in fact make it possible to remove a great deal of the sut>-
 stance of the Eirective . The Commission accepts however that in cases
 where a lawyer providing services is required to aot in conjunction
 with a local lawyer, it may also be necessary , in some Member States ,
 to require that the local lawyer concerned should be the parson respon­
 sible to the Court in question*:? Provision1 has' accordingly been made
 to meet this point .                                r. ' . .
 Artiole 6 of the new; text constitutes an adapted and simplified , !
 version of the provisions of Artiole 7 of the original proposal .
•Artiole 7 6f the now text combines the provisions of Articles 3 and 9
 of the original proposal .
 ---pagebreak---                                                                                            XII/454/75-E
           amended prrporal for a C our.oil Directive
           ■ Ii ■ Bin– imntjmmum.imtmm -* ■ ri-.Tjf yr»i*jT^iiw, .-tw « y»-mni>>iwi « n ».m
                to facilitate the effective exercise
          by laiyers of freedon to provide services
THE COUNCIL OP THE EUROPEAN" C0IJOTITIE3 ,
Having regard to the Treaty establishing the European Economic
Community, and in particular Articles 57 snd- 66 thereof ;
Eavin^ regard to the proposal from the Commission ;
Having regard to the Opinion of the European Parliament ;
Having regard to the Opinion of the Economic md Social Committee
 ---pagebreak---                                  - 2 ~                 yt;
                                                        ■■■' ' ·  !■:
 Whereas pusuant to the Treaty all restrictions on the provision of
 servioe3 whioh are "based on nationality or on conditions of resi­
 dence have been prohibited since the end of the transitional period ?
Whereas this Directive deals only with measures to facilitate the
 effective exercise of the activities of lawyers by way of the provi­
 sion of services ? whereas measures to facilitate the effective exercise
 of the right of establishment will require more detailed preparation ?
Whereas if lawyers are to exercise effectively the freedom to pro­
vide services the host Member State must recognise the status as
lawyers of those persons practising the profession in the various
Member States ;
Whereas , since this Directive solely concerns provision of services
and does not contain provisions on the mutual recognition of diplomas ,
 a benefioiary of the Directive must adopt the professional title used
 in the Member State in which he is established ?
Whereas the lawyer should exercise activities relating to the repre­
 sentation and defence of a client before the courts under the same
 oonditions as lawyers established in the host country, to the exclusion,
.however, cf any requirement of a fixed abode in that country and any
 condition of registration with a professional organisation ?
 Whereas for the exercise of these activities provision should be made
 to ensure that the lawyer observes the rules of professional conduct
 of the host Member State , without prejudice , however, to his obliga­
 tions in the Member State from which he comes ? whereas , if in a Member
 State the profession of lawyer is carried on by several categories of
 lawyer, each of which is subjeot to its own professional rules it is
 necessary to determine which rules must be observed by a lawyer from
 another Member State ?
 ---pagebreak---                               -3 -                  m/454/75-E
Whereas for the exercise of activities other than those relating
to the representation and defence of a client before the courts ,
and in order to preserve the freedom which at present exists in this
field within the Community, it is sufficient to ensure that the
lawyer remains subject to the professional rules of the Member
State from which he comes j
Whereas , as regards activities relating to the representation and
defence of a client before the courts , the existing differences bet­
ween certain Member States in matters of rules of procedure could
justify a requirement that a lawyer providing services should colla­
borate with a local lawyer who would be , if necessary, responsible
to the court in cuostionj
Whereas the professional organisation of the host Member State should
be given powers to verify that the person providing services is duly
authorised to pursue his activities in the courrfciy in which he is
established «
 ---pagebreak---                                      . - 4
      HAS ADOPTED THIS DIRECTIVE :      '   "
                                 Articl'o 1   ,
                                        ' Ί
1 . The provisions of this Directive shell fpply, within the limits
      and under the conditions laid down by then , to the activities of
      lawyers carried on Toy way of provision of services .           '
2 . " Lawyer" means persons exercising a professional activity under
      one of the following designations :
  •   Belgitun                                                "   '
      Avocat - Advoca?.t -    '                                 '
      Denmark
      Advokat
      Germany                                            ■
      Rechtsanwalt
      France
     Avocat
                               ,            ■
      Ireland                                               ,
      Barrister practising at the oar
      Solicitor in private practice                                 .
      Italy
      Awocato
    . IJixeEÏbourg
      Avocat - avoué
     Netherlcnds
      Advocaat
      United ICmpdom
      Advocate practising at the bar
      Barrister practising at the bar
      Solicitor in private practice
 ---pagebreak---                                      - 5 -                   XH/454/75-E
                                  Article 2
Each Member State shall recognise as a lawyer for the purpose of exer­
cising the activities specified in Article 1 (l ), any person listed in
para . 2 of that article .
                                  Article 3
A person referred to in Article 1 shall adopt the professional title used
in the Member State from which he comes expressed in the language of that
countiy» with an indication of the professional organization to which he
belongs , or the court of law with which he is registered pursuant to the
laws of the Member State from which he comes .
                                  Article 4
1 ) The activities of lawyers relating to the representation and defence
    of a client before the courts shall be carried on in each host Member
    State under the conditions laid down in respect of lawyers established
    in that State , with the exception of any condition requiring residence
    in that State or registration with a professional organization ,
2 ) In the exercise of these activities the lawyer will obey the rules of
    professional conduct laid down in the host Member State without predudice
    to his obligations in the Member State from which he comes ,
3 ) When these activities are pursued in the United Kingdom, "rules of pro­
    fessional corduct laid down in the host Member State " means the rules of
    professional conduct applicable to solicitors , where the activities are
    not reserved for barristers and advocates . Otherwise the rules of profes­
    sional conduct applicable to the latter shall apply. However, barristers from
    Ireland shall always be subject to the rules of professional corduct appli­
    cable to barristers and advocates .
    When these activities are pursued in Ireland, "rules of professional con­
    duct laid down ir. the host Member State " means the - rules - of, profoasional con­
    duct applicable to solicitors . However, barristers and advocates from the
    United Kingdom shall always be subject to the rules of professional con­
    duct applicable to barristers ,
4) For the exercise of activities other than those referred to in para . 1 ,
    the lawyer remains subject to the rules of professional conduct only of
    the Member State from which he comes .
 ---pagebreak---                                     м   П  «                           χπ/'^ν'τ-^
                                   Article 5
  For the pursuit of activities relating to the representation and
  defa . ce of a client before the courts , Member States may impose
  the following obligations on persons wishing to provide services i
  - they must be introduced , in accordance with Ipcal custom , to the
    presiding judge ;
  - they must work in conjunction with a lawyer who is a member of the
    competent bar of the host Member State and who would "be , if necessarj
    responsible to the court in question , or with en "avoue " or
    "procuratore " practising at that court .
.           •'       ■  ' ;'    .'  : :   : ' ■   * . -.i    •                  .   • i y    J
                                   Article 6
  The professional organization in the host Member State may request
  the person providing the services to establish his qualifications
  as a lawyer . On request , it may_have the validity of such
  qualifications confirmed .                    .          .
  In the event of a breach of the msLes of professional conduct ftf the he
  Member State., the professional organization of the latter shall
                                                         1
  determine in accordance with its own rules and procedure the                          -r •
  consequences of this - behaviour , and to this end can obtain
  the transmission of the file of the person providing services . -
  It shall inform the professional organization in the Member State from
  which ho comes ,of any decision taken . Such communications
  do pot alter the confidential character of the file ;
"                   ' .      '•    Article 7        - <-    ■ " '• 1 "  ' ' ■ "
  Member States shall bring into force the measures necesssry to
  comply with this Directive within eighteen months of its notifica­
  tion and shall forthwith inform the Commission thereof .
  Member States shall . communicate to the Commission the texts of the
  main provisions of natipnal ( law which they, adopt in the field
  covered by this Directive.#                                                     ;
                                   Article 8
  This Directive is addressed to the Member States
  Done at Brussels                                      For the Council
                                                               The President