CELEX: 51996PC0446
Language: en
Date: 1996-09-24
Title: Amended proposal for a European Parliament and Council Directive 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

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                 Brussels, 24.09.1996
                                                 COM(96) 446 final
                                                 94/0299 (COD)
                           Amended proposal for a
      EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
   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
       (presented by the Commission pursuant to Article 189 a (2)
                               of the EC-Treaty)
 ---pagebreak---  ---pagebreak---                           EXPLANATORY MEMORANDUM
1.       GENERAL CONSIDERATIONS
On 19 June 1996 the European Parliament delivered its opinion, at first reading as part
of the co-decision procedure, on the proposal for a Directive 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.
The Commission accepted Parliament's main amendments, particularly those
concerning the permanent character of establishment under the home-country
professional title and the replacement of the aptitude test by a verification procedure
for professional qualifications. It also took on board most of the other amendments
presented by Parliament. The only amendments which it was unable to accept
concerned four points which were of minor importance in the overall structure of the
Directive but raised questions of principle.
2.       ANALYSIS OF AMENDMENTS
 1.      The main amendments concern the permanent nature of the right to practise
under the home-country professional title (amendment 10, concerning Article 2) and
the replacement of the aptitude test by- a verification procedure for professional
qualifications (amendment 35, concerning Article 10(2)).
The permanent character of establishment under the home-country professional title
was requested by Parliament's Legal Affairs Committee, inter alia in the light of the
judgment handed down by the Court of Justice on 30 November 1995 in Case C-55/94
 Gebhard v Milan Bar Council (see point 4.2.3 of this report). The Economic and
Social Committee expressed the same view in its opinion dated 5 July 1995 on the
proposal for a Directive, as did the Council of the Bars and Law Societies of the
European Community (CCBE) on 17 November 1995.
The replacement of the aptitude test by a verification procedure for professional
qualifications is designed to make it easier for lawyers who have accumulated a certain
amount of experience but do not have time to prepare for the aptitude test to obtain the
professional title of the host country. It should also be noted that exemption from the
aptitude test as proposed by the Commission where lawyers can prove that they have
pursued an activity involving the law of the host Member State for at least three years
 was accepted by Parliament subject to a few amendments (amendment 24, concerning
 Article 10(1)).
2.       The following amendments will entail major changes: salaried practice to be
 aligned on Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective
 exercise by lawyers of freedom to provide services (amendments 22 and 23,
 concerning Article 8) and consolidation of the host Member State's powers to oppose
 groupings controlled by persons who are not members of the legal profession
 (amendment 27, concerning Article 11). The authorization of salaried practice except
 in the case of certain specified activities is in line with the wishes of ECLA (European
 Company Lawyers Association). The restrictions on multidisciplinary practice, which
 reflect the position adopted by the CCBE on 17 November 1995, are in keeping with
 the reservations raised by the Economic and Social Committee.
                                             2
 ---pagebreak--- 3.       The amendments that the Commission was unable to accept provided for the
inclusion of Dutch "procureurs" (amendment 28 ex. 7, concerning Article 1), the
exclusion of lawyers who have responsibilities within a government department
(amendment 9, Article 1), proof of honourability (amendment 12, concerning
Article 3(2)) and the obligation for the host Member State to exempt migrant lawyers
from the requirement to join its social security scheme (amendment 21, Article 6).
The Commission rejected these amendments for the following reasons. Dutch
 "procureurs" do not carry out the same duties as advocates. The exclusion of lawyers
with responsibilities within a government department is not necessary in order to
ensure that the specific procedures of supreme courts are complied with by virtue of
the possible requirement to work in conjunction with a lawyer who practises before the
judicial authority in question, as provided for in Article 5 of the proposal for a
Directive; furthermore, such exclusion would deprive those lawyers of the benefits of
the Directive and might lead to further requests for exclusion, for example for actions
before the social or tax courts. Proof that the party concerned meets the honour,
honourability and probity requirements associated with his duties seems
disproportionate in view of the safeguards already provided for in Article 3 (certificate
attesting to his registration), Article 7 (disciplinary proceedings) and Article 13
(cooperation between the competent authorities in the home and host Member States) of
the proposal for a Directive. Such proof is not required by Directive 77/249 to
facilitate the effective exercise by lawyers of freedom to provide services. As regards
the obligation for the host Member State to exempt lawyers from the requirement that
they join its social security scheme, it is contrary to Regulation (EEC) No 1408/71 of
the Council of 14 June 1971 on the application of social security schemes to employed
persons, self employed persons and their families moving within the Community,1 and
 in particular Articles 13 and 17 thereof. In addition, this Regulation, which is based
on Articles 51 and 235 of the EC Treaty, can be amended only unanimously, which
excludes it from the present competence of Parliament in the co-decision procedure.
3.       CONCLUSIONS
The amended proposal for a Directive takes account, in so far as possible, of the
concerns expressed by the European Parliament, the Economic and Social Committee
and the legal profession, represented by the CCBE.
The European Parliament and the Council are invited to adopt the amended proposal as
 set out below:
        A consolidated version was published in OJ No C 325, 10.12.1992.
                                                         3
 ---pagebreak---                                         Amended proposal for a
                   EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
                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
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 49,
Article 57(1) and the first and third sentences of Article 57(2) thereof,
Having regard to the proposal from the Commission1,
Having regard to the opinion of the Economic and Social Committee2.
Acting in accordance with the procedure referred to in Article 189b of the Treaty3
ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
                                                              (unchanged unless mentioned below)
1
   OJ NoC 128 of 24.5.95, p. 6
:
  OJ NoC 256 of 2.10.95. p. 14
-" Opinion of the European Parliament of 19 June 1996, OJ N° C
   Common position of the Council of .... 1996 (not yet published in the Official Journal)
   Decision of the European Parliament of ... (not yet published in the Official Journal)
 ---pagebreak--- (1)   Whereas, pursuant to Article 7a of the
     Treaty, the internal market is to
     comprise an area without internal
     frontiers;   whereas, pursuant to
     Article 3(c) of the Treaty, the
    abolition, as between Member States,
     of obstacles to freedom of movement
     for persons and services constitutes
    one of the objectives of the
    Community; whereas, for nationals of
    the Member States, this means among
    other things the possibility of
    practising a profession, whether in a
    self-employed or a salaried capacity,
     in a Member State other than that in
    which they obtained their professional
    qualifications;
(2) Whereas,      pursuant     to    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,4 a lawyer who is
    fully qualified in one Member State
    may already ask to have his diploma
    recognized with a view to establishing
    himself in another Member State in
    order to practise the profession of
    lawyer there under the professional
    title used in that State; whereas the
    objective of Directive 89/48/EEC is
    to ensure that a migrant lawyer is
    integrated into the profession in the
    host Member State, and the Directive
    seeks neither to modify the rules
    regulating the profession in that State
    nor to remove such a lawyer from the
    ambit of those rules;
    O J N o L 19, 24.1.1989, p. 16.
                                              5"
 ---pagebreak--- (3) Whereas while some migrant lawyers        (3) Whereas while some migrant lawyers may
    may become quickly integrated into        become quickly integrated into the profession
    the     profession      in   the    host  in the host Member State inter alia by passing
    Member State inter alia by passing an     an aptitude test as provided for in
    aptitude test as provided for in          Directive 89/48/EEC, others may envisage
    Directive 89/48/EEC, others may           such integration after a certain period of
    envisage such integration at the end of   professional practice in the host Member State
    a period of professional practice in the  under their home-country professional titles or
    host Member State under their             else continue to practise under their home-
    home-country professional titles;         country professional titles ;
(4) Whereas at the end of that period,        (4)Whereas at the end of that period the
    which may not be longer than five         migrant lawyer should be able to gain access
    years, the migrant lawyer should be       to the profession after verification that he
    able to gain access to the profession     possesses professional experience in the host
    either automatically, where he has        Member State;
    effectively practised the law of the
    host       Member State        including
    Community law for an unbroken
    period of three years, or, where that is
    not the case but where he can furnish
    evidence of professional experience in
    the      host    Member State,      after
    undergoing a compensatory measure
     in the form of a simplified aptitude
    test;
(5) Whereas action along these lines is       (5)Whereas action along these lines is justified at
    justified at Community level not only     Community level not only because, compared with
    because, compared with the general        the general system for the recognition of diplomas, it
     system for the recognition of            provides lawyers with an easier means whereby they
     diplomas, it provides lawyers with a     can integrate into the profession in a host
     new means whereby, after a transition    Member State, but also because, by enabling lawyers
     period, they can practise the            to practise temporarily under their home-country
     profession on a permanent basis in a     professional titles on a permanent basis in a host
     host Member State, but also because,     Member State, it meets the needs of consumers of
     by enabling lawyers to practise           legal services who, owing to the increasing trade
     temporarily under their home-country      flows resulting from the internal market, seek advice
     professional titles, it meets the needs  when carrying out cross-border transactions in which
     of consumers of legal services who,       international law, Community law and domestic
     owing to the increasing trade flows       laws often overlap;
     resulting from the internal market,
     seek advice when carrying out
     cross-border transactions in which
     international law, Community law and
     domestic laws often overlap;
 ---pagebreak--- (6) Whereas action is also justified at
    Community level because a few
    Member States already permit in their
    territory pursuit of the activities of
    lawyers, otherwise than by way of
    provision of services, by lawyers from
    other Member States practising under
    their home-country professional titles;
    whereas,       however,       in      the
    Member States where this possibility
    exists the practical details concerning,
    for example, the area of activity and
    the obligation to register with the
    competent         authorities      differ
    considerably; whereas such a diversity
    of situations leads to inequalities and
    distortions in competition between
    lawyers from the Member States and
    is an obstacle to freedom of
    movement; whereas only a directive
    laying down the conditions governing
    practice of the profession, otherwise
    than by way of provision of services,
    by lawyers practising under their
    home-country professional titles is
    capable of resolving these difficulties
    and of          affording the same
    opportunities      to    lawyers     and
    consumers of legal services in all
    Member States;
(7)  Whereas, in keeping with its
     objective, this Directive does not lay
     down any rules concerning purely
     domestic situations, and where it does
     affect national rules regulating the
     legal profession it does so no more
     than is necessary to achieve its
     purpose effectively; whereas it is
     without     prejudice     to    national
     legislation governing access to and
     practice of the profession of lawyer
     under the professional title used in the
     host Member State;
                                              \
 ---pagebreak--- (8)  Whereas lawyers covered by this
     Directive should be required to
    register with the competent authority
     in the host Member State in order that
    that authority might ensure that they
    abide by the rules of professional
    conduct in force in that State; whereas
    the effect of such registration as
    regards the jurisdictions in which, and
    the levels and types of court before
    which, lawyers may practise is
    determined by the law applicable to
    lawyers in the host Member State;
(9) Whereas lawyers who are not yet full
    integrated into the profession in the
    host Member State should practise in
    that State under their home-country
    professional titles so as to ensure that
    consumers are properly informed and
    to distinguish between such lawyers
    and      lawyers     from    the    host
    Member State practising under the
    professional title used there;
                                             9
 ---pagebreak--- (10)     Whereas lawyers covered by this
         Directive should be permitted to give
         advice on the law of their home
         Member States, on Community law,
         on international law and on the law of
         the host Member State; whereas this is
         already allowed under Council
         Directive 77/249/EEC of 22 March
         1977 to facilitate the effective exercise
         by lawyers of freedom to provide
         services5, as last amended by the Act
         of Accession of Austria, Finland and
         Sweden, as regards the provision of
         services; whereas, however, provision
         should        be      made,      as      in
         Directive 77/249/EEC, for the option
         of excluding from the activities of
         lawyers      practising     under     their
         home-country professional titles in the
         United Kingdom and Ireland the
         preparation       of    certain     formal
         documents in the conveyancing and
         probate      spheres;     whereas      this
         Directive in no way affects the
         provisions under which, in every
         Member State, certain activities are
         reserved for professions other than the
         legal      profession;    whereas       the
         provision in Directive 77/249/EEC
         concerning the right of the host
         Member State to require a lawyer
         practising under his home-country
         professional      title to work in
         conjunction with a local lawyer when
         representing or defending a client in
         legal proceedings should also be
         incorporated       in this      Directive;
         whereas that requirement must be
         interpreted in the light of the case law
         of the Court of Justice of the
         European Communities, in particular
          its judgment of 25 February 1998 in
         Case 427/85 Commission v Germany^;
(11)      Whereas the list of professional titles
         used in Italy must be extended to
          include procuratore legale, as such
          persons now carry on the same
          activities as an avvocato;
 5
    OJ No L 78, 26.3.1977, p.17.
6
   (1988)ECR, p. 1123.                               «
 ---pagebreak--- (12) Whereas a lawyer registered under his
     home-country professional title in the
     host Member State must remain
     registered     with the        competent
     authority in his home Member State if
     he is to retain his status of lawyer and
     be covered by this Directive; whereas
     for that reason close collaboration
     between the competent authorities is
     indispensable, notably in connection
     with any disciplinary proceedings;
(13) Whereas lawyers covered by this          (13) Whereas lawyers covered by this
     Directive may, irrespective of their     Directive may, as in Directive 77/249/EEC,
     status of salaried or self-employed      where they practise as salaried lawyers, be
     lawyers in their home Member States,     excluded from certain activities in the host
     practise as salaried lawyers in the host Member State where that Member State also
     Member State           where        that excludes its own lawyers from such activities;
     Member State offers this possibility to
     its own lawyers;
                                               \o
 ---pagebreak--- (14) Whereas the purpose pursued by this        (14) Whereas the purpose pursued by this Direc
     Directive in enabling lawyers to           Court of Justice the host Member State must
     practise temporarily in another            take into consideration any professional
     Member State          under         their  experience gained in its territory; whereas,
     home-country professional titles is to     after the effective pursuit in the host
     make it easier for them to practise the    Member State regularly for a period of
     profession without restriction in          three years of an activity involving the law of
     accordance with Directive 89/48/EEC;       that State including Community law, it is
     whereas under Articles 48 and 52 of        reasonable to assume that a lawyer will have
     the Treaty as interpreted by the Court     gained sufficient experience to become fully
     of Justice the host Member State must      integrated into the legal profession there;
     take      into   consideration       any   whereas at the end of that period the migrant
     professional experience gained in its      lawyer should be able to gain access to the
     territory; whereas, after the effective   profession where he can, after verification,
     pursuit in the host Member State for      furnish experience of professional experience
     an unbroken period of three years of       in the host Member State;
     an activity involving the law of that
     State including Community law, it is
     reasonable to assume that a lawyer
     will have gained sufficient experience
     to become fully integrated into the
     legal profession there; whereas total
     exemption from any compensatory
     measures       must     therefore     be
     automatically granted, whereas, if the
     unbroken period of activity in the host
     Member State does not involve the
     law of that          State,    including
     Community law, the compensation
     measures must be limited to an
     aptitude test on the law of procedure
     and the rules of professional conduct
     in the host Member State.
(15) Whereas lawyers practising under Deleted
     their home-country professional titles
     must be afforded the opportunity of
     attending lectures or seminars in the
     host Member State so that they might
     acquire a knowledge of that State's
     law, including the rules regulating
     professional practice and conduct, or
     add to their existing knowledge in
     those areas;
                                                 w
 ---pagebreak--- (16)  Whereas,      for     economic      and  (15)     Whereas,     for     economic      and
     professional reasons, there is a          professional reasons, there is a growing
     growing tendency for lawyers in the       tendency for lawyers in the Community to
     Community to practise jointly;            practise jointly; whereas the fact that lawyers
     whereas the fact that lawyers belong      belong to a grouping in their home
     to a grouping in their home               Member State should not be used as a pretext
     Member State should not be used as a      to prevent or deter them from establishing
     pretext to prevent or deter them from     themselves in the host Member State; whereas
     establishing themselves in the host       Member States should be allowed, however, to
     Member State;                    whereas  take appropriate measures with the legitimate
     Member States should be allowed,          aim of safeguarding the             profession's
     however, to take appropriate measures     independence; whereas certain guarantees
     with     the     legitimate    aim     of should be provided in those Member States
     safeguarding        the      profession's which permit joint practice ;
     independence;        whereas      certain
     guarantees should be provided in
     those Member States which permit
     joint practice ;
HAVE ADOPTED THIS DIRECTIVE:
 ---pagebreak--- Artkk I
Object, scope and definitions
        The purpose of this Directive is to
        facilitate practice of the profession of
         lawyer on a permanent basis in a
        self-employed or salaried capacity in a
        Member State other than that in which
        the professional qualification was
        obtained.
2.      For the purposes of this Directive :
       (a) "lawyer" means any person who is a
        national of a Member State and who is
        authorized to pursue his professional
        activities under one of the following
        professional titles:
        Belgium:                  Avocat
                                  Advocaat
                                  Rechtsanwalt
        Denmark:                  Advokat
        Germany:                  Rechtsanwalt
        Greece:                   ôtxrryoQoç
        Spain:                    Abogado         Spain:
                                                          Abogado/Advocat/Avogado/Abokatu
        France:                   Avocat
        Ireland:                  Barrister
                                  Solicitor
        Italy:                    Avvocato
                       Procuratore legale
        Luxembourg:               Avocat
        Netherlands:              Advocaat
                                                  Austria          Rechtsanwalt
        Portugal:                 Advogado
                                                   Finland,        Asianajaja/Advokat
                                                 \h
 ---pagebreak---                                                   Sweden            Advokat
     United Kingdom:           Advocate
                               Barrister
                               Solicitor.
(b)  "home Member State" means the
     Member State in which a lawyer
     acquired the right to use one of the
     professional titles referred to in (a)
     before practising the profession of
     lawyer in another Member State.
(c)  "host Member State" means the
     Member State in which a lawyer
     practises pursuant to this Directive.
(d)  "home-country professional           title"
     means the professional title used in
     the Member State in which a lawyer
     acquired the right to use that title
     before practising the profession of
     lawyer in the host Member State.
(e)  "grouping" means any entity, with or
    without legal personality, formed
    under the law of a Member State,
    within which lawyers pursue their
    professional activities jointly under a
    joint name.
                                                 (ea) "relevant professional title" or "relevant
                                                 profession" means the professional title or
                                                 profession governed by the competent
                                                 authority with whom a lawyer has registered
                                                 under Article 3, and "relevant competent
                                                 authority" means that authority.
                                                 H
 ---pagebreak---          This Directive shall apply both to
         lawyers practising in a self-employed
         capacity and to lawyers practising in a
         salaried capacity in the home
         Member State        and,  subject      to
         Article 8, in the host Member State.
         Practice of the profession of lawyer
         within the meaning of this Directive
         shall not include the provision of
         services, which is covered by
         Directive 77/249/EEC.
Article 2
Temporary right to practise          under     the  Right to practise under the home-country
home-country professional title                     professional title
         Any lawyer shall be entitled to pursue Any lawye» shall be entitled to pursue on a
         for    five years     in   any     other permanent basis in any other Member State
         Member State under his home-country under his home-country professional title the
         professional     title the     activities activities specified in Article 5. Integration
         specified in Article 5. Practice on a into the profession of lawyer in the host
         permanent      basis in the host Member State shall be subject to Article 10 .
         Member State shall be subject to
         Article 10 .
                                                   l^
 ---pagebreak---                     Article 3
   Registration with the competent authority
1.      A lawyer who wishes to practise in a       l.A lawyer who, wishes to practise in a
        Member State other than that in which     Member State other than that in which he
        he      obtained     his     professional obtained his professional qualification shall
        qualification shall register with the     register with the relevant competent authority in
        competent authority in that State.        that State.
        The competent authority in the host       2.The relevant competent authority in the host
        Member State shall register the lawyer    Member State shall register the lawyer upon
        upon presentation of a certificate        presentation of a certificate attesting to his
        attesting to his registration with the    registration with the relevant competent authority
        competent authority in the home           in the home Member State. It may require that,
        Member State. It may require that,        when presented, the certificate be not more than
        when presented, the certificate be not    three months old. It shall inform the relevant
        more than three months old. It shall      competent authority in the home Member State of
        inform the competent authority in the     the registration.
        home       Member State        of     the
        registration.
        For the purpose of applying
        paragraph 1 in the United Kingdom
        and Ireland, lawyers practising under a
        professional title other than those used
        in the United Kingdom or Ireland shall
        register either with the authority
        responsible for the profession of
        barrister or advocate or with the
        authority     responsible      for    the
        profession of solicitor.
                                                  IC
 ---pagebreak---    For the purpose of applying
   paragraph 1 in the United Kingdom,
   the authority responsible for a
   barrister from Ireland shall be that
   responsible for the profession of
   barrister or advocate, and the authority
   responsible for a solicitor from Ireland
   shall be that responsible for the
   profession of solicitor.
            For the purpose of applying
   paragraph 1 in Ireland, the authority
   responsible for a barrister or an
   advocate from the United Kingdom
   shall be that responsible for the
   profession of barrister, and the
   authority responsible for a solicitor
   from the United Kingdom shall be that
   responsible for the profession of
   solicitor.
4. Where the competent authority in a 4.Where the relevant competent authority in a
   host Member State publishes the host Member State publishes the names of
   names of lawyers registered with it, it lawyers registered with it, it shall also publish the
   shall also publish the names of names of lawyers registered pursuant to this
   lawyers registered pursuant to this Directive.
   Directive.
                                            \lr
 ---pagebreak--- Article 4
Temporarv practice under the home-countrv Practice under the home-country professional
professional title                                   title
         A lawyer practising in a host               1 .A lawyer practising in a host Member State
         Member State under his home-country         under his home-country professional title shall do
         professional title shall do so under that   so under that title, which must be expressed in the
         title expressed in the official language    official language or one of the official languages
         or one of the official languages of his     of his home Member State, in an intelligible
         home Member State.                          manner and in such a way as to avoid confusion
                                                     with the professional title of the host Member
                                                     State.
         A host Member State may require a           2.For the purpose of applying paragraph 1, a
         lawyer practising under his home-           host Member State may require a lawyer
         country professional title to indicate      practising      under     his     home-country
         the professional body of which he is a      professional title to indicate the professional
         member in his home Member State or          body of which he is a member in his home
         the judicial authority before which he      Member State or the judicial authority before
         is entitled to practise pursuant to the     which he is entitled to practise pursuant to the
         laws of his home Member State. A            laws of his home Member State. A host
         host Member State may also require a        Member State may also require a lawyer
         lawyer      practising      under     his   practising      under      his    home-country
         home-country professional title to          professional title to include a reference to his
         include a reference to his registration     registration with the competent authority in
         with the competent authority in that        that State.
         State.
         Where there is a risk of confusion Deleted
         with the professional title used in the
         host Member State, the competent
         authorities in that State may ask that a
         reference to the home Member State
         be added.
                                                   itf
 ---pagebreak--- Article 5
Area of activity
1.       Subject to paragraphs 2 and 3, a            1.Subject to paragraphs 2 and 3, a lawyer
         lawyer       practising     under     his   practising under his home-country professional
         home-country professional title shall       title shall carry on the same professional
         carry on the same professional              activities as a lawyer practising under the
         activities as a lawyer practising under     relevant professional title used in the host
         the professional title used in the host     Member State and may inter alia give advice on
         Member State and may inter alia give        the law of his home Member State, on
         advice on the law of his home               Community law, on international law and on the
         Member State, on Community law, on          law of the host Member State.
         international law and on the law of the
         host Member State.
         Member States which authorize in            2.Member States which authorize in their
         their territory a prescribed category of    territory a prescribed category of lawyers to
         lawyers to prepare formal documents         prepare deeds for obtaining title to administer
         for obtaining title to administer estates   estates of deceased persons and for creating or
         of deceased persons and for creating        transferring interests in land which, in other
         or transferring interests in land which,    Member States, are reserved for professions other
         in other Member States, are reserved        than that of lawyer may exclude from such
         for professions other than that of          activities     lawyers     practising     under      a
         lawyer may exclude from such                home-country professional title conferred in one
         activities lawyers practising under a       of the latter Member States.
         home-country         professional    title
         conferred in one of the latter
         Member States.
         For the pursuit of activities relating to 3.         For the pursuit of activities relating to the
         the representation or defence of a                   representation or defence of a client in
         client in legal proceedings and in so                legal proceedings and in so far as the law
         far as the law of the host                           of the host Member State reserves such
         Member State makes representation                    activities to lawyers practising under the
         by a lawyer mandatory, that                          professional title of that State, the latter
         Member State may require lawyers                     may require lawyers practising under
         practising under their home-country                  their home-country professional titles to
         professional titles to work in                       work in conjunction with a lawyer who
         conjunction with a lawyer who                        practises before the judicial authority in
         practises before the judicial authority              question and who would, where
          in question and who would, where                     necessary, be answerable to that authority
          necessary, be answerable to that                     or with an "avoué" or "procuratore"
          authority or with an "avoué" or                      practising before it.
          "procuratore" practising before it.
                                                    \°v
 ---pagebreak--- Article 6
Rules of professional conduct applicable
1.       Irrespective     of   the    rules   of   1 .Irrespective of the rules of professional conduct
        professional conduct to which he is       to which he is subject in his home Member State,
         subject in his home Member State, a      a lawyer practising under his home-country
         lawyer practising under his home-        professional title shall be subject to the same
        country professional title shall be       rules of professional conduct as lawyers
        subject to the rules of professional     practising under the relevant professional title of
        conduct of the host Member State in       the host Member State in respect of all the
        respect of all the activities he pursues  activities he pursues in its territory.
        in its territory.
2.      Lawyers practising under their home-
        country professional titles shall be
        granted appropriate representation in
        the professional associations of the
        host       Member State.            Such
        representation shall involve at least
        the right to vote in elections to those
        associations' governing bodies.
                                                2o
 ---pagebreak--- The host Member State may require a
lawyer practising under his home-
country professional title either to take
out professional indemnity insurance
or to become a member of a
professional    guarantee fund in
accordance with the rules which that
State lays down for professional
activities pursued in its territory.
Nevertheless, a lawyer practising
under his home-country professional
title shall be exempted from that
requirement if he can prove that he is
covered by insurance taken out or a
guarantee provided in accordance with
the rules of his home Member State,
in so far as such insurance or
guarantee is equivalent in terms of the
conditions and extent of cover. Where
the equivalence is only partial, the
competent authority in the host
Member State may require that
additional insurance or an additional
guarantee be contracted to cover the
elements which are not already
covered by the insurance ors guarantee
contracted in accordance with the
rules of the home Member State.
                                          l\
 ---pagebreak---                Article 7
      Disciplinary proceedings
   In the event of failure by a lawyer
   practising under his home-country
   professional title to fulfil the
   obligations in force in the host
   Member State, the rules of procedure,
   penalties and remedies provided for in
   the host Member State shall apply.
   Before        initiating      disciplinary
   proceedings against a lawyer, the
   competent authority in the host
   Member State shall inform the
   competent authority in the home
   Member State as soon as possible,
   furnishing it with all the relevant
   details.
3. Without prejudice to the decision-
   making power of the competent
   authority in the host Member State,
   that     authority      shall   cooperate
   throughout          the       disciplinary
   proceedings with the competent
   authority in the home Member State.
   In particular, the host Member State
   shall take the measures necessary to
   ensure that the competent authority in
   the home Member State can make
   submissions to the bodies responsible
   for hearing any appeal.
4. The competent authority in the home
   Member State shall decide what action
   to take, under its own procedural and
   substantive rules, in the light of a
   decision of the competent authority in
   the host Member State concerning a
   lawyer practising under his home-
   country professional title.
                                              1-L
 ---pagebreak--- 5. Although it is not a prerequisite for
   the decision of the competent
   authority in the host Member State,
   the     temporary     or     permanent
   withdrawal by the competent authority
   in the home Member State of the
   authorization     to    practise   the
   profession shall automatically lead to
   the     lawyer     concerned     being
   temporarily or permanently prohibited
   from practising under his home-
   country professional title in the host
   Member State.
                                          *) n
 ---pagebreak--- Article 8
Salaried practice
         A lawyer registered in a host             A lawyer registered in a host Member State
         Member State under his home-               under his home-country professional title may
         country professional title may practise   practise as a salaried lawyer in the employ of
         as a salaried lawyer in the employ of     another lawyer, an association or firm of
         another lawyer, an association or firm     lawyers, or a public or private enterprise.
         of lawyers, or a public or private
         enterprise      where      the      host
         Member State so permits for lawyers
         registered under the professional title
         used in that State.
                                                   Any Member State may exclude salaried
                                                   lawyers in the employ of a public or private
                                                   enterprise from pursuing the activity of
                                                   representation      or     defence      in   the
                                                   administration of justice for that enterprise, if
                                                   lawyers established in the host Member State
                                                   are not authorised to pursue that activity.
                     Article 9
       Statement of reasons and remedies
          Decisions not to effect the registration
          referred to in Article 3 or to cancel
          such registration and decisions
          imposing disciplinary measures shall
         state the reasons on which they are
          based.
          A remedy shall be available against
          such decisions before a court or
         tribunal in accordance with the
          provisions of national law.
                                                   *Y
 ---pagebreak--- Article 10
Integration as      a    lawyer   of  the    home
Member State
         A lawyer practising under his 1.                    A lawyer practising under his
         home-country professional title who                 home-country professional title who
         has effectively pursued for an                      has effectively pursued regularly for a
         unbroken period of at least three years             period of at least three years an
         an activity involving thé law of the                activity involving the law of the host
         host       Member State        including            Member State including Community
         Community law shall, with a view to                 law shall, with a view to his gaining
         his gaining admission to the                        admission to the profession of lawyer
         profession of lawyer in the host                    in the host Member State and
         Member State and practising there                   practising there under the professional
         under       the     professional     title          title corresponding to the profession in
         corresponding to the profession in that             that State, be exempted from the
         State, be exempted from any aptitude                conditions set out in Article 4(1 )(b) of
         test which may be required under                    Directive 89/48/EEC.
         Article      4(1 )(b)    of      Directive
         89/48/EEC.
         It shall be for the lawyer concerned to    It shall be for the lawyer concerned to furnish
         furnish proof of such effective pursuit    proof of such effective pursuit regularly for a
         for an unbroken period of at least         period of at least three years of an activity
         three years of an activity involving the   involving the law of the host Member State.
         law of the host Member State. To that      To that end, he shall provide the relevant
         end, he shall provide the competent        competent authority in the host Member State
         authority in the host Member State         with      any     relevant    information     and
         with any relevant information and           documentation, notably on the number of
         documentation, notably on the number        cases he has dealt with and their nature.
         of cases he has dealt with and their        "Effective and regular pursuit " means actual
         nature.      "Effective pursuit for an      exercise of the activity without any
          unbroken period" means actual              interruption other than that resulting from the.
          exercise of the activity without any       events of everyday life.
          interruption other than that resulting
          from the events of everyday life.
                                                   2^
 ---pagebreak--- A lawyer practising under his home-          2.A lawyer practising under his home-country
country professional title who has           professional title in a host Member State may, at
effectively pursued for an unbroken          any time, apply to have his diploma recognized in
period of at least three years a             accordance with Directive 89/48/EEC with a
professional activity in the host            view to gaining admission to the profession of
Member State may be required, in             lawyer in the host Member State and practising it
accordance with Article 4(1 )(b) of          under the professional title corresponding to the
Directive 89/48/EEC only to take an         profession in that Member State.
aptitude test limited to the law of
procedure      and     the    rules     of
professional conduct of the host
Member State.
A lawyer practising under his                3. A lawyer practising under his home-country
home-country professional title may          professional title, who has effectively and
apply at any time during the five-year       regularly pursued a professional activity in the host
period referred to in Article 2 to have      Member State for a period of at least three years
his diploma recognized pursuant to           may obtain from the relevant competent authority
Directive 89/48/EEC with a view to           of that State admission to the profession of lawyer
gaining permanent admission to the           in the host Member State and the right to practise
profession of lawyer in the host             it under the professional title corresponding to the
Member State and practising it under        profession in that host Member State, under the
the professional title used in that State.   conditions and in accordance with the procedures
                                             set out below :
                                             (a) The relevant competent authority shall take into
                                             account the effective and regular professional
                                             activity pursued during the abovementioned period
                                             and any knowledge and professional experience of
                                             the law of the host Member State, and any
                                             attendance at lectures or seminars on the law of
                                             the host Member State, including the rules
                                             regulating professional practice and conduct.
                                             (b) The applicant shall provide the relevant
                                             competent authority with any relevant information
                                             and documentation, notably on the cases he has
                                             dealt with. The competent authority of the host
                                             Member State may, in order to verify the
                                             information provided, require the applicant to
                                             undergo an interview.
When it examines an application, the         4. The relevant competent authority of the host
competent authority shall take into          Member State may, by reasoned decision
account any attendance by the                subject to appeal under national law, refuse to
applicant at lectures or seminars on         allow the applicant the benefit of these
the law of the host Member State,            provisions, if it considers that this would not
including     the     rules    regulating    be in the public interest, notably because of
professional practice and conduct.           disciplinary proceedings,        complaints or
                                              incidents of any kind.
                                          JUL.
 ---pagebreak--- The representatives of the competent 5.The representatives of the relevant competent
authority      entrusted      with    the authority entrusted with consideration of the
examination      shall preserve the application shall preserve the confidentiality of
confidentiality of any information any information received.
received.
A lawyer who gains admission to the        6.A lawyer who gains admission to the profession
profession of lawyer in the host           of lawyer in the host Member State in accordance
Member State in accordance with            with the above paragraphs shall be entitled to use
paragraphs 1 to 5 shall be entitled to     his home-country professional title, expressed in
use his home-country professional          the official language or one of the official
title, expressed in the official language  languages of his home country, alongside the
or one of the official languages of his    professional title corresponding to the profession
home       country,     alongside     the  of lawyer in the host Member State.
professional title used in the host
Member State.
                                          2*
 ---pagebreak--- Article 11
Joint practice
Where joint practice is permitted in the host Where joint practice is authorized in respect
Member State, it must take place in of lawyers carrying on their activities under
accordance with the following rules.                the relevant professional title in the host
                                                    Member State, the following provisions shall
                                                    apply in respect of lawyers wishing to carry
                                                    on activities under that title or registering
                                                    with the relevant competent authority in
                                                    respect of that title.
1)       One or more lawyers who belong to
         the same grouping in their home
         Member State and who practise under
         their home-country professional title
         in a host Member State may pursue
         their professional activities in a branch
         or agency of their grouping in the host
         Member State. However, where the
         fundamental rules governing that
         grouping in the home Member State
         are incompatible with the fundamental
         rules laid down by law, regulation or
         administrative action in the host
         Member State, the latter rules shall
         prevail in so far as compliance
         therewith is justified by the public
         interest in protecting clients and third
         parties.
                                                   2K
 ---pagebreak--- 2) Each Member State shall afford two or
   more lawyers from the same grouping
   or the same home Member State who
   practise in its territory under their
   home-country         professional  titles
   access to a form of joint practice. If
   the host Member State gives its
   lawyers a choice between several legal
   forms in which to practise, those same
   legal forms shall also be made
   available to the aforementioned
   lawyers. The manner in which such
   lawyers practise jointly in the host
   Member State shall be governed by
   the       laws,       regulations    and
   administrative provisions of that State.
3) The host Member State shall take the
   measures necessary to permit joint
   practice also between :
   (a) several lawyers from different
        Member States practising under
        their home-country professional
        titles;
   (b) one or more lawyers covered by
        point (a)       and one or more
        lawyers       from-      the   host
        Member State.
   The manner in which such lawyers
   practise     jointly     in    the  host
   Member State shall be governed by
   the       laws,       regulations    and
   administrative provisions of that State.
4) A lawyer who wishes to practise under
   his home-country professional title
   shall inform the competent authority
   in the host Member State of the fact
   that he is a member of a grouping in
   this home Member State and furnish
   any relevant information on that
   grouping.
                                             i°\
 ---pagebreak--- 5)      Notwithstanding points 1-4, a host 5)          Notwithstanding points 1-4, a host
        Member State         which      prohibits      Member State         which       prohibits
        practice of the profession of lawyer           practice of the profession of lawyer
        within a grouping controlled by                within a grouping controlled by
        persons who are not members of the             persons who are not members of the
        profession may refuse to allow a               profession may refuse to allow a
        lawyer      registered      under     his      lawyer       registered     under      his
        home-country professional title to             home-country professional title to
        practise in its territory in his capacity      practise in its territory in his capacity
        as a member of his grouping if the             as a member of his grouping if the
        decision-making power in that                  capital of the grouping is held, the
        grouping is exercised preponderantly           name under which it practises is used,
        by persons who do not have the status          or the decision-making power in that
        of lawyer.                                     grouping is exercised, de facto or de
                                                      jure, by persons who do not have the
                                                       status of lawyer within the meaning of
                                                       Article 1(2) of this Directive.
                                                                Where the fundamental rules
                                                       governing a grouping of lawyers in
                                                       the home Member State                 are
                                                       incompatible with the rules in force in
                                                       the host Member State or. with the
                                                      provisions of the first subparagraph of
                                                       this point, the host Member State may
                                                       oppose the opening of a branch or
                                                       agency within its territory without the
                                                       restrictions laid down in Article 11(1).
Article 12
Name of the grouping
Whatever the manner in which lawyers
practise under their home-country professional
titles in the host Member State, they may
employ the name of any grouping to which
they belong in their home Member State. The
host Member State may require that, in
addition to that name, mention be made of the
legal form of the grouping in the home
Member State and/or of the names of any
members of the grouping practising in the host
Member State.
                                                  2>o
 ---pagebreak--- Article 13
Cooperation      between    the      competent
authorities
in the home and host Member States
In order to facilitate the application of this
Directive and to prevent its provisions from
being misapplied for the sole purpose of
circumventing the rules applicable in the host
Member State, the competent authority in the
host Member State and the competent
authority in the home Member State shall
collaborate closely and afford each other
mutual assistance. They shall preserve the
confidentiality of the information they
exchange.
Article 14
 Designation of the competent authorities
 Member States shall designate, within the
 period provided for in Article 15, the
 competent authorities empowered to receive
 the applications and to take the decisions
 referred to in this Directive. They shall
 communicate this information to the other
 Member States and to the Commission.
                                               %\
 ---pagebreak--- Article 15
Implementation
         Member States shall bring into force        Member States shall-bring into force
        the      laws,      regulations      and     the      laws,    regulations     and
         administrative provisions necessary to      administrative provisions necessary to
         comply with this Directive by 31            comply with this Directive by 31
         December      1996.       They shall        December 1997.           They shall
         immediately inform the Commission           immediately inform the Commission
        thereof.                                     thereof.
         When Member States adopt these
         provisions, these shall contain a
         reference to this Directive or shall be
         accompanied by such reference at the
        time of their official publication. The
         procedure for such reference shall be
         adopted by Member States.
2.       Member States shall communicate to
        the Commission the texts of the main
        provisions of national law which they
         adopt in the field covered by this
        Directive.
                                                 32-
 ---pagebreak--- J Article 16
  Entry into force
  This Directive shall enter into force on the
  twentieth day following that of its publication
  in the Official Journal of the European
  Communities.
  Article 17
  Addressees
  This Directive      is   addressed    to    the
  Member States
  Done at Brussels,
   For the European Parliament For the Council
  The President The President
                                                  3>i
 ---pagebreak---  ---pagebreak---                                                                   ISSN 0254-1475
                                                           COM(96) 446 final
                                              DOCUMENTS
EN                                                                           10
                                    Catalogue number : CB-CO-96-454-EN-C
                                                             ISBN 92-78-08793-9
Office for Official Publications of the European Communities
L-2985 Luxembourg
                                                *Y