EUROPEAN UNION LAW
W.B. Fisch, Winter 2006
Assignment #25

Ch. 18. RIGHTS OF PRACTICE FOR LAWYERS AND OTHER PROFESSIONALS

A. Treaty Provisions and Legislative Measures

1. Initial Developments

REYNERS V. BELGIUM, p. 714 (1974). Citizenship requirement for admission to Belgian bar (avocat).

  • Does ex art. 52 have direct effect?
    • Has the transitional period ended?
    • Is the duty to eliminate nationality-based discrimination in respect of the right of establishment sufficiently precise and unconditional to be directly applicable?
  • How close is the parallel between Griffiths, n. 1 p. 715 (U.S. 1973) and Reyners?

 
2. Legislative Action

Implementing Directives, pp. 715 f. (1975 f.)

  • Profession-by-profession harmonization approach (health professions, architects)
    • Harmonize minimum educational requirements
    • Require mutual recognition of higher education diplomas
  • Diploma recognition directive DocSupp. 433 (1989): generalized mutual recognition approach
    • Mutual recognition of diplomas representing at least 3 years' training (art. 3)
    • Permissible additional requirements (art. 4)
      • difference in preparation, or in the scope of the profession's services:
      • test or transition period may be required to bridge the gap
    •  narrow definition of scope of particular profession (MacQuen, n. 4 p. 718 (2001), and language requirements (Haim, n. 5 p. 718 (2000)): proportionality
    • Aptitude tests for lawyers: COMMISSION V. ITALY, Supp p 179 (2002): is the Italian test discriminatory, by comparison with the tests which domestic lawyers are required to take?  Is it impermissible to vary the content of the aptitude test for other-MS applicants, according to unspecified criteria?
  • KRAUS V. LAND BADEN-WÜRTTEMBERG, p. 719 (1993). Special authorization requirement for use of foreign university degree title, with substantial fee.
    • Is the degree required for exercise of the profession?
    • Is it advantageous for the exercise of the profession?
    • Does the authorization requirement serve an important public interest?
    • Is it proportional to that interest?
    • Is it discriminatory against foreign degrees?

 

B. Lawyers' Right to Provide Services

 

  • Lawyers' Services Directive, DocSupp p. 443 (1977).
    • Home-country title must be used
    • Notarial services may be excluded
    • For forensic services: association with local lawyer may be required
    • Cumulative application of Home- and host-state rules of professional conduct 
  • COMMISSION V. GERMANY, p. 722 (1988). May the host MS, for forensic services by other-MS lawyer, require association with a local lawyer who will be lead counsel?
    • 1977 directive permits requiring local lawyer who is, "where necessary, answerable to [the] judicial authority [before which the services are rendered]".
    • Is giving the local lawyer primary responsibility necessary to assure that the other-MS lawyer will provide adequate service?
    • Is it relevant that the host state imposes such requirements on a host-state lawyer who is admitted in another judicial district?
  • GEBHARD V. CONSIGLIO DELL'ORDINE, p. 724 (1995). German lawyer, resident in Italy and practicing as a "collaborator" (associate) of Italian lawyers, defends against UAP charge.
    • How are "establishment" and "providing services" distinguished in the Treaty?
      • By the use of physical premises within the MS?
      • By whether the provider is a member of the host-state professional organization?
      • By the nature and duration of the activities involved?
    • Is Gebhard pursuing a professional activity in Italy "on a stable and continuous basis"? 
  • BIRBROWER, et al. v. SUPERIOR COURT, p. 727 (Cal. 1998): how does this ruling compare?

C. Lawyers' Right of Establishment

1. Liberal Case Law on the Application of Practice Rights  

  • REYNERS p. 731 (1974). "Public authority" exception (ex art. 55), claimed for Belgian avocat. Does it work? 
  • THIEFFRY V. CONSEIL DE L'ORDRE, p. 732 (1977). Where the host state's competent authority has recognized a foreign law degree as educationally equivalent to its own, can a host-state law degree nonetheless be required for admission to the bar? 
  • ORDRE DES AVOCATS V. KLOPP, p. 733 (1984). May a German lawyer who also qualifies as a French lawyer be forbidden to establish an office in France, by rules which forbid French lawyers to have offices outside the Court of Appeals region in which they are admitted? 
  • GEBHARD, p. 724 (facts) and p. 735 (discussion of right-of-establishment issue) (1995). May the host state require local qualification as a condition of using the host-state title for the profession in question (here "avvocato") rather than the home-state title (here "Rechtsanwalt")? Cassis de Dijon/German Insurance rule applied to establishment!

 

2. Directive 98/5 EC of 16 February 1998 (Supp. p. 446)

  • Title:
    • only the home-state professional title, in home-state language, may be used (art. 2)
    • Must be clearly distinguished from host-state title, for consumer protection (art. 4)
  • Scope of practice (art. 5)
    • Advice: home-state law, Community law, international law, host-state law
    • Notarial practice: host state may exclude lawyers not locally qualified, where they reserve these services to a separate profession or category of lawyers
    • Forensic representation:
      • May require association of locally-qualified lawyer for regular courts
      • May reserve representation in highest courts to locally-qualified lawyers
  • Transition to local admission: 3 years' "effective and regular pursuit" in host st. (art. 10) 
  • LUXEMBOURG V. PARLIAMENT AND COUNCIL, p. 739 (2000). Is the 1998 Directive valid? On what grounds of EU law is the challenge based?