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

A. Treaty Provisions and Legislative Measures

1. Initial Developments

• 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

• Profession-by-profession harmonization approach (health professions, architects)
• Harmonize minimum educational requirements
• Require mutual recognition of higher education diplomas
• Diploma 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
• 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?