The Council of Bars and Law Societies of Europe (CCBE) believes that the current EU system for the lawyers’ market allows for an easy cross-border mobility for lawyers, notwithstanding the wide diversity of legal systems among the Member States.
The EU Directives specifically applicable to lawyers — i.e. Directive 77/249 on provision of Services and Directive 98/5 on establishment (the Lawyers’ Directives) — are under evaluation by the European Commission.
On September 12, 2014, the CCBE issued its position regarding the Lawyers’ Directives:
“current practice shows that the combination of the Lawyers’ Directives provides a model of a liberalised market for professional services in the EU. The system which has been created is simple, non-bureaucratic and very liberal and has led to easy cross-border mobility for lawyers, notwithstanding the wide diversity of legal systems among the Member States.
With these two Directives, lawyers have reached a level of free movement for the legal profession within the European Union which is, as yet, inconceivable in other parts of the world, even in the framework of federal structures (e.g. the USA). Cross-border free movement of lawyers in the European Union is a model and a goal for many lawyers outside the European Union. This specific regime is also far in advance of the structures which exist for other liberal professions in the EU”.
The CCBE deems that no amendment is needed on the following issues:
- Registration of EU lawyers (Article 3 Directive 98/5) – however, “the use of the CCBE card for registration purposes is not yet feasible”
- Double deontology. Freedom of establishment (Article 6.1, Directive 98/5) should be interpreted as follows:
- “A lawyer practising under his/her home Member State professional title remains subject to the rules of professional conduct of his/her home State only to the extent that these do not conflict expressly or impliedly with the rules of professional conduct of the host State. In case of conflict between rules of conduct, host State rules override home State rules”.
- Right to represent clients “out of court” (Article 4.4 of Directive 77/249) is also granted by current legislation.
- Salaried practices (Article 8 Directive 98/5) should be interpreted as follows: “Article 8 gives the right to a lawyer practising in a host Member State under his home Member State professional title to have access to the forms of salaried practice available to lawyers of the host State, irrespective of any restrictions on salaried practice applicable in the Member State from which he comes. However when practising in his/her home State, the employed lawyer remains subject to all restrictions on salaried practice applicable to lawyers in his/her home State, including, if applicable, the prohibition to represent or assist, in his/her home Member State, a client who employs him/her”.
- Lawyers’ integration in host Member States (Article 10 of Directive 98/5). Even if generally carried out through an aptitude test within the framework of the Professional Qualifications Directive, rather than the integration procedures under Article 10 of Directive 98/5, the CCBE sees no evidence that the provision creates obstacles to integration;
- Legal form requirements. The CCBE deems that “application of Article 11.1 of Directive 98/5 respecting primary law and ECJ case law do allow for compliance with home Member State company law as well as compliance with host Member State’s fundamental rules governing the carrying on of the legal profession in that State”.
- Non-Lawyer shareholding/management (Article 11 (5) Directive 98/5) of law firms. The CCBE acknowledges that “the investment of third party capital (equity) in law firms, and certainly a majority interest, may constitute a severe danger to the proper practice of the legal profession and thus to the sound administration of justice, as well as citizens’ access to justice”. However, it concludes that “there is no need to amend Article 11.5 of Directive 98/5 because, in light of EU primary law and the ECJ case law, the exercise of the possibility provided by this provision for Member States to refuse the right of establishment is subject to a proportionality test, on the basis of a case by case evaluation”.
- Scope of Lawyers’ Directives. According to the CCBE, joint practice/groupings and individual lawyers are implemented correctly under “EU primary law and the ECJ’s case law.”
The CCBE concludes:
“All issues identified by Maastricht University/Panteia study can be resolved by alternative solutions i.e. common interpretation and proper implementation of the Directives, in light of EU primary law and case law of the EU Court of Justice.
Opening the Lawyers’ Directives to possible changes intrinsically creates a risk of weakening the existing well balance framework which took several years to achieve.
The Lawyers’ Directives are the pillars of Free Movement of Lawyers in Europe and should be preserved.
As mentioned by the Commission itself during the conference ‘A Single Market for Lawyers: valuing achievements, tackling remaining challenges’ in October 2013, the Lawyers’ Directives are a success story and a unique regime without any equivalent and the way to tackle the remaining issues does not necessarily need to be through a legislative process”.
The CCBE Position is available at http://www.ccbe…
For information: Francesca Giannoni-Crystal