Lawyers in the European Community

Directorate-General For Translation European Commission

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Freedom of establishment and freedom to provide services

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• Publié par: EUROPEAN-COMMISSION
• Nombre de lectures: 14
• Langue: English
• Poids de l'ouvrage: 4 Mo

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european perspectives
Commission of the European Communities
LAWYERS IN THE
EUROPEAN COMMUNITY COMMISSION OF THE EUROPEAN COMMUNITIES
Lawyers
in the European Community
from the French original
by Serge-Pierre LAGUETTE
Avocat à la Cour
updated
for this English language version
in collaboration with
Patrick LATHAM, MA (Oxon), LL Β
Solicitor of the Supreme Court
of Judicature of England and Wales,
and a member of the EC Commission's staff
Foreword by John D. COOKE
THE EUROPEAN PERSPECTIVES SERIES
BRUSSELS The views expressed in this publication, which is intended as a contribution to public debate on the
subject of lawyers in the European Community, are those of the author and not necessarily those of
the Commission of then Communities.
Cataloguing data appear at the end of this publication.
Luxembourg: Office for Official Publications of the European Communities, 1987
ISBN 92-825-6978-0
Catalogue number: CB-48-87-290-EN-C
© ECSC-EEC-EAEC, Brussels > Luxembourg, 1987
Printed in Belgium Foreword
It was on 3 December 1960 that the leaders of the Bars in the Community's Member
States first came together in Brussels to establish the Commission consultative des
barreaux de la Communauté européenne and to discuss what the legal profession was
going to do about the newly-created Community. As Serge-Pierre Laguette and Patrick
Latham show in this invaluable expanded edition of their work on the profession in
Europe and as the minutes of the meetings of the CCBE at the time eloquently testify,
there followed over ten years during which the profession was preoccupied with the
implications of Article 55 of the Treaty and the inviting proposition that, perhaps,
lawyers had been exempted en bloc from the European Communities. Until 1974 and the
decision of the European Court of Justice in the Reyners case, Article 55 was seen by
some of the Bars as an obstacle to access to the benefits of the Treaty. It was seen by
others, with equal conviction, as the solution to the complications created for the
profession by the Treaty through the simple device of excluding lawyers from its applica­
tion and the need to adapt the profession to its effects.
With the benefit of the decisions in Reyners, Van Binsbergen, Thieffry and Klopp, it is
perhaps tempting to look back with some element of surprise or amusement at these early
debates. So much progress has been made in the interval: the 1977 directive on lawyers'
services has come into operation and the sky has not fallen. The demand for cross-
frontier legal services continues to grow and is answered by the opening of new offices
making foreign legal services readily available in various centres and by the creation of
groups of lawyers of different disciplines practising in association.
This very progress, however, itself creates a new urgency in seeking a solution to the
major outstanding issue which faces the legal profession in the application of the Treaty.
In spite of concerted debate and negotiation between the Bars, and notwithstanding
considerable compromise and agreement on many issues, no complete formula for the
exercise of the right of establishment has yet been found. Indeed, the same fundamental
uncertainty underlies this debate as in the debate on Article 55. What does 'establishment'
really mean in the context of the legal profession? Does it mean that a lawyer from one
Member State is entitled to set up practice in another but only according to his original
qualification, subject to the rules and discipline of his home Bar organization and with no
necessary access to local national courts? Or, on the other hand, does it mean that he
must become fully assimilated to the role and activities of the local lawyer with a
consequent obligation to become competent in its distinct activities, legal system and ethical rules? Can he be obliged to register locally as a lawyer and submit himself to a
second code of professional conduct? In effect, the exercise of the right of establishment
involves an answer to the very basic question as to whether there is such a thing as a single
legal profession in Europe rather than a multiplicity of different professions linked to the
different legal systems of the Member States?
Finding a solution to this problem is a matter of urgency because the life of the
Community does not stand still and wait while lawyers put their own house in order. As
freedom of movement for the citizens of the Community and the removal of barriers to
inter-State trade in goods and services have become the norm of European life, they have
brought with them a demand for the ready availability of legal advice and assistance in
the laws of each Member State throughout the territory of the Community. It is one of
the clear purposes and benefits of the Community regime that the French trader who
exports to Denmark should be able to obtain advice and assistance on Danish law in
France if there are Danish lawyers willing to provide it for him there. It is equally clear as
a fact of economic life that where such a demand grows, there will be lawyers willing to
satisfy that demand. This process is, indeed, already under way in many places for some
considerable time.
But it is equally clear that it is in the public interest and to the benefit of the administra­
tion of justice that such developments should not take place in a regulatory vacuum. So
that both lawyers and their clients would know where they stand it is a matter of
considerable urgency that the basis upon which the right of establishment may be
exercised should be defined by a directive and the necessary coordination between the
disciplinary authorities of the Bars given a sound legislative basis.
It is most opportune, therefore, that Serge-Pierre Laguette and Patrick Latham have been
able to produce the new edition of this important work at this point. Both in its wealth of
detailed information upon the organization and structure of the legal profession through­
out the Community and in its thoughtful analysis of the stages of application of the
Treaty to the profession, this work constitutes a major contribution to an understanding
of the issues in the debate. It will be of great advantage to all of those who are concerned
in finding a solution to these problems and will be a work for which all lawyers in the
Community will owe an immense debt of gratitude to the authors for many years to
come.
John D. Cooke
President,
Commission consultative des
barreaux de la Communauté européenne
31 December 1986 Preface to the English language edition
This book began as a translation from the French of Maître Serge-Pierre Laguette's 'Les
avocats dans les neuf États membres de la Communauté européenne', published in 1978
by Éditions A PIL, Versailles.
Part One has been expanded, amongst other things by including Greece. Part Two has
been entirely recast by Maître Laguette, with some slight contribution from Patrick
Latham.
In due time a second edition in the English language would be more complete:
(i) by covering Portugal and Spain, which have been omitted from this edition because
of the difficulty of coordinating the editorial work involved in preparing a book of
this kind - but not for other reasons;
(ii) by dealing with notaries;
(Hi) by including an index.
We are grateful to the many lawyers, linguists and others who have contributed to the
production of the present text, which we trust will prove both useful and interesting.
Patrick Latham
Serge-Pierre Laguette
Brussels, 31 December 1986 Contents
Introduction 11
PART ONE - THE LAW AND PRACTICE OF THE PROFESSION IN 10 MEMBER STATES
OF THE EUROPEAN COMMUNITY
Chapter 1 - The conditions governing admission to the profession 17
(a) Historical development of the laws now applicable7
Belgium 17
Denmark8
Federal Republic of Germany8
France9
Greece 20
Ireland0
Italy1
Luxembourg2
The Netherlands2
United Kingdom2
— England and Wales3
— Scotland 30
— Northern Ireland1
(b) Nationality2
Belgium2
Denmark3
Federal Republic of Germany4
France4
Greece5
Ireland5
Italy5
The Netherlands5
United Kingdom 36
— England and Wales6
— Scotland6
— Northern Ireland6
(c) Age6
(d) Professional qualifications6
Belgium8
Denmark 40
Federal Republic of Germany 41
France3
Greece7
Ireland9
Italy 52
Luxembourg3 The Netherlands 56
United Kingdom8
— England and Wales
— Scotland 64
— Northern Ireland5
(e) Control over entry to the profession
— The purpose of the control
— Who applies the control and at what stage of training 67
— The procedure for admission to the profession9
— How far does the control extend? 72
Belgium 7
Denmark3
Federal Republic of Germany
France
Greece4
Ireland
Italy
Luxembourg
The Netherlands5
United Kingdom
— England and Wales
— Scotland 7
— Northern Ireland
(0 The oath6
Belgium
Denmark7
Federal Republic of Germany 7
France
Greece