Bid to end barriers to legal work

Date: 23/11/1995

By Rory Watson

EU legislators will try in the coming weeks to end a deadlock within the legal profession which prevents lawyers from enjoying full freedom of movement within the Union.

French Christian Democrat MEP Nicole Fontaine is taking soundings within the profession on draft legislation designed to make it easier for a lawyer to practise permanently in another member state.

Lawyers themselves requested the legislation, tabled by the European Commission last December, to plug the gap in existing rules. Despite differences over how to achieve this, all agree the issue must be settled.

Under existing rules, lawyers qualified in one EU country are allowed to provide their services in another member state on a temporary basis under their own national title. This allows a French lawyer to work in Germany without requalifying.

Lawyers who wish to base themselves permanently in another member state can requalify, but only after an aptitude test or period of adaptation.

“What is lacking is the right of a lawyer qualified in one member state to work permanently under his own national title without requalifying. If you are working in Belgium giving advice on German and EU law, why should you have to take a test on Belgian procedural law?” said one Brussels-based lawyer.

The Council of the Bars and Law Societies of the European Community (CCBE) has drafted a compromise which would give lawyers an indefinite right of establishment in another member state under their own national title. It would also abolish the requirement to sit an aptitude test before requalifying, but lawyers would still be subject to an assessment of the professional experience they had gained in another EU country.

This runs counter to a key element of the Commission's proposal, which allows the use of national titles for five years. After that, a lawyer who did not wish to be assimilated into the host country's legal profession would have to stop practising there.

The CCBE proposals are supported by 14 bars, but are opposed by French, Spanish and Luxembourg lawyers. The French consider tests and assessments to be discriminatory and designed to protect the local market.

But an English colleague rejected this. “The playing field is not level now. In Britain anyone can give legal advice, but is not able to call themselves a solicitor. In France, you must be a French lawyer,” he said.

English lawyers also object to automatic requalification, arguing a bar should have some say in that decision. Fontaine will present her draft report shortly before Christmas, giving a clear indication of the route EU legislators intend to take.