The Gazette 1972

EUROPEAN SECTION Irish Lawyers In Europe Right of Establishment and Free Supply

of Services by ERIC A. PLUNKETT

programme for the removal of restrictions of the free supply of services and for the reciprocal recognition of diplomas and degrees. (This matter is also dealt with in article 57 of the Treaty). It seems that as far as the legal profession is concerned it has not been found possible to implement fully the time table set out in these programmes. Freedom of establishment carries the right to set up offices throughout the E.E.C. The freedom to supply services relates to occasional professional services for particular clients. (b) Draft directives of E.E.C. Commission On 17th April 1969 the Commission of the E.E.C. submitted a draft directive on the terms and conditions of achieving freedom to supply services in respect of certain activities of the barrister-at-law (avocat). Free- dom to supply services is an activity of temporary or intermittent character as distinct from freedom of a permanent nature. At this stage it may be pointed out that owing to the fact that there is only one type of lawyer on the Continent known generally as advocate who discharges the functions of both solicitor and bar- rister and as neither the U.K. nor Ireland were parties to the Treaty or conventions thereunder the various documents do not distinguish between the profession of barrister and solicitor. Now that Great Britain and Ire- land have joined the E.E.C. this matter must be resolved. The draft directive recites that the effective freedom of establishment must be preceded by the mutual recogni- tion of diplomas and therefore freedom of establish- ment must be left to later directives. The draft directive stated that the member states should eliminate all restrictions mentioned on title 3 of the programme on the activities of advocates consisting of: (1) consultation activities, (2) free oral exposition before the Courts, access to relevant files, visiting detained persons and attending at preliminary hearings and the mem- ber states are to take the necessary action to give legal effect to these proposals within one year. These provisions relating to freedom to supply ser- vices are to come into operation in advance of freedom of establishment. As regards Court appearances the visiting lawyer must be introduced to the Court accord- ing to the usages of the local Bar and must act in concert with the barrister or solicitor who is a national of the receiving member state. Any requirement that the foreign lawyer must be registered with the professional organisation of the receiving state is to be abolished but the professional organisation is entitled to require evidence as to his professional status and reputation.

The provision of the Rome Treaty and the various protocols attached to it will be of great importance to Irish solicitors now that Ireland has joined the Com- munity. This involves obligations as well as privileges and it is a matter of opinion whether the obligations imposed upon the profession in Ireland following on competition from foreign lawyers will confer a benefit or involve a disadvantage for the profession in Ireland. It is however necessary to face the position that the Treaty when finally operative will require a removal of the restrictions which at present exist on complete freedom of movement of professional men between the countries in the Community. Removal of restrictions on freedom of establishment and free supply of services (a) Background The Treaty of Rome was signed on 25th March 1957. The transitional period is twelve years which may be extended to a maximum period of fifteen years. There are three stages in the transitional period of four years each. Articles 53-54 dealing with the abolition of restric- tions on the right of establishment provides that restric- tions are to be abolished by progressive stages in the course of the transitional period. This means in effect that when the Treaty is fully implemented companies, firms and professional people will be entitled to set up business in any part of the Community on a per- manent basis. Articles 59 and 60 provide for the removal of restric- tions on freedom to provide services within the Com- munity. Services include in particular those provided by professional men. The restrictions are to be pro- gressively abolished during the transitional period. Article 55 provides that the restrictions with regard to freedom of establishment and free supply of services are not to apply to occupations which involves even occasionally the exercise of official authority. There has been an argument in the Community as to whether this includes the practice of the legal profession which in some States has been regarded as an exercise of official authority. The Council of the Community on 25th October 1961 adopted a general programme for the removal of restrictions on freedom of establishment Head III pro- vides that all prohibitions and impediments whether resulting from legislative or administrative provisions or practices are to be removed in accordance with a time table which is specifically applicable to legal advisers and tax consultants. On the same date the Council adopted a general

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