The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER

1994

Fr eedom t o Prov ide Legal Serv i ces and t he Right of Es t ab l i shment of Lawye rs in t he European Un i on

The issue of practising in more than one Member State and being subject to the discipline of more than one Bar was addressed in Ordre des Avocats au Barreau de Paris -v- Klopp, Case 107/83 [1984] ECR 2971. Here the Court ruled that the refusal by the Paris Bar to admit Mr Klopp, who had satisfied all requirements for admission, on the sole ground that he intended to retain his German qualification and continue practising in Germany, was unlawful. The problem of discipline was again addressed in the curious French case, Gulling -v- Conseils de 1'Ordre des Avocats du Barreau de Colmar et de Saverns, Case 292/86 [1988] ECR 111. Mr Gulling, a French notary, had been refused admission to various French Bars on the grounds of lack of dignity, good repute and integrity. He then qualified in Germany as a lawyer and sought to establish in France under the right of establishment. The Court did not address the fundamental question of whether the right of establishment included the right to practise as a French "avocat" but addressed a secondary question that qualification in another Member State did not bypass the local refusal to permit practice for reasons of dignity, good repute and integrity. Finally, the Court addressed the issue of exclusivity of service in the relatively recent case, Sager -v- Société Dennemever & Co Ltd, Case C-76/90 [1991] 1 ECR 4221. German legislation reserved certain patent services in Germany exclusively to German patent professionals. Sager took action to prevent a UK based company from providing patent searching and renewal services in Germany. The Court struck down the law as being incompatible with Article 59 EC and declared that, as no legal advice was provided in this service, the reservation of the service to local patent attorneys was disproportionate

By Bernard O'Connor*

development of Community law and policy it has been the Court of Justice that has led the way in giving dynamic effect to basic Treaty provisions. The direct applicability of Articles 52 and 59 of the EC Treaty was established in the early 1970's. In Reyners -v- Belgium, Case 2/74 [1974] ECR 631, the Court ruled that Article 52, on the Right of Establishment, was directly applicable and that the Public Service Exemption did not apply to the profession of "avocat", even though lawyers might well perform duties connected with the exercise of official authority such as invigilating at elections or obtaining title to administer estates. In the case in question Mr Reyners, a Dutch national who had qualified in Belgium, was successful in impugning a Belgian nationality requirement for entry into the profession in Belgium. In Van Bisbergen -v- Bestuur van de Bedriffsvereniging voor de Metaalnijverheid, Case 33/74 [1974] ECR 1299, the Court ruled that Article 59 EC was directly applicable. The refusal therefore to allow Mr Van Bisbergen, a Dutch lawyer, to appear before a Dutch tribunal because he did not fulfil a Dutch residency requirement was a breach of the freedom to provide services. The problem of the equivalence of diplomas for the purposes of establishment was addressed in Thieffry -v- Conseil de I'Ordre des Avocats á la Cour de Paris, Case 71/76 [1977] ECR 765, where the Court ruled that the refusal by the Paris Bar to admit a trainee because he had a Belgian diploma, even though the degree was recognised in France to be equivalent, was discriminatory. As will be seen below, this case spurred the Council to adopt the Directive on mutual recognition of diplomas.

In this article on the free movement of lawyers, the Treaty provisions, the ease law, the Services Directive, the right of establishment and the Diplomas Directive will be examined in turn.

The Treaty Provisions

The provisions of the EC Treaty which are relevant to cross-border legal practice are set out in Chapter 2 (Articles 52-58) on Establishment, and Chapter 3 (Articles 59-66) on Services. The fundamental right of establishment is provided by Article 52 EC as follows: "(. . . ) restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be abolished by progressive stages in the course of the transitional period. Such progressive abolition shall also apply to restrictions on the setting up of agencies, branches, or subsidiaries by nationals of any

Member State established in the territory of any Member State (. . .)."

The freedom to provide services is provided for in Article 59 EC as follows:

"(. . .) restrictions on freedom to provide services within the Community shall be progressively abolished during the transitional period in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended (. . .)."

The Case Law of the Court of Justice

As often has been the case in the

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