The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER

1994

judicial authority concerned that the lawyer providing services actually has that support and is thus in a position fully to comply with the procedural and ethical rules that apply (. . .)."

to the legitimate aim of protection of the consumer. We will now examine the legislation and draft legislation to determine the current state of lawyers' rights to establish and provide services. Council Directive (EEC) No 77/249 of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide sefvices was adopted in direct response to the Reyners case. This short and simple Directive covers the situation where a lawyer established in one Member State, the home state, provides services in another Member State, the "host" Member State. Article 5 of the Directive provides that Member States may require the visiting lawyer to be introduced to the Court and Bar where the services are to be provided and to work in conjunction with a lawyer practising within that Court's jurisdiction. All Member States have exercised the "working in conjunction" requirement. The provision was litigated in Commission -v- Germany, Case 427/85 [1988] ECR 1123 where the Commission challenged the legality of the German implementing legislation as being too restrictive on the visiting lawyer and too generous ! to the local lawyer, i The Court held that: "(. . .) whilst the Directive allows national legislation to require a lawyer providing services to work in conjunction with a local lawyer, it is intended to make it possible for the former to carry out the tasks entrusted to him by his client, whilst at the same time having due regard j for the proper administration of justice. Seen from that point of view, the obligation imposed upon him to act in conjunction with a local lawyer is intended to provide him with the support necessary to enable him to act within a judicial system different from that to which i he is accustomed and to assure the The Provision of Services Some controversies, however, remain.

professional conduct of the host state without prejudice to his obligations in the home state. What then of home rules which allow the visitor to advertise and host rules which prohibit it. If the Court of Justice were asked to review this conflict, it is likely to examine whether or not the host prohibition is proportionate and would, I suggest follow the line of reasoning adopted in the Irish abortion information case (Case C-159/90, The Society for the Protection of the Unborn Child -v- Grogan [1991] ECR 4685). There are no provisions on the quantity of services to be provided. However, in one case, the Commission objected to a provision in the Spanish implementing legislation which sought to restrict to five the number of times each year services could be provided and the provision was removed from the Spanish law. At the same time, it is clear that the Directive was not intended to provide for establishment in the host Member State. It remains a fine line of law to distinguish between an office in the host state used to facilitate the provision of services and an establishment in the host state. The first issue to be addressed under the right to establishment topic is what services the lawyer establishing himself in the host state intends to provide and secondly, is there a provision in the host state law reserving the right to give legal advice to local lawyers. Monopolies on legal advice exist in Spain, France, Luxembourg, Greece and Portugal and until 1990 existed in Germany. No monopolies on legal advice exist, as far as I am aware, in Ireland, the UK, Belgium, the Netherlands and Italy. All Member States, on the other hand, reserve to nationally established lawyers the right to appear before the Courts, to draw up certain types of The Right of Establishment

The Court found that the requirements that:

• the visiting lawyer should work with a local lawyer even where there was no local requirement for legal representation; • the local lawyer has to be appointed representative of the visiting lawyer's client; • the visiting lawyer could not present oral argument unless the local lawyer was present; • the local lawyer had to accompany the visitor on prison visits; and • the visiting lawyer needed a local lawyer for each different Court District

were all incompatible with Article 5.

In Commission -v- France, Case 294/89 [1991] 1 ECR 3591, the Court again examined national

implementing legislation under Article 5 and struck down the requirements:

• that the visiting lawyer must not be a French national; • that the visiting lawyer must act in conjunction with a local lawyer even where the authority or agency in question did not exercise judicial functions; and • that the visitor must always act with a local lawyer of the Bar of the particular Court District. This last finding of the Court puts the visiting lawyer in a much better position than the local lawyer in that he can move freely within France, Germany, Italy, Spain and other jurisdictions which restrict lawyers to | practice in a particular region. This form of reverse discrimination is well known in the law on the free movement of goods. Visiting lawyers must use the title of ' the home Member State, so once a solicitor always a solicitor. However, the visitor must observe the rules of

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