QUINN, JAMES P --- "The Right to Practice Law in the European Union: An American Perspective" [2004] MqJlBLaw 6; (2004) 1 Macquarie Journal of Business Law 113

The Right to Practice Law in the European Union: An American Perspective

JAMES P QUINN

I INTRODUCTION

The laws of the European Union (EU) have been structured to allow lawyers considerable freedom to practice in all Member States of the EU.[1] In the last 25 years, lawyers both within and outside the EU have realized substantial benefits from the easing of restrictions on admission to the legal profession. A combination of legislation and case law has steadily expanded interstate legal practice rights, making the multistate practice of law a reality throughout the EU.[2] Lawyers from any State are able to represent clients on a continuous basis throughout the EU, practice virtually any type of law within any EU country, and form multinational law firms with offices in any EU commercial center.[3] In short, lawyers are able to pursue a modern international legal practice throughout most of Europe.[4]

This paper discusses the applicable treaty provisions, directives, and case law that have shaped the EU’s progress toward an integrated legal market. Part Two examines the European Community Treaty (EC Treaty), which provides for the freedom to provide services and the right of establishment in the EU, and the relationship of these EC Treaty provisions to the EU legal market. This Part also discusses the Member States’ reaction to these EC Treaty provisions and the impact that these provisions have had on EU lawyers. Part Three analyzes the various directives which have been designed to facilitate the movement of EU lawyers among the Member States. This Part also discusses the Member States’ reaction to these directives and the impact that these directives have had on EU lawyers. Part IV addresses the rights of US lawyers to practice law in the EU. This Part also provides a brief survey of selected national laws to illustrate the general treatment accorded to US lawyers in the EU Member States.

II EC TREATY PROVISIONS

The starting point in any examination of EU law is the text of the relevant European Community Treaty articles.[5] The ‘purpose clause’ of the EC Treaty declares that the EU ‘by establishing a Common Market and progressively approximating the economic policies of Member States,’ has among its goals ‘to promote the harmonious development of economic activities’ and ‘closer relations between Member States’.[6] This clause establishes a broad base for the EC Treaty which has enabled the European Court of Justice (ECJ) to justify a liberal interpretation of other provisions in the EC Treaty. To fulfill the ‘purpose clause’ of the Community, Article 3 declares specific objectives which include the free movement of persons (allowing EU citizens the right of establishment in another EU country), and the free movement of services (allowing EU citizens the freedom to provide services in another EU country).[7]

The right of establishment generally refers to the regular activities engaged in by a foreign EU citizen after his establishment within another EU country. The freedom to provide services generally refers to the temporary cross-border services that a EU citizen provides to citizens of another EU country. These are arguably the most important freedoms in EU law which allow lawyers to practice on a Union-wide basis, and will each now be discussed in turn.

A The Right of Establishment in Other Member States: Articles 43-48 of the EC Treaty

Articles 43 through 48 of the EC Treaty grant to every EU citizen the right to establish a permanent practice or business in another EU country.[8] The right of establishment is based primarily on Article 43, which reads, in its relevant part, as follows:

[R]estrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition 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.

Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms ... under the conditions laid down for its own nationals by the law of the country where such establishment is effected.[9]

Thus, Article 43 identifies three major aspects of the right of establishment:

(a) the right to set up agencies, branches, and subsidiaries;

(b) the right to conduct activities as a self-employed person; and

(c) the right to set up and manage companies and firms.[10]

For our purposes, a lawyer interested in establishing his practice in a EU Member State would be most interested in the second classification, since ‘self-employed persons’ covers members of the professions. Pursuant to Article 43, a lawyer may conduct business permanently in all member states of the EU or open up a branch office without needing to forfeit his home state bar admission or close his home state office.[11]

Article 43 is especially significant for its protection against discrimination. The second paragraph of Article 43 clearly states that the right of establishment includes ‘the right to take up and pursue activities as self-employed persons ... under conditions laid down for its own nationals by the law of the country where such action is effected’.[12] This means that a self-employed person cannot be prevented from establishing himself in another Member State simply because of his nationality.[13] However, this does not mean that, for example, an English lawyer would be able to establish a law practice in France without first meeting the requirements imposed by France on its own lawyers who want to establish a law practice.[14] Such requirements might include an obligation on lawyers to become members of the French Bar before they establish themselves in France as lawyers.[15] Yet, the French Bar would not be able to discriminate against the English applicant based on his nationality.[16] Thus, all EU practicing lawyers have an enforceable right under the EC Treaty to establish a practice in another Member State on the condition that they meet the national laws that equally apply to nationals and non-nationals alike.[17]

In order to further the EU goal of freedom of establishment, Article 44 authorizes the Council to issue directives and it describes specific areas of concentration for legislative programs.[18] Article 47 is especially relevant for the rights of lawyers because it authorizes the Council to issue directives ‘for the mutual recognition of diplomas, certificates and other evidence of formal qualifications,’ and ‘for the coordination of the provisions laid down by law ... in Member States concerning the taking up and pursuit of activities as self-employed persons’.[19] Almost all practicing professionals in the EU are required to obtain some type of license to practice, which is granted only after a professional has proven his educational or professional credentials. Before the implementation of Article 47, professionals found it extremely difficult to obtain a professional license if they had received their training in another Member State.[20]

The purpose of Article 47 was to promote professional mobility by permitting legislative harmonization of standards for education and training, and the recognition of diplomas or certificates awarded at their conclusion.[21]

As a result of Article 43, several directives have been implemented which have made it easier for professionals to be recognized throughout the EU.[22]

The exceptions and limitations on a professional’s right of establishment are covered in Articles 45 and 46. Article 45 authorizes a Member State to limit the establishment rights of a foreign professional when the services he seeks to provide are ‘connected, even occasionally, with the exercise of official authority’.[23] The term ‘official authority’ has led to much litigation due to its vagueness. In the 1974 case, Reyners v Belgium, discussed below, the ECJ held that a lawyer’s profession does not involve a direct and specific connection with the exercise of official authority and therefore is not limited by Article 45.[24] Article 46 authorizes a Member State to limit the establishment rights of a foreign professional on the grounds of public policy, public security, or public health.[25]

B The Right to Provide Cross-Border Legal Services: Articles 49-55 of the EC Treaty

While Articles 43 through 48 grant to every EU citizen the right of establishment, Articles 49 through 55 grant to every EU citizen the right to provide services. The right of EU citizens to provide cross-border legal services to citizens of another Member State is based primarily on Article 49, which reads as follows:

[R]estrictions on freedom to provide services within the Community shall be prohibited in respect to 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 Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Community.[26]

Article 49 is clarified by Articles 50 through 55. Article 50 defines ‘services’ to specifically include ‘activities of the professions’.[27] Article 50 allows an EU citizen, who is providing a service, to ‘temporarily pursue his activity’ within another Member State.[28] Article 50 further states that persons providing services cannot be discriminated against on the basis of their nationality, since the service provider may pursue his activity ‘under the same conditions that are imposed by that State on its own nationals’.[29] Article 52 authorizes the Council, through a qualified majority vote, to adopt legislation to achieve the EU goal of freedom to provide services throughout the Union.[30] Article 54 requires Member States to give national treatment to providers of services from other Member States.[31] Article 55 allows Member States to place restrictions on the providing of transborder services in order to protect ‘public policy, public security or public health’. However, this restriction has rarely been used by the Member States.[32]

C Reaction to EC Treaty Articles 43-55

The combination of these treaty articles has provided a foundation for the EU to regulate the practice of lawyers throughout the Union. Even though these provisions were in force since the Treaty of Rome in 1957, little progress was made in the actual implementation of this legislation. Then in 1985, a major detailed Commission study, known as the White Paper, urged the removal of legal and economic barriers between the Member States.[33] The White Paper revitalized the EU, creating ‘a psychological attitude favoring the market integration of fields, such as the practice of law, that have not yet fully been integrated by Community legislation’.[34] This new positive attitude not only encouraged EU legislation to promote market integration, but also influenced the legislatures of Member States to liberalize their own national rules to provide greater freedom to lawyers.[35] This liberalization further facilitated a lawyer’s ability to provide cross-border services.[36]

Although most national legislation was positive toward integration, some Member States tried to use legitimate sounding reasons to restrict lawyers’ rights.[37] Indeed, Member States do have some legitimate interests in strictly regulating the practice of foreign lawyers because they may be concerned with the quality of legal services their citizens receive. This gives them a good-faith interest in protecting consumers and a legitimate concern that lawyers practice law in an ethical fashion according to local rules.[38] Although Member States often used these as reasons to justify their restrictive legislation, it has been argued that their true intent was to protect the economic interests of local lawyers.[39] For instance, as discussed above, the second paragraph of Article 43 stipulates that EU citizens who want to establish a business in another EU Member State must satisfy the conditions which that Member State requires of its own nationals.[40] However, it is likely that this provision could be used by Member States to discourage the ability of non-nationals to establish themselves in their country.[41] A Member State could manipulate Article 43 to favor its own citizens by selecting stringent conditions to establishment which could not easily be met by citizens of other Member States.[42]

The Commission also experienced considerable difficulty in implementing secondary legislation to achieve professionals’ rights of establishment and rights to provide services. Although the Commission proposed many draft directives, the Council did not adopt any of them due to serious disagreement between Member States as to the proper level of professional education and training, and the scope of professional activities.[43] Therefore, adoption was delayed because the Council could not reach a unanimous agreement.[44] Aggravating the slowdown was the fact that the Member States were not giving a ‘direct effect’ to the treaty provisions that granted the right of establishment. Instead, they were waiting for the Council to issue a directive to establish the scope of these Articles.[45] ‘For many years, the Commission and the Member States viewed the right of professional establishment as essentially nonexistent.’[46] In 1974, the ECJ finally ended this setback to the achievement of professional rights with its landmark decision in Reyners v Belgium.[47]

1 Reyners v Belgium

Reyners was a Dutch citizen who was domiciled in Belgium and had obtained a Belgian law diploma, but was denied the status of a Belgian avocat. Since Belgian law required Belgian citizenship as a condition for the status of avocat, Reyners’ application was denied. On appeal, the Belgian Supreme Administrative Court, the Conseil d’Etat, asked the ECJ for a ruling on whether Article 43 (ex Article 52) had direct effect. In its opinion, the Court stated that ‘the rule on equal treatment with nationals is one of the fundamental legal provisions within the Community’.[48] The Court went on to hold that ‘the rule of national treatment’ is effective even if the Council fails in its obligation to pass these implementing directives.[49] However, directives are still desirable and needed because they can ‘promote the effective exercise of the right of freedom of establishment’.[50]

Reyners was a major breakthrough for lawyers who were prevented from practicing in other Member States, particularly for its holding that Article 43 (ex Article 52) had a ‘direct effect’ for professionals seeking to rely on the right of establishment.[51] This meant that professionals no longer had to wait for the Commission to implement a directive. Instead, they could immediately receive the benefits of EU membership. Reyners was also significant because it established a ‘direct effect doctrine’ that was reinforced in later ECJ cases.[52] Indeed, the ‘direct effect doctrine’ achieved more freedoms for lawyers. However, these freedoms were still limited in their application because the Council still needed to issue directives. Even with Articles 43, 49, and the ‘direct effect’ doctrine, implementing directives under Articles 44, 47, and 52 played an integral role in establishing full freedom. Shortly after Reyners was decided, the Council began redrafting and then unanimously passing directives which further expanded rights for professionals.

III DIRECTIVES EXPAND RIGHTS FOR PROFESSIONALS

A Directive 77/249 (Service Directive)

Prior to the 1974 Reyners case, discussed above, the Commission had already been working on a draft directive to enable lawyers to provide services throughout the Community. This proposal was adopted as Directive 77/249 of March 22, 1977 To Facilitate the Effective Exercise by Lawyers of Freedom to Provide Services.[53] The Service Directive is significant because it marked the EU’s first attempt to allow lawyers the freedom to build a cross-border legal practice.[54] The directive sets forth the principle of mutual recognition among Member States of professionals’ licenses.[55] Consistent with Article 49 of the EC Treaty, it allows lawyers from one Member State to provide temporary legal services in another Member State.[56] While providing their services, lawyers may advise their clients on different areas of the law, including the law of the host State where temporary services are rendered.[57] However, lawyers may only render their services under the home State professional title and not under the host State professional title.[58]

While the Service Directive is significant for being the first time the EU has addressed the issue of cross-border legal services, its practical effect was somewhat limited in scope.[59] Perhaps the most important limitation on the directive’s power is Article 5, which permits the host Member State to impose certain technical requirements on lawyers from other Member States.[60] For example, a State may require that visiting lawyers introduce themselves to the local authorities, including ‘the presiding judge and, where appropriate ... the President of the relevant Bar,’ with whom they will be working.[61] In addition, a host State may require visiting lawyers who are representing a client to work together with a local lawyer.[62] These requirements are actually quite time-consuming, as they require the visiting lawyers to contact authorities in the host State with whom they may be unfamiliar.[63] Furthermore, the Service Directive does not provide any explicit definition or restriction of ‘services’, leaving their interpretation to the individual Member States.[64] Also significant is the qualifying language provided in the Directive’s Preface, which states that the document neither provided for the ‘effective exercise of the right of establishment’, nor concerned ‘the mutual recognition of diplomas’ for lawyers wishing to practice across the EU.[65] The resolution concerning equality and recognition of diplomas remained open and contentious for another 11 years.

1 Commission v Germany

Some Member States experienced considerable difficulty implementing the Service Directive as national law. Due in large part to the technical requirements of Article 5, the Service Directive has been the issue of several ECJ judgments. In 1985, the Commission brought an action against Germany on the grounds that the German rules did not properly follow the language of the directive.[66] When Germany introduced its national rules to apply the terms of the directive, Germany required the foreign lawyer to work together with a German lawyer when providing legal services.[67] Moreover, the local German lawyer had to be present at all times during the court proceedings. Germany argued that its national rules were justified by Article 5 of the directive, which allows a Member State to require foreign lawyers ‘to work in conjunction with’ a host State lawyer.[68]

The Court ruled that the German requirements were excessive and too restrictive.[69] The Court specifically held that Article 5 of the directive, which refers to local lawyers as being ‘answerable’ to the host state court, did not imply that the local lawyer became the primary representative of the client or of the foreign lawyer, or that he must be continuously present during court room proceedings.[70] Instead, the foreign lawyer and the local lawyer should decide upon their respective roles in a ‘form of cooperation appropriate to their client’s instructions’.[71] The Court also rejected the German argument that foreign lawyers working without the full cooperation of a host state lawyer might have insufficient knowledge of German law.[72] The Court referred to the lawyer’s need to have adequate knowledge of German law when representing his client, ‘who is free to entrust his interests to a lawyer of his choice’.[73] This is noteworthy since this might imply that a host State may not force a foreign lawyer to work together with a local lawyer when the foreign lawyer advises his client on host State law. Thus, Commission v. Germany facilitated cross-border legal practice by its liberal interpretation of the Directive 77/249 within the context of interstate legal representation.

B Directive 89/48 (Diploma Directive)

In its efforts to further the ability of lawyers to establish a cross-border legal practice throughout the EU, the Council passed Directive 89/48 of 12 December 1988 On a General System for the Recognition of Higher-Education Diplomas Awarded on Completion of Professional Education and Training of at Least Three Years’ Duration.[74] Whereas the Service Directive simply governs the provision of services by lawyers, the Diploma Directive establishes the legal framework within which lawyers may establish a permanent practice in different Member States.[75] The purpose of the Diploma Directive is to meet the expectations of suitably qualified professionals who want to pursue a regulated profession in other Member States.[76] The practice of law falls within the provisions of the directive as one such ‘regulated profession’ because it requires the possession of a diploma.[77] Moreover, the directive contains a provision that specifically addresses the legal profession.[78] This provision is contained in Article 4 of the directive, which addresses those ‘professions whose practice requires precise knowledge of national law’ where providing ‘advice concerning national law is an essential and constant aspect of the professional activity’.[79] If the host State determines that the lawyer’s education and training ‘differs substantially from those covered by the diploma required in the host State’, then the host State may impose on the lawyer either an adaptation period or an aptitude test.[80]

The adaptation period requires visiting lawyers to practice law in the host State under the supervision of a lawyer from the host State for a maximum of three years.[81] The aptitude test, in the alternative, requires visiting lawyers to take an exam assessing their abilities to pursue the practice of law in the host State.[82] However, the directive requires that an aptitude test must be limited to the professional knowledge which is essential for the lawyer to practice law in the host State.[83] Article 1(g) provides that the ‘aptitude test must take account of the fact that the applicant is a qualified professional ... in the Member State from which he comes’ and must test only those subjects ‘knowledge of which is essential in order to be able to exercise the profession in the host Member State’.[84]

More than any previous measure, the Diploma Directive established the framework by which a visiting lawyer may be permanently integrated into the legal profession in a host State.[85] No longer were lawyers limited to practicing their home State’s law or general EU law; instead, they were allowed to practice another Member State’s law. However, Member States were slow to implement the Diploma Directive.[86] This was unfortunate since the establishment of an effective cross-border legal practice depends largely on the mutual recognition of diplomas.[87] There were two major reasons for the Member States’ reluctance to implement this directive. These included the directive’s vague language and the underlying disparities among the various legal systems in the EU.[88]

1 Vlassopoulou v Ministerium Für Justiz

Vlassopoulou is a good illustration of the reluctance shown by Member States in implementing the Diploma Directive.[89] A Greek lawyer received a doctorate in law from a German University. After working for several months with a German law firm located in Germany, she received permission to deal with foreign legal affairs concerning Greek law and Community law.[90] When she later applied for admission as a Rechtsanwalt (German lawyer), the Ministry of Justice refused her application on the ground that she did not have the qualifications which were necessary for admission to the profession of Rechtsanwalt.[91] Germany insisted that she follow the normal admission procedure, which included successfully completing two State exams and an apprenticeship training period.[92] The applicant thereafter brought an action in Federal Court in Germany which referred it to the ECJ for a preliminary ruling.[93] Mrs. Vlassopoulou argued that although Article 43 of the EC Treaty allows Member States to formulate national requirements, these requirements should not hinder the efforts of non-nationals to establish themselves by insisting on burdensome and restrictive national rules.[94]

The Court agreed with Mrs. Vlassopoulou's argument. It stated that Germany could require non-nationals to meet certain qualifications necessary for the practice of law before being admitted (even where those qualifications hindered the establishment of non-nationals).[95] However, the Court went on to hold that Germany could not ignore the training and educational credentials of the applicant when evaluating whether to grant her admission to the legal profession.[96] Therefore, Germany was obliged to recognize the foreigner's knowledge and experience and allow the foreigner to prove that she had the knowledge which she allegedly lacked.[97]

Vlassopoulou showed that Member States were obligated in all cases to compare a foreign applicant's qualifications with those required of their own nationals. Where the applicant ’s qualifications were equivalent to those required of its own nationals, then the host State had to accept the applicant’s diploma.[98] Where the equivalence was only partial, then the host State could require that the applicant demonstrate that he possessed the necessary qualifications, either through professional experience or by taking courses.[99] If refused acceptance, the applicant was entitled to a reasoned explanation and could contest the decision in a national court.[100]

C Directive 98/5 (Establishment Directive)

The need to overcome the delay in achieving full implementation of the Service Directive and the Diploma Directive was acknowledged in Directive 98/5. The purpose of Directive 98/5 is best described by its full title, which is ‘To facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained’.[101] As indicated by the Directive's Preface, ‘only a few Member States already permit’ lawyers from another Member State to practice within their borders. This limitation ‘leads to inequalities and distortions in competition between lawyers from the Member States and constitutes an obstacle to freedom of movement ...’[102]

The adoption of the Establishment Directive is perhaps the most significant step in achieving freedom for lawyers to practice in other Member States. The directive allows a lawyer to become established in another Member State and to practice law on a permanent basis under his home-country professional title.[103] A lawyer wishing to avail himself of this privilege must first register himself with the host State by providing the authorities with proof of his home State registration.[104] After receiving registration in the host State, the lawyer may ‘give advice on the law of his home Member State, on Community law, on international law and on the law of the host Member State’.[105] Moreover, after regularly practicing law for three years in the host State, a lawyer can avoid the aptitude test requirement and obtain the host State professional title.[106] For example, under the Directive, a Danish ‘advokat’ could become established in Germany, begin immediately practicing German law as an ‘advokat’ and, after three years, obtain the German title of ‘Rechtsanwalt’.

Even lawyers practicing regularly for less than three years in the host State under their home-country professional title may seek admission in the host state and avoid the aptitude test requirement.[107] To benefit from this exception, the host State will consider the lawyer’s knowledge and professional experience gained by attendance at lectures or seminars on the ‘law of the host Member State ...’ including seminars on rules ‘regulating professional practice and conduct’.[108] The lawyer is required to provide the competent authority with documentary evidence of his regular activity in the host State, as well as his ‘capacity to continue the activity ...’[109]

As noted above, the adoption of the Establishment Directive was needed to overcome the inequalities and obstacles to freedom of movement resulting from the delay by Member States in implementing previous directives. Thus, the Establishment Directive is crucial, as it lays down specific procedures by which lawyers may obtain immediate access to the legal profession in the host State. Unlike the Diploma Directive, which allows Member States to determine the detailed rules of implementation, the Establishment Directive lays down uniform rules that all Member States must follow.[110] For example, the Diploma Directive allows Member States to require a visiting lawyer to sit for an aptitude test.[111] By contrast, the Establishment Directive grants visiting lawyers automatic access to the legal profession of the host State, where that visiting lawyer has practiced in the host State for an unbroken period of at least three years.[112]

The Establishment Directive is more flexible than previous directives because it allows visiting lawyers to begin practicing immediately in the host State, subject only to the requirement of registration with the competent authority.[113] Moreover, the directive benefits EU clients. With the increasing frequency of business transactions resulting from the Single Market, business people setting up companies in other Member States increasingly need lawyers experienced in cross-border transactions.[114]

1 Grand Duchy of Luxembourg v European Parliament

The Establishment Directive has been the issue of minimal but significant litigation since its adoption. On May 4, 1998, Luxembourg brought an action for annulment, alleging that Directive 98/5 infringed various articles of the EC Treaty.[115] The specific provisions of the directive challenged by Luxembourg were Articles 5 and 11, which concern respectively the right of migrant lawyers to practice under their home-county professional title and their area of activity.[116] Luxembourg alleged that these articles infringed the second paragraph of Article 43 of the EC Treaty by creating a difference in treatment between national and foreign lawyers and that public interest was prejudiced due to a lack of consumer protection.[117]

Specifically, Luxembourg argued that the Diploma Directive had recognized that national law ‘is not identical or even broadly the same from one Member State to another’.[118] Therefore, ‘by abolishing all requirement of prior training in the law of the host Member State ...’,[119] discrimination occurs between national and foreign lawyers. The Court rejected this argument by observing that foreign lawyers are excluded from certain practice areas such as probating estates and preparing property title transfers, and also that the host State could exclude the foreign lawyer from engaging in ‘representation or defense of clients in legal proceedings ...’.[120]

With regard to Luxembourg’s consumer protection argument, the Court explained that consumers are forewarned by the requirement that the foreign lawyer use his home-country title in the host State. The client is also protected by the requirement that all lawyers have professional indemnity (malpractice) insurance.[121] Moreover, clients are protected by disciplinary rules which apply to all lawyers in the host State.[122]

IV US LAWYERS’ RIGHTS TO PRACTICE IN THE EU

US Lawyers have also realized greater freedoms from the easing of restrictions to practice law in the EU. However, the laws applying to US lawyers are not wholly consistent across the Member States. In other words, whether a US lawyer can practice in the EU depends on which Member State’s laws he seeks to advise.[123] A US lawyer’s right to practice in the EU is not governed by EU law, but by the national law of each Member State, and by international law, particularly the General Agreement on Trade in Services (GATS).[124] Since this paper concerns primarily EU law, the national law of each of the Member States and international law in general are subjects which lie outside the scope of this paper. Instead, a brief description of the general treatment accorded to US lawyers in selected Member States will be provided.

A Brief Survey of Selected National Laws

England is an example of an EU country that is relatively liberal in its treatment of foreign lawyers seeking admission to practice. As explained in detail below, US lawyers with two year’s practice experience who want to practice in England can take a special examination, the Qualified Lawyers Transfer Test (QLTT), in order to qualify as solicitors in England.[125] US lawyers are required to pass three Heads: Property, Litigation, and Professional Conduct and Accounts (all in the form of written essays).[126] Recent amendments to the Qualified Lawyers Transfer Regulations 1990 have made it possible to qualify by passing the three Heads over a three year period, so that one no longer has to pass all three Heads at one sitting.[127]

The right of US lawyers to gain admission to the Roll of Solicitors of England is governed by the Qualified Lawyers Transfer Regulations 1990.[128] First, US applicants must apply to The Law Society of England for a Certificate of Eligibility to sit for the QLTT.[129] To obtain the Certificate, US applicants must complete an application form which they return to the Law Society, together with the following:

(a) documentation showing higher education academic qualifications;

(b) documentation proving admission to the local bar in the US;

(c) letters of reference evidencing at least two years legal experience within the previous five years; and

(d) a non-refundable transfer fee of 400 pounds.[130]

If the Law Society determines that the documentation and references are satisfactory, it will send the US applicant the Certificate of Eligibility.[131] This process can take approximately eight weeks to complete.[132] Second, US applicants must apply to a test provider in England to sit for the QLTT.[133] The test providers will make available to applicants a syllabus, a recommended reading list and past papers for the QLTT.[134] Third, US applicants must apply to the Law Society for admission to the Roll of Solicitors.[135] Applicants will receive an application form to apply to the Roll of Solicitors when a test provider notifies them of their success on the QLTT.[136] This application form must be returned to the Law Society, together with the following:

(a)	documentation confirming success on the QLTT;
(b)	documentation showing completion of the two-year experience requirement; and
(c)	a fee of 100 pounds.

Once the Law Society receives the necessary application and attachments, it will send the applicant a letter confirming the date of their admission.[137]

Germany, on the other hand, is an example of an EU country that is more restrictive in its treatment of foreign lawyers seeking admission to practice. As mentioned above, the right of US lawyers to practice law in the EU is governed primarily by the GATS, an international agreement which governs virtually all service industries, including the legal profession. The GATS was implemented into German law by inserting a new subsection in the Bundesrechtsanwaltsordnung (BRAO)[138] which is the German federal statute regulating lawyers. The new Subsection 206(1) provides that citizens of a Member State of the World Trade Organization (WTO) may only advise on the law of their home State and international law.[139] Thus, the BRAO governing US lawyers is more restrictive than the Establishment Directive governing EU lawyers, since the BRAO provides that foreign non-EU lawyers may advise only on foreign and international law, but not on the law of the host Member State, being Germany.[140]

The right of US lawyers to gain admission to the German local bar association is governed by Section 207 of the BRAO.[141] First, US applicants must prove admission to the bar in the United States by showing documents confirming admisison.[142] This proof of admission must be renewed each year.[143] Second, US applicants must also obtain liability insurance from an insurance company which is authorized to conduct business in Germany, with a minimum coverage of approximately 250,000 euros for each event.[144] Third, US applicants must open an office in the district of the local bar association within three months after gaining admission.[145] This requirement may be satisfied by opening an office as a sole practitioner or by joining a branch office of a firm of lawyers.[146] Thereafter, applicants may provide services only under the US professional title, but may also use the designation ‘Mitglied der Rechtsanwaltskammer’ (member of the bar association).[147] Successful applicants may then advise German clients only on issues concerning US law and international law, but not German law.[148] They are also precluded from representing clients in court proceedings, meaning that they may only advise clients on matters concerning US and international law outside of court.[149]

While Germany does offer an examination (the Eignungsprüfung) to EU lawyers to prove their knowledge of German law, and thereby qualify to practice German law in Germany, they do not make this examination available to lawyers from outside the EU.[150] Thus, for those US lawyers who want to practice German law in Germany, there are basically two options available. One option is to complete the full educational program required of all Germans seeking admission to the profession of Rechtsanwalt, a program that generally requires a seven or eight year commitment.[151] Such an alternative is not feasible for most foreign lawyers, especially since there are few opportunities to pursue a legal education in the evening.[152] A second option is to gain admission to the legal profession in another EU Member State where admission standards are less stringent, and then sit for the Eignungsprüfung to be admitted to the profession of Rechtsanwalt.

V CONCLUSION

The purpose of this paper has been to provide a general overview of the treaty provisions, directives, and ECJ judgments that promote a lawyer’s right to practice law throughout the EU, and to discuss the benefits and shortcomings of these various measures. The EC Treaty provisions are flexible enough to allow lawyers almost total freedom, and the ECJ has shown that it is willing to interpret the laws liberally. However, Member States have shown considerable reluctance toward the EU’s repeated efforts at promoting the rights of lawyers to practice in other Member States. The EU has passed a series of directives, but their impact has been somewhat limited because Member States have been allowed to determine the detailed rules of implementation. The Establishment Directive seeks to remedy the problems encountered with the implementation of previous directives by establishing uniform rules that all Member States must follow. With the adoption of the Establishment Directive, the EU has clearly set a new course in the recognition of lawyers’ qualifications aimed at promoting establishment in other Member States.

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[1] The European Community (EC) became the European Union (EU) when the Treaty on European Union (TEU), signed in Maastricht, came into force in November, 1993. For purposes of consistency, this Paper will refer to the pre-November 1993 EC as the EU.

[2] Roger J Goebel, ‘The Liberalization Of Interstate Legal Practice In The European Union: Lessons For The United States?’ (2000) 34 Int’l Law 307.

[3] Ibid.

[4] Ibid.

[5] Treaty Establishing The European Community (‘EC Treaty’). The EC Treaty has been substantially amended, notably by the Treaty on European Union, see above n 1, and the recent Treaty of Amsterdam, signed on 2 October 1997, and effective 1 May 1999. The Treaty of Amsterdam renumbered the articles of the European Community Treaty as of 1 May 1999.

[6] EC Treaty, above n 5, art 2.

[7] Ibid art 3.

[8] Ibid arts 43-48.

[9] Ibid art 43.

[10] Ibid.

[11] Ronald C King, ‘Foreign Lawyers In Foreign Jurisdictions: Rights Of Practice And Establishment Leveling The Playing Field’ (1996) Def Couns J 363, 369.

[12] EC Treaty, above n 5, art 43.

[13] G Moens and D Flint, Business Law Of The European Community (1993) 170.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid 172.

[18] EC Treaty, above n 5, art 44.

[19] Ibid art 47.

[20] George A Bermann et al, Cases And Materials On European Community Law (1993) 584-585.

[21] Ibid.

[22] The Diploma Directive and the Lawyer Services Directive, each discussed below, are two of the three most fundamental directives that have enhanced cross-border practice.

[23] EC Treaty, above n 5, art 45.

[24] Reyners v Belgian State (C–2/74) [1974] ECR 631.

[25] EC Treaty, above n 5, art 46.

[26] Ibid art 49.

[27] Ibid art 50(b).

[28] Ibid para 2.

[29] Ibid.

[30] Ibid art 52.

[31] Ibid art 54.

[32] Ibid art 55.

[33] Completing The Internal Market: White Paper From The Commission To The European Council, COM (85) 310.

[34] Roger J Goebel, ‘Lawyers In The European Community: Progress Towards Community-Wide Rights Of Practice’ (1992) 15 Fordham Int'l LJ 556, 557

[35] Ibid.

[36] Ibid.

[37] Ibid 558.

[38] Ibid.

[39] See, eg, Patrick Stewart, ‘Is The Siesta Over For The Spanish Lawyers?’ (1991) Int’l Fin L Rev 20.

[40] Moens, above n 13, 172.

[41] Ibid.

[42] Ibid.

[43] Goebel, above n 34, 558.

[44] Ibid.

[45] Van Gend En Loos v Nederlandse Administratie Der Belastingen (C-26/62) [1963] EUECJ R-26/62; [1963] ECR 1.

[46] Goebel, n 34, 559.

[47] Reyners v Belgian State (C-2/74) [1974] ECR 631.

[48] Ibid. This rule is derived from Articles 14-16 of the EC Treaty.

[49] Ibid.

[50] Idid 634; Goebel, above n 34.

[51] Ibid.

[52] See, eg, Van Binsbergen v Bestuur Van De Bedrijfsvereniging (C-33/74) [1974] EUECJ R-33/74; [1974] ECR 1299; (1975) 1 CMLR 298.

[53] Council Directive 77/249, 1977 OJ (L78) 17 [hereinafter ‘Directive 77/249’].

[54] Jonathan Barsade, ‘The Effect of EC Regulations upon the Ability of US Lawyers to Establish a Pan-European Practice’ (1994) 28 Int’l Law 313, 319.

[55] Directive 77/249, above n 53.

[56] EC Treaty, above n 5, art 49; Directive 77/249, above n 53.

[57] Proposal for a European Parliament and Council Directive to Facilitate Practice of the Profession of Lawyer on a Permanent Basis in a Member State Other than that in which the Qualification was Obtained, COM(94) 572, 2 [hereinafter ‘Explanatory Memorandum’].

[58] Opinion of the Economic and Social Committee on the Proposal for a European Parliament and Council Directive to Facilitate Practice of the Profession of Lawyer on a Permanent Basis in a Member State Other than that in which the Qualification Was Obtained, 1995 OJ (C 256) 14, 14.

[59] Nicholas J Skarlatos, ‘European Lawyer’s Right to Transnational Legal Practice in the European Community’ (1991) 1 Legal Issues Of Eur Integration 49, 55.

[60] Directive 77/249, above n 53, art 5.

[61] Ibid.

[62] Ibid.

[63] Ibid.

[64] Barsade, above n 54, 319.

[65] Directive 77/249, above n 53.

[66] Commission v Germany (C-427/85) [1988] ECR 1123.

[67] Ibid.

[68] Ibid.

[69] Ibid.

[70] Ibid.

[71] Ibid.

[72] Ibid.

[73] Ibid.

[74] Council Directive 89/48, 1989 OJ (L 19) 16 [hereinafter ‘Directive 89/48’].

[75] Explanatory Memorandum, above n 57, 2.

[76] Directive 89/48, above n 74, art 2.

[77] Ibid art 1(d).

[78] Ibid art 4(b).

[79] Ibid.

[80] Ibid.

[81] Ibid art 1(g).

[82] Ibid.

[83] Moens, above n 13, 175.

[84] Directive 89/48, above n 74, art 1(g).

[85] Explanatory Memorandum, above n 57, 2.

[86] Malcolm Ross, ‘Freedom of Establishment and Freedom to Provide Services: Mutual Recognition of Professional Qualifications’ (1989) 14 Eur L Rev 162, 165.

[87] Explanatory Memorandum, above n 57, 2.

[88] Skarlatos, above n 59, 64.

[89] Irene Vlassopoulou v Ministerium für Justiz Bundes-und Europaan-gelegenheiten Baden Wurttemberg (C-340/89) [1991] ECR 2357.

[90] Ibid.

[91] Ibid.

[92] Ibid.

[93] Ibid.

[94] Ibid.

[95] Ibid.

[96] Ibid.

[97] Ibid.

[98] Coopers and Lybrand, ‘The Impact of European Union Activities on Sport’ (1995) 17 Loy LA Int’l & Comp LJ 245, 260.

[99] Ibid.

[100] Ibid.

[101] Council Directive 98/5, 1998 OJ (L 77) 36 [hereinafter ‘Directive 98/5’].

[102] Ibid para 6.

[103] Ibid art 2.

[104] Ibid art 3.

[105] Ibid art 5(1).

[106] Ibid art 10.

[107] Ibid art 10(3).

[108] Ibid art 10(3)(a).

[109] Ibid art 10(3)(b).

[110] Ibid art 10.

[111] Directive 89/48, above n 74, art 1(f).

[112] Directive 98/5, above n 101, art 10(1).

[113] Ibid art 8.

[114] Ibid.

[115] Lux v Parliament (C-168/98) [2000] ECR I-9131.

[116] Ibid.

[117] Ibid.

[118] Ibid.

[119] Ibid.

[120] Ibid.

[121] Ibid.

[122] Ibid.

[123] Wayne Carroll, ‘Innocents Abroad: Opportunities And Challenges For The International Legal Advisor’ (2001) 34 Vand J Transnat’l L 1097, 1120.

[124] King, above n 11, 371.

[125] The Law Society, Information Note for Applications made under The Qualified Lawyers Transfer Regulations 1990, <http://www.lawsociety.org.uk/dcs/ fourth_tier.asp?section_id

=3247> 28 February 2003.

[126] Ibid.

[127] Ibid.

[128] Ibid.

[129] Ibid.

[130] The Law Society, Application for Certificate of Eligibility to take The Qualified Lawyers Transfer Test, <http://www.lawsociety.org.uk/dcs/fourth_tier.asp?section_id=3247> 28 February 2003.

[131] Information Note for Applications made under The Qualified Lawyers Transfer Regulations 1990, above n 125.

[132] Ibid.

[133] Ibid.

[134] Ibid.

[135] Ibid.

[136] Ibid.

[137] Ibid.

[138] Bundesrechtsanwaltsordnung [hereinafter BRAO] (1959), <http://translate.google.com/

translate?hl=en&sl=de&u=http://www.brak.de/seiten/06.php&prev=/search%3Fq%3DBRAO%26hl%3Den%26lr%3D%26ie%3DUTF-8%26oe%3DUTF-8> 1 March 2003.

[139] BRAO § 206 (1).

[140] King, above n 11, 370.

[141] BRAO § 207.

[142] King, above n 11, 371.

[143] Ibid.

[144] Ibid.

[145] Ibid.

[146] Ibid.

[147] Ibid.

[148] Ibid 372.

[149] Ibid.

[150] Burkhard Bastuk, ‘Germany’ (1992) 26 Int'l Law 227, 236.

[151] Carroll, above n 123, 1114.

[152] Ibid.