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Twinning Project KS 14 IPA OT 02 16 Support to Kosovo institutions on SAA implementation

Free movement of lawyers in the EU

Dorota Lutostańska, PhD

Councillor to the Minister Department of European Union Law Ministry of Foreign Affairs, Poland


Pristina, January 2019

FREEDOM TO PROVIDE SERVICES

RELEVANT EU ACQUIS

Directive 77/249/EEC to facilitate the effective exercise by lawyers of freedom to provide services

- constitutes lex specialis in relation to directive 2005/36; no obligation to notify competent authority prior to the provision of services and to renew the notification yearly (E-06/13 Metacom).

Directive 2006/123/EC on services in the internal market applies as far as it is not contrary to directive 77/249 (art. 17 point 4 of directive 2006/123)

- esp. prohibited requirements, rights of recipients, quality of services, administrative cooperation.

Whenever a matter is not regulated by secondary legislation, art. 56 TFEU applies.



DIRECTIVE 77/249/EEC

1. Scope of application

Applies to any person listed by professional title in art. 1 par. 2

- the same titles that are listed in directive 98/5;

- persons barred from exercising the profession in the home state may not rely on the directive(C-292/86 Gullung).

The lawyer may but does not have to travel to the host Member State

- the service recipient may travel or the service itself can be sent (C-20/92 Hubbard, C-342/15 Piringer).

Competent authority may require proof of qualifications (art. 7).



2. Right to provide services

Host Member State is obliged to recognise the right of persons entitled to one of professional titles listed to pursue activities reserved for lawyers.

Member States have a broad margin of discretion to determine the meaning of the term ‘lawyer’s activity’.

No answer as to the right of service providers to access the virtual network established for host state lawyers (C-99/16 Lahorgue).

3. Use of professional titles

Obligation to use home state title (art. 3).



4. Applicable rules of the host state:

concerning the representation of a client in legal proceedings or before public authorities together with rules of professional conduct;

rules which govern the profession (as long as they can be observed by a lawyer who is not established in other state and to the extent to which their observance is objectively justified), esp. rules concerning:

- incompatibility of the exercise of the activities of a lawyer with other activities,

- professional secrecy,

- relations with other lawyers,

- conflict of interests,

- publicity.



5. Possibility to require introduction to the presiding judge or the Bar and to obligate service provider to cooperate with a local lawyer (art. 5)

But only in relation to activities relating to the representation of a client in legal proceedings.

Poland: at the first action in the court proceedings, the foreign lawyer is obligated to attach to the case file a document (together with its translation to Polish) verifying his registration in a Member State as a person entitled to use one of the professional titles listed in the directive and to inform the local Bar about the provision of services.



6. Rules of the host state which application is expressly prohibited (art. 4 par. 1):

conditions requiring residence or registration with a professional organization (also C-33/74 Van Binsbergen).

7. Possibility to prohibit lawyers to represent their employers (art. 6)

EFTA Court allowed also a prohibition of self-representation (E-06/13 Metacom).



ARTICLE 56 TFEU – CASE LAW

Service provider is allowed to open an office in the host state (C-55/94 Gebhard).

Possibility to reserve some tasks to notaries (C-342/15 Piringer)

Article 56 TFEU must be interpreted as not precluding legislation of a Member State, under which authentication of signatures appended to the instruments necessary for the creation or transfer of rights to property is reserved to notaries, and as consequently excluding the possibility of recognition in that Member State of such authentication carried out, in accordance with his or her national law, by a lawyer established in another Member State.



Fees - possibility to limit the reimbursement, by an unsuccessful party in

a dispute, of costs in respect of the services provided by a lawyer (C-289/02 AMOK);

- but the successful party must be able to recover from the unsuccessful party (up to the amount of limit set in national law), in addition to the fees of host state lawyer, the fees of a lawyer practising before the court seised of the dispute who, under the national legislation in question, was required to work in conjunction with the first lawyer (C-289/02 AMOK);

- possibility to impose minimum fees, if justified by protection of consumers or proper administration of justice and proportionate (C-94/04 & C-202/04 Cipolla);

- possibility to adopt a flexible system of maximum fees (C-565/08 Commission vs Italy).



FREEDOM OF ESTABLISHMENT

RELEVANT EU ACQUIS

Directive 98/5/EC 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

Directive 2005/36/EC on the recognition of professional qualifications and directive 98/5/EC complement each other - two possible routes of recognition (C-359/09 Ebert).

Directive 2006/123/EC on services in the internal market applies as far as it is not contrary to directive 98/5/EC - esp. simplification of procedures (but see exception in art. 5 par. 4

concerning documents), requirements that are prohibited or to be evaluated, quality of services, administrative cooperation.

Article 49 TFEU (C-2/74 Reyners).



DIRECTIVE 98/5/EC

1. Scope of application

Applies to nationals of EU and EEA listed by professional title in art. 1 par. 2

- also to host state’s own nationals if they obtained the professional title in another Member State (C-58/13 & C-59/13 Torresi).

Lawyers practicing in a self-employed capacity and salarial capacity (art. 1 par. 2)

- if host state allows salaried practice (art. 8);

- possible restrictions on the exercise of the profession of lawyer concurrent with employment in public service, if proportionate (C-225/09 Jakubowska).



2. Right to practice under the home-country professional title (art. 2).

Obligatory registration in host state (art. 3 par. 1)

- presentation of a certificate attesting to registration with the competent authority in the home Member State as the only condition (art. 3 par. 2);

- competent authority in the host state informs its counterpart in the home state of the registration;

- publication of the register if applicable to national lawyers (art. 3 par. 4);

- decisions on refusal to register or on deregistration shall state reasons (art. 9).



No conditions other than specified in art. 3 allowed (C-193/05 European Commission vs Luxembourg), especially:

- a prior language test,

- obligation to produce each year a certificate of registration with the competent authority of home state.

Usage of home state professional title (art. 4).

- in (one of) official languages of home state;

- in an intelligible manner and in such a way as to avoid confusion with the professional title of the host state;

- possibility to require indication of the professional body of which the lawyer is a member in his home state or the judicial authority before which he is entitled to practice or to include a reference to registration with the competent authority in home state.



Scope of activity (art. 5):

- the same professional activities as national lawyers;

- possibility to exclude preparation of deeds for obtaining title to administer estates of deceased persons and for creating or transferring interests, if in the home state they are reserved for professions other than that of lawyer, while the host state authorizes only a prescribed category of lawyers to perform them;

- specific rules for access to supreme courts admissible.

Obligations:

- compliance with rules of procedure applicable in the national courts (art. 5 par. 1);

- possibility to require work in conjunction with a host state lawyer (art. 5 par. 3), but only:



for the pursuit of activities relating to the representation or defence of a client in legal proceedings, and

if such activities are reserved to lawyers practising under the professional title of host state.

- to follow rules of professional conduct of both home and host state (art. 6 par. 1);

- to take out professional indemnity insurance or to become a member of a professional guarantee fund, if applicable also to host state lawyers, unless proof of equivalent insurance is provided (art. 6 par. 3).

Rights:

- to have representation in the professional associations of the host state, covering at least the right to vote in elections to those associations' governing bodies (art. 6 par. 2);



- to a remedy before a court or tribunal in accordance with the provisions of domestic law against disciplinary decisions and refusal to register or recognize qualifications (art. 9 and 10).

Host state applies its disciplinary rules of procedure, penalties and remedies (art. 7)

- competent authority of the home/host state shall be informed before the initiation of disciplinary proceedings;

- cooperation of competent authorities;

- the temporary or permanent withdrawal by the competent authority in the home state of the authorisation to practice automatically leads to the lawyer concerned being temporarily or permanently prohibited from practicing in the host state;

- decisions imposing disciplinary measures shall state the reasons on which they are based (art. 9).



3. Joint practice (art. 11)

Member States may allow joint practice of lawyers.

Lawyers practicing under home- state title should be allowed to join or form such practice.

In case of conflict of rules of home and host state, the later prevail.

Possibility to prohibit joint practice with other professions

- art. 25 of directive 2006/123/EC: the restriction has to be justified in order to guarantee compliance with the rules governing professional ethics and conduct, which vary according to the specific nature of each profession, and necessary in order to ensure their independence and impartiality.



- in Poland lawyers are allowed to practice together, with foreign lawyers, tax advisors or patent agents.

4. Admission to the profession of lawyer in the host state (art. 10).

At any time in accordance with directive 2005/36.

If the lawyer practiced in the host state under his home-country professional title effectively and regularly for at least 3 years in the law of that state including Community law.

If the lawyer practiced in the host state under his home-country professional title effectively and regularly for at least 3 years but for a shorter period in the law of that state, and:

- the competent authority of the host state decides that the effective and regular professional activity pursued during this time, knowledge and professional experience of the law of the host state, and attendance at lectures or seminars on this law



are sufficient to forego compensatory measures that may be required in accordance with directive 2005/36/EC.

May be denied if it is against public policy, in particular because of disciplinary proceedings, complaints or incidents of any kind.

If granted, the lawyer is entitled to use both professional titles.

5. Obligatory cooperation of competent authorities (art. 13 and 14)

European Commission shall be informed about competent authorities designated for this purpose.



DIRECTIVE 2005/36/EC

1. Foreign lawyer may apply for the recognition of professional qualifications at any time in accordance with rules set out in directive 2005/36.

2. Possibility to apply compensatory measures

Conditions:

- the training the applicant has received covers substantially different matters than those covered by the evidence of formal qualifications required in the host state, or

- the regulated profession in the host state comprises one or more regulated professional activities which do not exist in the corresponding profession in the applicant’s home state, and the training required in the host state covers substantially



different matters from those covered by the applicant’s attestation of competence or evidence of formal qualifications.

Aptitude test or adaptation period (max 3 years)

- Member States may choose which one will be applicable in case of this profession, as it requires precise knowledge of national law;

- if the choice (applicable in all cases and communicated to the Commission) is not made, the applicant may choose.

Access to compensatory measures cannot be made conditional upon completion of the period of practical experience required by the legislation of that Member State (C-118/09 Koller).

3. Deadline for decision on recognition: 3 months.



Thank you for attention!

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