the legal profession in the european union – a comparative analysis of four member states

KATARZYNA GROMEK-BROC

THE LEGAL PROFESSION IN THE EUROPEAN UNION –A COMPARATIVE ANALYSIS OF FOUR MEMBER STATES

ABSTRACT. Cross-border legal practice has finally become reality in Europe mainlythanks to two factors: the legal framework offered to EC lawyers by the EC legislator andthe effect of globalization on legal profession.

This article focuses primarily on the success of EC/EU efforts in abolishing obstacles tothe free movement of lawyers. Particular attention is drawn to the Establishment Directive,adopted in 1998, opening up new perspectives for lawyers. Secondly, it discusses howglobalization has contributed to this development. In relation to the above, this articlealso explores the new concept of establishment stemming from the expansion of lawfirms in Europe. Thirdly and mainly, it considers the national positions and the difficultiesin harmonizing the legal professions throughout Europe. The examples of four MemberStates: the UK, France, Germany and Italy demonstrate how much they differ from eachother as far as the needs, expectations and rules governing the legal profession.

KEY WORDS: cross-border legal practise, comparative legal profession, free movementof lawyers, single market for lawyers in the EU, establishment

The creation of a Single Market within the European Community aswell as the phenomenon of globalisation in the worldwide perspective,have streamlined cross-border transactions and consequently intensifiedcommercial exchange. The changing face of economic Europe has intens-ified the work-load for lawyers because of the increasing demand for legalservices. The expanding “common market” has led to a need for lawyerswho are able to provide legal services beyond national boundaries.

EC LEGISLATION

The EC legislator endowed EU legal practitioners with a legal frame-work, recently completed by the long-awaited and pivotal EstablishmentDirective.1 European lawyers will now find it significantly easier to operatewithin the EU. The facilities offered to EU lawyers have been fullyextended to the countries of the European Economic Area. Nonetheless,the liberalisation of legal practice in the EU has experienced difficulties.The liberalisation of the European Bar has been mainly based on threepieces of legislation (which has been built upon by judgments of the ECJ).

1 Directive 98/5, OJ 1998 L 77/36.

Liverpool Law Review 24: 109–130, 2002.© 2002 Kluwer Academic Publishers. Printed in the Netherlands.

110 KATARZYNA GROMEK-BROC

In addition, these three legislative phases correspond to a more advanceddegree of integration and development of EU Law. Therefore, the “evercloser Union” has been able to offer progressively more advantages to EUlawyers.

The first EC directive applicable to lawyers (Directive 77/249) wasadopted in 1977, and concerned the freedom to provide services.2 Thisdirective was limited in scope to episodic and temporary activity in anotherMember State but it appeared helpful by providing a generic definition ofa lawyer for the purposes of EC law. Generally speaking, however, thisfirst lawyers’ directive was considered “unclear and fudged” and was oftenused abusively as a way round “wild” establishments.3

The second step was taken in 1988 with the adoption of EC Directive89/484 on the mutual recognition of professional qualifications. Thisdirective however, failed to satisfy lawyers’ expectations, which wereto facilitate cross-border legal practice in Europe. The real principle ofthe directive, somehow forgotten, was to recognize qualifications alreadyacquired in one Member State. The directive also provided for an aptitudetest if the professional qualification of the applicant was substantiallydifferent from that required in the host Member State, or if it did notinclude subjects considered essential for legal practice in the host country.Unfortunately, the mutual recognition directive did not appear to be effi-cient and did not promote cross border legal practice, mainly becausethe automatic recognition of qualifications was (and remains) very rare.Member States usually imposed on the applicants an aptitude test similarto the final examination for the qualification of a lawyer in their countrywithout regard to the fact that the applicants were already qualifiedlawyers. In general, the aptitude test was too difficult. The degree of diffi-culty also varied across Europe and was in need of harmonisation. Further-more, the complexity of the aptitude test repelled the more experiencedmembers of the profession who were not prepared to take examinations.The directive itself did not provide any mechanism for recognizing profes-sional experience. Generally speaking, its implementation across Europedemonstrated the protectionist policies of the Member States, thus jeop-ardizing the real purpose of the directive. In fact, the directive was usedrather as a tool to stop an influx of foreign lawyers instead of facilitating

2 OJ 1977 L78/17: Council Directive 77/249 facilitating the effective exercise bylawyers of freedom to provide services.

3 J. Lonbay, “Lawyers Bounding over the Borders: the Draft Directive on Lawyer’sEstablishment”, Europe an Law Review 21 (1996), pp. 50–58.

4 OJ 1989 L19/16: Council Directive 89/48 on General System for the recognition ofHigher Education Diplomas.

THE LEGAL PROFESSION IN THE EUROPEAN UNION 111

it. Finally, the directive clearly envisaged establishment as assimilationwithin the profession of the host Member State. Consequently, it appliedonly to those who wanted to establish themselves permanently in the hostMember State. Thus, it did not take into account the increasing need forlawyers to practise in several European countries, without a change in theirprincipal establishment and who would practice under their title of countryof origin.

The concept of establishment has been for a long time at the centreof the debate, dividing Europe into two camps: the common law and theNetherlands, as opposed to continental Europe.5 This also explains whythe negotiations on the Establishment Directive have taken 20 years. Theadopted version is a victory for the “English concept” of “establishment”:it is based on mutual trust and the recognition of qualifications obtainedin the particular Member State, instead of deep harmonisation of the legaleducational system and vocational training. Thus, the crucial achievementof Directive 98/5 is the provision of a right of establishment for EU lawyersin another Member State under a title of origin, without any examinationor control of their qualifications. The only requirement is that the lawyer isa member of one of the Bars of the European Union; subject to their rightsand duties in relation to professional liabilities, professional insurance, andother financial obligations. Their registration must be renewed in accord-ance with the professional body’s regulations. Essentially, the certificateof registration with a Bar of one Member State provides the basis forpractising anywhere within the EU. However, the directive applies onlyto so called “final products” – lawyers who are fully qualified and alreadyregistered in one Member State. The Directive is silent on the situation ofEU nationals who obtained qualifications in a third country. It is assumedthat they will be treated in the same way as third country nationals.

An extremely important step forward towards liberalization of theEuropean Bar is that there is no time limit on practising under the titleof origin. The migrant lawyer has the choice of either practising in anotherMember State under the home country title for an unlimited time, or tobecome integrated into the host country Bar without any examinationsor control of competencies. Directive 98/5 provides that after three yearsof an “effective and regular” activity a migrant lawyer can become amember of the Bar of the host Member State and practise under thehost country title. Directive 98/5 gives a new dimension to the freemovement of lawyers, emphasizing the new reality of legal activities, in

5 For detailed comments on the Establishment Directive 98/5, see: K. Gromek-Broc,“Le barreau franchit les frontieres. Vicissitudes de la directive d’etablissement pour lesavocats”, Dalloz, N.8/7017(2001), pp. 641–646.


particular the existence of law firms, and the need for cross-border prac-tice. Moreover, considering the day-to-day activities of lawyers, it can bepresumed that the classic concept of establishment under the strict rulesof the host Member State would encompass only a few isolated cases.Establishment today is unlikely to be understood as assimilation in theprofession in the host Member State. It should rather be seen as a possi-bility to operate throughout Europe by setting up agencies, branches orsubsidiaries6 without losing the principal affiliation with the Bar of origin.

Finally, the directive also considers the possibility of practising in agroup or as a salaried lawyer. Previous proposals of the directive, veryliberal in this respect, encountered serious criticism from continental legalprofessions, who defended the privileged status of a lawyer as a self-employed professional. Therefore, the adopted version of the directive tookinto account those objections and allows these practices as long as theyare not contrary to the host country’s law. Belgian lawyers for instance,would be able to be employed in the UK even if their home countryprofession prohibits it. Directive 98/5 adopts the same approach for joinedpractices. Article 11 envisages multidisciplinary groups only if permittedin the host country. Notwithstanding clear opposition from the civil lawprofessions, the directive leaves open the possibility of multidisciplinarypartnerships (MDPs). The battle around MDPs has not ceased with thisDirective. Recently, on 19 February 2002, the ECJ delivered a judgmentin the case J.C.J. Wouters/NOVA7 concerning the multidisciplinary prac-tice of lawyers with accountants. Some continental Bars welcomed theCourt’s restrictive view regarding the joint activity of lawyers and account-ants. The ECJ held that the Dutch Bar’s ban on MDPs between membersof the Bar and accountants was not incompatible with the EC Treaty.Those Member States which were firmly against MDPs, consider that thisdecision has saved and preserved the core values inherent in the legalprofession. The judgment preserved the independence of the legal profes-sion and protected the client’s prerogatives, mainly in order to avoid allrisk of conflicts of interest and to safeguard the lawyers’ obligation of strictprofessional confidentiality. The Court found that the advisory activities oflawyers might be incompatible with the supervisory activities of account-ants. Nonetheless, the Court considered the Dutch Bar as an association ofundertakings for the purposes of Community Law. Consequently, the banof MDPs produces effects restrictive of competition in legal services. Inparticular, clients would be prevented from the benefit of a large variety

6 K. Gromek-Broc, “New Opportunities for EC Lawyers”, International Legal Practi-tioner 25, No. 4 (2000), pp. 116–120.

7 Case C-309/99 Wouters /NOVA [2002] <http://curia.eu.int/>.


of services, for example services which could be offered by a one-stop-shop firm. Moreover, from the international perspective, the restrictionsof competition affect the big accountancy firms and hinder transactionsin the globalizing market. In addition, such restrictions will also influ-ence EU trade and economic and commercial law regulating transnationaltransactions. Nonetheless, the NOVA judgment does not provide a uniquesolution for Europe and a general prohibition of MDPs. Clearly, it does notprohibit MDPs in Member States where they already exist and where theyare not prohibited by law. The Court, however, applying the principle ofproportionality clarified the issue. The Court held that it was reasonable toimpose restrictions on MDPs, despite the fact that those measures infringeEU competition rules, as long as they are necessary for the proper practiceand functioning of the legal profession.

EC LAWYERS AND GLOBALISATION

European lawyers have been subjected to the effects of “globalisation”,which has had a significant impact on the legal profession and its devel-opment. Specifically, globalisation has affected the structure and size ofthe legal practice, as well as its organisation and specialisation. What thenis the phenomenon of globalisation in the legal profession? Globalisationis an extremely fashionable term nowadays and has been offered quite afew definitions.8 Generally speaking, globalisation was born out of theinteraction of markets, orienting the legal profession towards commercial-isation, changing its structure and its organisation for the better-adaptedmarket requirements. It offers to the rest of the World a paradigm of theLaw Firm with hundreds of lawyers, highly specialised in areas related tothe market leaving aside traditional litigation. As a consequence, a newlegal professional is emerging, one who is a mediator and an intermediatein the market.9 Globalisation then, can be an example of the construc-tion of a transnational legal order, a method of harmonisation throughout

8 M.C. Daly, The Ethical Implications of the Globalisation of the Legal Profession:A Challenge to the Teaching of Professional Responsibility in the Twenty-First Century,Fordam International Law Journal V.21, No.4 (1998), pp. 1239–1295: According theFoot note 1: globalisation means an “active, self-referential, multi-dimensional, economic,political and cultural force.

9 R. Briner, Globalisation of the Lawyer, International Business Lawyer V.23, No.23(1995), pp. 521–523.R. Buchanan, J. Davis, Y. Dezalay, D. Trubek, Global Restructuring and the Law: Studieson Internationalisation of Legal Fields and Creation of the Transnational Arenas, Univer-sity of Wisconsin – Madison, Working Paper, August 1993, p. 66.Y. Dezalay, B.G. Garth, “Dealing in virtue, International Commercial Arbitration and the


the market. However, it should not be seen as a predominant or uniqueway of harmonisation. Nevertheless, there is still no comprehensive legalframework for cross-border legal activities at a global level.10 Perhapsthis is because the need for a concrete and coherent code in this areais rather a new phenomenon. However, cross-border legal services arein certain countries based on deep customary rules. Legal services werealso covered by the General Agreement on Trade in Services (GATS) in1994, the first binding commitment at a global level.11 More recently,the concept of foreign legal counsel has been recognized in the contextof the reciprocity of the Marrakech agreements, enabling a lawyer to setup and practise the law of his country of origin, and international law,in the country to which he emigrates.12 The general framework for therecognition of lawyers’ qualifications worldwide is probably too ambi-tious and unrealistic. Usually outside the explicit bilateral agreements, theconditions of access to the Bar at international level are defined on thebasis of the principle of reciprocity. Customarily, countries having a longestablished relationship, for instance France with its former colonies, orthe UK with the Commonwealth, may have agreements to facilitate mutualaccess to the Bar. France, for instance, adopted a Law regulating access tothe French Bar for lawyers from outside the EU. Article 100 of French Law(Decree N.91-1197013) provides for an examination comparable to theDirective 89/48 aptitude test, with the possibility of being granted exemp-tions. American lawyers wishing to practice in Paris have to sit the Article100 examination. In addition, all global European cities (e.g., London,Paris and Milan) have signed inter-Bar agreements with the American BarAssociation, the aim of which is to facilitate exchanges.14 However, the

Construction of a Transnational Legal Order” (Chicago: Chicago Press, 1997), p. 317.Y. Dezalay, Marchands de droit – La restructuration de l’ordre juridique international parles multinationals du droit (Fayard 1992), p. 293.J. Flood, Megalawyering in the Global Order: the Cultural, Social and Economic Trans-formation of the Global, Legal Practice, International Journal of the Legal Profession V.3,No.1/2 (1996), pp. 169–215.M. Raiteri, Mercanti e architetti del diritto. L’influenza delle professioni nella recon-struzione delle regole giuridiche, Sociologia del Diritto V.2 No. XXI (1994), pp. 79–112.

10 H. Adamson, Free Movement of Lawyers (London, Law Society, 1998), p. 160.11 supra.12 D.H. Rivkin, Transnational Legal Practice, International Lawyer V.32 (1998), p. 423.13 Decret N.91-1197 du 27 novembre 1991, Gazette du Palais, 1991, bulletin legislatif,

p. 773; details on examination and exemptions see in: Arrêtes du 7 janvier 1993, Gazettedu Palais, 1993, bulletin legislatif, p. 287.

14 See for example the Cooperation Agreement between the American Bar Associationand the Barreau de Paris of November 22, 1996 in D H. Rivkin, Transnational Legal Prac-tice, International Lawyer V.32 (1998) p. 423.


future seems promising, the CCBE – GATS Committee (Council of theBars and Law Societies of the European Union – General Agreement onTrade in Services) is working on a general framework of harmonised rulesfacilitating access to the EU profession for lawyers from outside the EU.Furthermore, the International Bar Association is preparing a handbookon the GATS process which will contain a set of terms and conditionsconcerning lawyers’ cross-border practice.15 To a certain degree, marketforces at a global level have stimulated the legal profession in Europe andin some respects they fulfil the role of legislator.

The legal professions in four different European countries provide aninteresting illustration of the degree of influence and transformation of thelegal tools related to the phenomenon of globalisation.

Notwithstanding respective methods and attempts at harmonisation,the legal professions of the 15 Member States differ significantly. Thisanalysis will consider the national examples of four Member States – theUK, France, Germany and Italy – from three different perspectives: firstly,the effects of globalisation; secondly, the impact of EC law; and thirdly,internal/domestic evolution.

A. The United Kingdom

The situation of the legal profession in the UK is complex. On one hand,the UK legal profession is a precursor of new ideas in the organization ofthe profession and its structures. It has the highest quality of legal servicesin Europe, and is an example of high specialization. The UK legal profes-sion also constitutes an important bridge between the EU and the USA.Moreover, the UK legal profession is incontestably the most aggressiveand the most competitive in Europe. On the other hand, it has particulardifficulties in accepting Community rules. This results from the specificityof the Common law system, with its division of the profession into twobranches; the existence of three legal professions (England and Wales;Scotland; and Northern Ireland), which involve disparities in access to eachof these professions, and above all, a lack of fundamental reforms.16

For the details on conditions applicable to the EU lawyers wishing to establish themselvesin the US and other countries outside of the EU see: C Bevernage, Document de discussionde CCBE, CCBE 1999 – conditions d’exercice des avocats europeens desireux d’obtenirl’acces a la profession ou d’exercer dans un pays tiers (hors UE) p. 15.

15 GATS round-up: WTO meeting in Doha in November 2001 and its issues applicableto lawyers: <http:www.ccbe.org>.

16 R.Y. Walter, The English Legal System (Butterworths, 1985), p. 709.K. Gromek-Broc, L’etablissement des avocats dans l’Union Europeenne (1998) Ph.D,European University Institute, Florence.


However, the UK legal profession has served as a model to continental,civil law professions, as far as new techniques and methods of modern,legal practice are concerned. London has a particular importance, repre-senting the largest global European city and the most important Europeanlink between lawyers from Wall Street and other global cities such asTokyo and Beijing. By the beginning of the 1990s, 70 American law firmswere well established in London. For those and other foreign law firms, theCity of London is a base from which they can operate throughout Europe.On the league table of foreign and domestic law firms, totalling around10,000, England and Wales has an unbeatable lead on the rest of Contin-ental Europe. The biggest law firm in London and in Europe is CliffordChance comprising of more than 1,100 lawyers. Such law firms provide anew profile for the legal practitioner, and develop new disciplines relatedto the market. Professional success is guaranteed for those dealing withbusiness law, commercial and corporate law, company law, competition,financial and taxation law, bankruptcy law and environmental law. Tradi-tional litigation represents only 30% of their business, without mentioningcriminal law, in which the new legal professionals see no future.17

Due to these new developments in the demands of the globalisedmarket, the composition of the English legal profession has changed.Barristers (of which there are nearly 10,000)18 have lost some of theirprestige, due to the fact that traditional litigation has lost ground, and alsobecause representation before the courts is excessively expensive. Until1971, an English barrister could only be instructed by a foreign lawyerthrough an English solicitor. Direct access is now permitted for overseaslawyers, in-house counsel and professional advisers such as accountants,architects and surveyors. Recently, direct access has been granted to anumber of organizations.19 In April 2002 the Office of Fair Trading (OFT)in its report on “Competition in Professions” underlined the importanceof allowing direct access to barristers and the advertising of compar-

17 R.L. Abel, Between Market and State: The Legal Profession in Turmoil, MLR V.52No.3 (1989), V.52, pp. 285–323.R.L. Abel, Transnational Law Practice, Case Western Reserve Law Review, V.44 (1994),pp. 737–870.S. Sassen, The Global City: New York, London ,Tokyo (Princeton, 1991), p. 397.S. Sassen, Cities in the World Economy (Pine Forge Press, 1994), p. 125.

18 Website, <www.barcouncil.org.uk>, April 2001.19 There are also proposals to change direct access: the Bar Council contacted 21 June

2002. See also: David Bean, A Bar to competition or a competitive Bar? (2000 May 3),New Law Journal, p. 657: “the Bar should relax the rule stopping barristers taking workdirectly from lay clients”.


ative fees.20 The OFT also elaborated on the “Amendment to the Codeof Conduct of the Bar of England and Wales” in January 2002,21 providinga relaxation of the rules governing the legal profession and prohibitingpupillage and tenancy selection.

In contrast, the position of solicitors has been reinforced. In the 15 yearsfrom 1980 through to 1995, the number of solicitors has doubled from40,000 to 80,000, increasing to 104,537 in 2001. In addition, the profes-sion’s average age has decreased; by April 2001, 55.8% were under the ageof 40.22 This has contributed to the evolution of a dynamic and efficientprofession which has adapted to the needs of their clients. The trainingcontract has been recently labelled a professional anachronism. The ChiefExecutive of the College of Law believes that “the traditional two-yeartraining contract should be scrapped and the full qualification should begranted by the Law Society once students had successfully passed theirlegal practice courses”.23

Some recent developments within the solicitors’ branch are worthmentioning: the relaxation of monopolies; the abolition of restrictive ruleson publicity which even before were the most liberal in the EuropeanUnion; the adoption of Regulation 51 1995/1674 which permits honor-ariums to be calculated as a percentage of the case’s value. The corollaryof this is that the traditional function and status of a lawyer, a privilegedposition in respect to practice, which includes high remuneration andhigh social status, professional autonomy and a restriction of competi-tion, is disappearing. Today, the lively competition between solicitors andthe para-legal professions is viewed positively, because it improves thequality of services. Moreover, the extension of salaried contracts to legalprofessionals has made legal advice more accessible to clients.

Finally, the UK legal profession, in order to provide a better service andto respond to the needs of clients, is more directed towards multidisciplin-arity, although the strict rules governing the profession do not facilitatethis development. There is an ongoing debate on the partnership of soli-

20 Supra.21 OFT 375 of January 2002, Amendment to the Code of Conduct of the Bar of England

and Wales.22 J. Jenkins & V.Levis, Trend in the Solicitors’ Profession: Annual Statistical Report

1995, London, Law Society p. 19; for up-to date information, the Law Society contactedon 1 April 2002.J. Edwards, David & Goliath: David Mayhew is blazing a trail for Solicitor advocates inthe UK’s largest Firm, Legal Business V.3 (1995), p. 48.

23 Scrap training contracts, says College of Law chief, TSG conference: Law Societyto review minimum salary, Law Society Gazette (2002, 10 May), <www.lawsoc.org.uk>,p. 1.


citors and accountants. The Law Society is interested in deregulation but itcannot be undertaken by a rule change alone. The recent Wouters/NOVAcase, at the European level, has not assisted this debate.24

In this way, the UK legal profession provides an example of new profes-sionalism.25 Nevertheless, despite this rapid modernisation, it should notbe forgotten that the UK profession is in need of organic reform. UKpolicy, as regards the legal profession, is particularly conservative andcharacterised by the maintenance of restrictive practices and the absenceof collaboration between its two branches.

In order to facilitate the free movement of lawyers, particularly in theframework of the EU, the UK should align itself with continental systems,by abolishing the separate branches of the profession, and unifying thethree existing legal systems: England and Wales; Scotland; and NorthernIreland.

As far as the forms of practice are concerned, the objective is to offer thebest and most efficient service in response to market demand. Many firmsnow operate 24-hour practices and make good use of modern means ofcommunication such as e-mail, web sites etc. Solicitors rarely practise assole-practitioners and their number is diminishing: for example in Englandand Wales 27% of solicitors in 1955 were sole practitioners, 14% in 1977and only 8% in 1994.26 Lawyers often work in associations: for examplethere is one in London grouping 195 Solicitors. Solicitors cannot enterinto an association with someone who is not a solicitor, but it is possibleto employ a French avocat to advise clients on French law. In 1992, theformation of partnerships was permitted.

This rapid development was possible because of the very privileged andstrategic position of UK lawyers. The explanation for this can be found,primarily, in the UK’s historical position as a centre of world trade andfinance. Traditionally and customarily, English law was chosen as the lawgoverning international contracts. Eighty per cent of litigants before theLondon Commercial Court come from overseas and do not have a directconnection with the UK. Also, English is the language of business, whichgives UK lawyers the edge in the era of expanding commerce.

The implementation of the “Service directive” with respect to the UKlegal profession did not create any particular problems, mainly becausethe provision of legal services by foreign lawyers had already existed on acustomary basis. Directive 89/48 has undoubtedly facilitated access to the

24 Law Society contacted on 21 June 2002, see also: Development of Linked Partner-ships: <www.lawsoc.org.uk>.

25 A.A. Paterson, Professionalism and the Legal Services Market, 1995, p. 139.26 Ibid.


profession, for example by 1995, 400 foreign lawyers had entered the UKlegal profession on this ground. This is at least three times more than theother Member States, but its implementation provokes some reflections.27

The aptitude test is complex and long, and the successful candidates aregenerally Irish lawyers. The explanation for the high number of lawyersentering the UK legal profession is the fact that the UK is also the mostattractive country for lawyers to migrate to. By January 2001, 1,250 appli-cations based on Directive 89/48 has been registered with the Law Societyof England and Wales.28 The most applications came from lawyers inIreland (with 511 applications) followed by Germany (178) and Spain(144); at the other end of the scale was Finland (8) and Luxembourg (1).Up to May 2001, an average of 145 applications were received each monthduring that calendar year. The challenge of the Establishment Directivehas however diminished the number of applications for the aptitude test to72 for the first five months of 2002.29 In May 2000, the UK implementedDirective 98/5, and became one of the first Member States to do so.30 Sincethat time 210 foreign lawyers have been registered as European lawyers,under their title of origin. In addition, forty of those foreign lawyers havebecome English solicitors.31 The UK experience provides clear evidencethat Directive 98/5 has effectively opened up borders for lawyers.

B. France

As a typical example of a continental system, the French profession,based on civil law, is extremely complex, fragmented and decentralized.There are several categories of lawyers, and additionally para-legal activ-ities are widely developed. There are 181 Bars across France, which areautonomous, with their own statutes and regulations. The percentage oflawyers compared to the population is very low, although since the secondorganic reform at the beginning of 1990 (in 1991 there were 25,000avocats) their number has significantly increased (in April 2001 there were36,849 avocats representing a population of 60 million), by over one-thirdin ten years. However, it remains low when compared with other Member

27 Report on application of Directive 89/48 EC: Com (96) 46 final of 15 February 1996.28 <www://lawsociety.org.uk>.29 Law Society contacted on 1 July 2002.30 SI 2000/1119.31 Information 2002, 06, contacted: The Clerk of the Board, The College of Law, The

Qualified Lawyers Transfer Test Board, 14 Store Street, London, also: <www.lawsociety.org.uk>; In 2001, the Bar Council, as well has opened a representation office in Brussels:Evanna Fruihof, Euro Fervour! Counsel: The Journal of the Bar of England & Wales(February 2001), pp.32–33.


States. This can be explained by the existence of several para-legal profes-sions. However, for the same number of inhabitants, there is one lawyer inFrance, two in the UK and four in the United States.32 Also, within Francethe distribution between the regions is strongly unbalanced: there is onelawyer in Paris for every 200 inhabitants; 1:1,580 in Strasbourg; 1:4,000in Val de Marne; and 1:13,250 in Veronne.33

France was the first country to proceed with organic reforms in 1970and 1990. After reinforcement of the general principles of Community law,reform of the national rules governing the legal professions seemed inevit-able. In this matter France provides an excellent example to the legislatorsof other Member States. Its main achievements are as follows:34

First, the creation of the National Council of Bars, the supreme bodywhich supervises the work of the 181 regional Bars.35 Its role is toharmonise professional rules at the national level, and particularly to super-vise the qualification of future lawyers in harmonizing training programs.With regard to the EU dimension, it has the important task of processingEU lawyer applications and organising the aptitude tests.36 Secondly, judi-cial activity was merged with legal activity when in-house lawyers wereallowed entry to the profession of avocat, increasing in this way thenumber of legal professionals from 18,000 to 25,000. Thirdly, the statusof a salaried lawyer was created.37 Finally, a new avenue of commercialpractice has been opened up to French lawyers.38

So what remains to be done? The new objectives for the profession inthe near future are: sharp specialization and multidisciplinarity. However,the French legal profession has not fully embraced the requirements and

32 J-C. Woog, Les scrupules de l’eclusier ou reflections sur la morfologie de l’acces a laprofession d’avocat au seul de l’an 1995, Gazette du Palais (du 30 novenbre et 1 decembre1994), pp. 2–11, also Conseil National des Barreaux, contacted March 2001.

33 Website: <www.cnb.avocat.fr>; 2001.34 A. Damien, Commentaire de la loi portant reforme de certaines professions judiciaires

et juridiques, Gazette du Palais No. 1, Doctrine (1991), p. 151.35 G. Danet, Conseil National des Barreaux, Gazette du Palais (1–2 mai 1991), pp.

70–71.36 In 1999, the National Council of the Bars has been offered an inner regulation

harmonising all Bars across France: Decision a caractere normatif No 1999–2001.37 E. de Lamaze, Pour une nouvelle profession de salarie-juriste?! Gazette du Palais

(9,10 novembre 1994), pp. 14, 29.38 H. Ader, La nouvelle profession d’avocat, decret d’application – le point de vue du

bâtonnier Ader, Les Petites Affiches (13 January, 1992), pp. 5–6; Y. Avril , Reforme decerataines professions juridiques et judiciaires, Gazette du Palais (30 avril 1991), pp. 150–170; C.Bancrot, P. de Fontbressin, Le nouvel Avocat, Gazette du Palais (1992), p. 21; M.A.Benabent, Avocats – premieres vues sur la nouvelle profession, JCP Ed G.1 No. 3499(1991).


needs of modern practice.39 French lawyers have not made significantinroads into cross-border practice. Even though they are present in NewYork, London and some other big cities, there is no comparison with thehuge invasion of Anglo-Saxon law firms in Paris. French law firms in thecommon law world have been small in number and of little importance.There are some explanations for this situation. First, expansion in a foreigncountry is a big investment, and legal offices were not permitted to stockcapital before the reform. Second, the previous rules governing the legalprofession imposed restrictive barriers on practice in foreign countries. Itwas difficult for French legal firms to raise their profile in the Common lawworld. In comparison to Anglo-Saxon lawyers, the French legal profes-sion has certain failings. France has a lack of highly specialized lawyers,and the general percentage of lawyers is small in comparison. They donot have experience in working in large corporate structures, and havenot developed commercial law and a high quality service to the extentthat English lawyers have. Moreover, France shares some of the disad-vantages experienced by all civil law legal professions. A deep divisionexists between the legal educational system and practice. The universitycurriculum is too theoretical, and educational and vocational training isvery lengthy.

Nevertheless, the second organic reform has accelerated modernisationas well as globalisation of the profession as seen in particular in Paris.The gap between foreign lawyers practising in France, and French lawyersabroad, has become blurred. In 1995, for example, 12,065 lawyers wereadmitted to the Paris Bar, 676 were foreign (only 284 were from the EU,followed by 146 from the USA), however only a third of this number (225),were practising abroad, 94 in the EU and 96 in the USA.40 In 2000, thenumber of Parisians practising abroad and foreign lawyers in Paris wasalmost the same; of the 15,000 lawyers admitted to the Paris Bar, 789 wereforeign and 741 were Parisians practising outside France.41

Nowadays, there are some modern and international law firms; FidalBureau, for example, has 109 branches across France engaging around1,500 lawyers. In Paris, the two largest law firms are Francis Lefebvre withalmost 200 lawyers, and Gide Loyrette Nouel with around 170 lawyers.

39 Le Top 100 des cabinets d’avocats d’affaires, Le Revenu Français (26 août 1994), p. 1.40 X. de Roux, Rapport No 2364 du novembre 1995 sur la proposition de la directive du

Parlement europeen et du Conseil visant a faciliter l’exercice permanent de la professiond’avocat dans un Etat membre autre que celui ou la qualification a ete acquise COM (94572 final/no E 405).

41 Website: <www.cnb.avocat.fr> 2001 April.


The new French profession, redefined after the reform, is seekingto make an impact in Eastern Europe, where it already has a strongpresence. In addition, Asia (in particular China) has attracted FrenchLawyers. As far as the access of foreign lawyers into the French Baris concerned, the French policy has always been extremely protectionistin this matter. This may be explained as follows: firstly, French lawyersdid not want to lose their privileged position in the market by beingconfronted with an increasing competition in the profession; and secondly,French professionals have not responded favourably to foreign diplomasand qualifications.

The application of Community law has experienced some problems.France’s implementation of Directive 77/249 was delayed for two years.The provision of legal services, on an international scale, has not beenstrong within France. One provision of the directive concerning “legalaction in concert” with local lawyers was interpreted in a restrictive way byFrance, and gave rise to the case Commission v. France.42 The ECJ statedthat local lawyers should serve as a guide to foreign legal jurisdictions butshould not exercise the profession on behalf of a foreign lawyer.

Directive 89/48 provided for an aptitude test for lawyers. The FrenchLaw (arrété of 7 January 1993) describes the mode and procedure of thetest. It is possible to take it three times. By June 2002, 528 applicationshad been registered, out of which 400 were successful. Of the applicationsregistered, 73 came from the UK, followed by 47 from Germany, and40 from Belgium. The data shows also that French Lawyers were mainlyinterested in practising in Belgium, the UK and Luxembourg.43

France had in the past strongly favoured establishment under the hostcountry title. The reasons for this attitude were strictly related to the roleof the legal profession in French society which is perceived as elitist,estranged from the employment relationship and market mechanisms.French legal practitioners have always been reluctant to welcome foreignlawyers and practices into France. They have argued that it would lower thestandard of legal services. However, the adoption of Directive 98/5 demon-strated that France was wise enough to make concessions, with a view toa greater goal. Although its implementation was not without difficulty, theproject of law was submitted to the Senate on 6 March 2002. Despite theabsence of the text of implementation, 30 European lawyers have reliedupon Directive 98/544 and have established themselves in France.

42 Case 294/89 Commission v. France [1991] ECR I-3591.43 Website: <www.cnb.avocat.fr> April 2001; Statistical data also obtained in April

2001, Conseil National des Barreaux, France.44 Conseil National des Barreax, Paris, contacted on 21 June 2002.


C. Germany

Germany is the biggest country in the European Union with 81 millioninhabitants and a very high number of practicing lawyers (110,997).45 TheGerman legal profession is a sort of hybrid between the Common Law(UK) and the Civil Law (France) countries. In comparison with France, forinstance, it has been much more dynamic in gaining a foothold in foreigncountries, and within Germany it has also accepted the phenomenon ofglobalisation. In spite of a series of obstacles imposed by strict Germanprofessional rules, the legal profession managed to successfully developthe structures of large law firms and to reform obsolete practices. It hasalso preserved traditional structures, sole practitioners co-existing along-side the new large law firms. The German legal profession offers the bestmodel of a multidisciplinary partnership, which have prospered within thelegal profession for the last thirty years. However, multidisciplinarity isonly possible to a certain degree. It concerns a joint practice of Recht-sanwalte with some other para-legal professions, for example tax-advisers(Steueberater), patent attorneys (Patentanwalt) and auditors (Wirtschaft-prufer).46 Germany is the only European country allowing a joint practiceof lawyers with accountants. This is the reason why the American influ-ence of large accountancy firms has found Germany to be a sound base.In January 2001, the Supreme Court undermined the traditional under-standing of the concept of partnership and ruled that “a partnership is alegal entity with the capacity to contract, to sue and to be sued and tobe liable in its own right rather than through its members”.47 Taking intoaccount the fact that German law firms operate in partnerships, the Court’sruling has brought significant ramifications for the profession especiallywith regard to the question of contracting with clients in multidisciplinaryand international practices.48 In another decision, however, the SupremeCourt took the restrictive view in the case of a conflict of interests bydisqualifying ex-officio a law firm from representation if this law firm

45 Data obtained at the Conference “The European Lawyer: Phantom or Reality?”London 2th–28th October 2001 at the IALS: Heinz Weil, President of the TrainingCommittee of the CCBE.

46 A. Kespohl – Willemer, MDPs – The German experience, Lawyers in Europe, V.1Jan–Feb (1991), pp. 5–7.D. Barz, Interprofessionelle Zusammenschlüsse Allgemeine Entwicklung und Vorausset-zungen, DSWR (Datenverairbeitung, Steuer, Wirtschaft, Recht) V.8 (1998), pp. 205–206.A. Schmucker, Entwicklung der Strukturen und Beschaftigungszahlen in Rechtsanwalt-skanzleien V.4, (2000), BRAK – Mitteilungen, p. 166.

47 Bundesgerchtshof, 29.1.2001 – II ZR 331/00; NJW 2001, p. 1056.48 M. Kilian, Developments in the German Legal Profession in 2001, <http://www.

anwaltsrecht.org>.


employed a lawyer who had ever worked for the firm representing theopponents. This is regardless of whether or not the lawyer was involvedin this case.49 The Supreme Court decision has been strongly criticised butGerman lawyers are hoping for a more favourable approach once the casecomes before the Constitutional Court.

In contrast to this harmonious development, the German legal profes-sion has deeply anachronistic laws governing the legal profession, whichdemonstrates a strong need for organic reform.50 In particular, the exist-ence of some obsolete and strict principles hinders its development. Thefirst is the principle of a Rechtsanwalt’s monopoly of legal advice. Thisrule is critical in modern legal society because it restricts the activityof lawyers who are not admitted to the German Bar. However, Germanprofessional bodies consider it to be a positive element, one which guar-antees a high level of legal services for clients. Another principle recentlyreleased has been the localization principle (Lokalisationsprinzip) whichis completely unknown in the Common Law system. It limited the activityof Rechtsanwalt to the territory to which the lawyer was attached. In civiland commercial affairs, the Rechtsanwalt could represent his client onlybefore the local Court to which he had been admitted. In the second degreejurisdiction (Landgerichte), the client had to change the Rechtsanwalt. Ifthe case reached the Federal Court (Bundesgerichtshof) the client had tochange the Rechtsanwalt again, to one who was admitted to this Court.Nonetheless, this principle did not apply in the regional and adminis-trative courts. Obviously, the existence of such a rule hindered signifi-cantly the free movement of lawyers in Germany and their possibility tooperate smoothly across the country. Moreover the Lokalisationsprincipwas contrary to the Community law, in particular its jurisprudence inKlopp,51 and in general terms it represented an obstacle to the creationof the “Single Market for Lawyers”.

The third anachronistic feature concerns the education and qualificationof future lawyers. It is too general and does not really prepare a candidatefor legal practice. All candidates must first obtain a judge’s qualification.Overall, legal education is too long, strict and very demanding. It consistsof the First State Examination, vocational training and the Second StateExamination which in all prolongs legal training to several years. Such along qualification period works against German lawyers, because when a

49 Bundesgerichtshof, 2000, AnwZ(B) 3/00; NJW 2001, 1572, see: ibid.50 H. Hermann, Regulation of Attorneys in Germany: Legal Framework and Actual

Tendencies of Deregulation, in M. Faure, Regulation of professions (London, 1993), Law& Economics, pp. 225–243.

51 Case 107/83 Klopp [1984] ECR 1984 p. 2971.


German lawyer qualifies their UK counterpart will have been in practisefor several years.

Some interesting features concerning the profession itself are worthmentioning. The legal profession is decentralized according to admin-istrative division. Judicial organization prevents lawyers from independ-ence and sovereignty. In this matter the German legal system has somesimilarities with American practice under the federal structure.

The main practitioner in Germany is the Rechtsanwalt. There arealso several other legal professionals like Patentanwalt, Wirtschaftsprüfer,Steuerberater, Syndikusanwalt, Notar.

The conservative nature of the profession does not allow for rapidchange, but as new methods of practice establish themselves in the legalcommunity the pressure for reform intensifies.

In order to avoid the restriction of domicile (the principle of localiza-tion) and interdiction to have more than one office on the national territory,German lawyers created partnerships (Übertörtliche Sozietäten). This wasa starting point for German law firms.52 The phenomenon of law firmsdiffused rapidly in the national context.53 In 1989 at least ten law firmsemployed between 50 and 100 lawyers. In March 2001 there were at leasteleven with more than 200 lawyers.54 German law firms are among thebiggest in Europe. In addition, Germany is also one of the first countries inEurope to host large accountancy firms.

For a long time the only partnership permitted was a civil law part-nership. Recent developments have provided the possibility of creatinglimited liability companies. Although advertising is strictly prohibited, it ispossible to advertise a certified specialisation. The possible specialisationsare determined by law. Recently, new accreditations for specialisation havebeen introduced. Apart from those previously available in Employmentlaw, Tax law, Social Security law and Administrative law, German lawyerscan now specialise in Family law, Penal law and Insolvency law.

Generally speaking the application of Community law by Germany hasnot been unproblematic. German policy is protectionist and restrictive.Directive 77/249 was implemented in 1980, and has caused some prob-lems. Particularly, the application of Arts 4 and 5 has hindered the “acquiscommunautaire”. The German transposition of the directive imposed the

52 R. Barbier and M. Barbier, Outlook for the German Legal Profession in the EmergingEuropean Single Market, Business Law Review (May 1990), pp. 14–143.

53 C. Morton, Crossing theRhine – Foreign Law Firms in Germany, Lawyers in EuropeV.Nov–Dec (1990), pp. 14–16.

54 Data obtained: Dokumentationszentrum für Europäisches Anwalts – und Notarrecht:Universität zu Kõln , March 2001.


“Gouvernantenklausel” which required that the action of a foreign lawyermust be in concert with a local lawyer. However, the correct interpretationof the Directive required the presence of a local lawyer only if necessary.55

Under Directive 89/48, applicants are required to undertake an aptitudetest which is the same for all, irrespective of their diplomas, experienceand specialisation. The aptitude test is organised by the same body thatsupervises the Second State Examination. It places foreign lawyers inan unfavourable position, when compared with nationals. The Germanimplementation of Directive 89/48 has been criticised by the Commission,because access to the German profession does not seem to facilitate theactivities of cross-border practices. Up to October 2000, 251 candidateshad taken the aptitude test, of which 80% were successful. Of the 251applicants, 49 were from the UK, 43 from Greece, and 32 from France.

The text for implementation of Directive 98/5 was adopted duringMarch 2000.56 A large number of foreign lawyers have become “Europeanlawyers”, i.e., practising under their home country title. By December2001, 32 Bars had lawyers registered under foreign titles. By January 2002,293 lawyers were benefiting from the Directive,57 increasing the numberof foreign lawyers in Germany by 60%.

D. Italy

The Italian legal profession has similar features to those in southernEurope. It is characterised by uni-personal practice, a lack of specialisa-tion, until very recently a prohibition on advertising, and the fixing offees by way of a percentage of the case’s value. Furthermore, the Italianlegal profession has not undergone a fundamental transformation despitethe evolution of the international market. This is because the economicchanges intervening in Italy have not had the same impact as in other NorthEuropean countries. Italy has attracted little foreign investment, whichexplains the relatively small size and number of law firms. The biggestItalian law firm is Pavia Ansaldo e Verusio with 147 lawyers, spreadacross four branches in Rome, Milan, Padua and Turin. In January 1998,Brosio Casati e Associati mergered with Allen & Overy, grouping togetherover 90 lawyers. Italian lawyers practice mainly in traditional disciplines,for example the civil law, litigation, criminal law and criminal justice.In particular, criminal law is a popular choice for lawyers, because it islucrative and guarantees excellent remuneration. This popularity of penal

55 Case 427/85 Commission v. Germany [1988] ECR 152.56 EuRAG, 9 March 2002, Bundesgesetzblatt 2000 Teil I nr 9.57 Information obtained: Documentation Centre for the Law of the Legal Profession in

Europe, University of Cologne; <www.uni-koeln.de>.


law has been fuelled by the high profile Mafia trials and the trials of famouspolitical figures. The Italian profession does not have a particularly longtradition in international relations because the existing spheres of practicedo not require intensive international cooperation. The influx of foreignlawyers is small and so there is no exchange of new instruments, newstructures and modes of organization. Although there are some interna-tional law firms in Milan and Rome. Italian lawyers usually practise as solepractitioners and remain generalists. This broad competence allows themrapid re-qualification and protects them from the changing economic andpolitical conjuncture. However, Italians are starting to export themselves;some Italian firms have representation in New York, Edinburgh, Paris andBrussels, and an increasing number are migrating to Eastern Europeancountries. The personalised lawyer/client relationship, and the creative anddecision-making role of sole professionals, is what Italian clients demand.In addition, the uni-personal practice obviates the need for a complicatedbureaucracy, and therefore costs are reduced.

The presence of Italian lawyers on the international scene is limitedbecause of insufficient skills in English, which, as stated above, is the mainlanguage of business.

Until very recently the Italian legal profession could only be criti-cised for the anachronistic requisites and a lack of dynamism in engagingreforms.58 The legal profession has been governed by the law of 1934.Numerous proposals for reform have not been achieved. This has been dueperhaps to a continuous, economic and political crisis, which has resultedin reform of the legal profession being given a low priority. The last threeyears, has however seen an increase in legislation regulating the legalprofession.59 However, it is regrettable that the Italian legislator has sofar preferred incremental reforms rather than organic reform. Firstly, thesignificant relaxation of publicity rules occurred in October 1999, whichparticularly favoured advertisement on the Internet, but retaining the limitson advertising on television and through the press.60 Also in October 1999the new deontological Code was adopted,61 which is more appropriate toa modern legal profession.

The training of future lawyers has preserved the features particular to allcivil law systems which means that it is too theoretical and concentrated on

58 Legge 7.8. 1997, No. 266, “Legge Bersani”, Guida al Diritto, No 32 (1997), p. 94.59 La riforma della professione di avvocato e la modernizzazione della societa italiana,

XXV Congresso Nazionale Forense, Napoli, 8/12 settembre 1999 in supplemento a Guidaal Diritto, N.35 1999.

60 V. Nuti, Avvocati: cade il divieto di pubblicita un passo avanti verso la modernizza-zione, Guida al Diritto, V.42 (1999), pp. 16–17.

61 Codice deontologico forense di 16 ottobre 1999, Guida al Diritto, V.42 (1999), p. 20.


internal law and does not prepare Italian lawyers for international careers.However, the lack of appropriate practical skills has been addressed. Anew law (of 21 December 1999: n.537) instituted specialised schools forlegal practitioners which were to operate from 2001. Unfortunately, estab-lishment of these schools, whose main purpose was to provide candidateswith the necessary practical legal preparation,62 was postponed until 2002.

The archaic forms of practice, excluding practicing in companies (jointstock companies, limited company, etc.) have also been considered.63

However, multidisciplinary offices are still not permitted. There are120,000 lawyers serving Italy’s 60 million population, of which only11.4% are women. The principal legal practitioner of the profession isavvocato. The profession is decentralized (a feature of all civil law coun-tries) and comprises of 164 local Bars, which enjoy strong independence.There is a big disparity on the regional level regarding access to the Bar.For example, the statistical data shows that in 1995, in Reggio Calabria94.31% of the candidates successfully passed the final Bar examination, incontrast to Aquila where only 21.49% were successful.

Directive 77/249 was implemented in 1982, with some particularitiessimilar to an interdiction on the installation of infrastructure for lawyerswho provide services. This provision gave rise to the Gebhard case.64 EUlawyers may not participate in judicial activity in Italy.

According to Directive 89/48, applicants can undertake an aptitudetest which is prepared ad personam. The first aptitude test took place in1994; out of the 8 candidates one failed. At June 2002, 92 EU lawyersapplied for access to the Italian Bar, out of which 72 were successful.65 Thesame test applies to lawyers of third countries. Very recently, on 7 March2002, the ECJ condemned Italy for a failure to fulfil its Community lawobligations. In relation to Directive 89/48, the absence of rules regulatingthe aptitude test was found to be contrary to Community law. Italy wasadditionally adjudged to have infringed Arts 43 and 49 EC on the freedomof establishment and provision of services by imposing a requirement ofresidence, and prohibiting service providers from setting up an infrastruc-

62 Gazetta Ufficiale del 31 gennaio 2000 n.24: Decreto del ministero dell’Universita edella ricerca scientifica e tecnologica 21 dicembre 1999 n.24 Regolamento recante normeper istituzione e l’organizzazione delle scuole di specializzazione per le professioni legali;A. Padoa Schioppa, Quell’inevitabile scelta di equiparare la frequenza all’abilitazioneprofessionale, Guida al Diritto, V.6 (2000), pp. 57–60.

63 A.Mariani Marini, Societa professionali: nell’attesa delle regole avvocati gia in “Poleposition” per il mercato, Guida al Diritto, V.9 (1998), pp. 14–27.

64 Case C-55/95 Gebhard [1995] ECR I-4165.65 Consiglio Nazionale Forense contacted on 24 June 2002, see: <www.cnf.it>.


ture.66 Directive 98/5 was implemented in 2000 followed by a decree ofapplication, which has so far resulted in 14 EU lawyers migrating to Italy.67

CONCLUSION

This comparative analysis of the legal professions from the four largestMember States in the EU, has revealed how strongly they are related totheir national cultures and traditions and deeply rooted in their contextand environment. Customarily, legal professions were directly or indirectlyinvolved in public service, and this made harmonisation very difficult whencompared to other professions. The idea of uniformity or parity throughoutEurope led to dispute, and without any hope of compromise, it was finallyabandoned. The preferred concept of the 1990s, defended by UK lawyers,suggested that harmonisation was only needed in certain areas of law, indisciplines related to the market and business. For example, the criminallaw is left almost entirely in the hands of domestic lawyers. This concepthas been reflected in Directive 98/5 which provides a real possibility ofthe creation of a single market for lawyers. It permits cross-border legalpractice within the EU, without any verification of qualifications. However,it is presumed that the migrant lawyer would not interfere in domestic andpolitical aspects of the legal profession. Directive 98/5 is an absolutelyfundamental and revolutionary achievement in the realization of a singlemarket for lawyers. Its implementation has proceeded relatively smoothly,with nine Members States having already implemented it, and with morethan 200 lawyers in London alone having taken advantage of it.

The single market for lawyers within the EU arguably operates moresmoothly than that operated within the US. In some aspects the EU legalframework for lawyers can serve as a model for the US – this in itself isquite a significant achievement.68

Another conclusion which can be drawn is that the internationalisationof the market has had a crucial impact on cross-border legal practice andthe development of relevant rules. Moreover, the phenomenon of globalisa-tion has assured the dominant position of the Common law legal conceptin the market. The consequences of this can be observed in the liberalismof Directive 98/5.

Globalisation from the Common law world has pervaded the EU legalprofession. It has provided new models for practicing law, new structures,

66 Case C-145/99 Commission/Italy [7.03.2002] <http://curia.eu.it>.67 Law nr 526 Art 19, Decree of February 2. 2001.68 R.J. Goebel, The Liberalization of Interstate Legal Practice in the European Union:

Lessons for the United States, The International Lawyer, V.34 (2000), p. 307.


organization of the profession, sharp specialization and a change to theorientation of legal activity towards commercialism. The new Europeanlawyer has been born; a lawyer who will eschew traditional litigation,be highly qualified and specialized, and be able to work in a team in theinternational environment. A new professionalism is thus emerging.

Finally, the national situations of the legal profession have one thing incommon. Lawyers are very much interested in the abolition of restrictionson legal practice, in reforming rules which govern the legal profession,learning new business forms for their practice and seeking out the newopportunities which are available in the globalising market. However, notall legal professionals welcome these developments; some fear the negativeeffect of aggressive competition on their own practices. National rulesgoverning the legal profession hinder this process, being very often notappropriate to modern legal practice. National authorities also tend toadopt protectionist policies rather than address the issue of liberalisation.

This analysis of four national legal professions has demonstrated amultiplicity of issues at the national, European and international level.The most important task for professional bodies on a national, Europeanand international level is to continually adapt, by facilitating the neces-sary changes without cancelling out the essential attributes of the legalprofession, and at the same time providing a high quality service.

Finally, this comparative analysis leads to a reflection of the need forharmonisation and to what extent harmonisation is necessary? Compar-ative studies on the different legal professions informs us that it would notbe possible to provide lawyers with the essential means for cross-borderpractice in the short term, taking as a starting point unification of legalstudies and professional rules. But, in any event is it really necessary to doso? The adoption and the implementation of Directive 98/5 has resulted inqualifications that have been already acquired in one Member State beingrecognised throughout the EU; i.e., educational and vocational qualifica-tions allowing lawyers to practise in the host Member State provided onlythat the minimum level of expertise in the host country law is guaranteed.Thus, it promotes effectively the liberalisation of the “European Bar” whilepreserving our national idiosyncrasies.

Law SchoolThe University of HullHull HU6 7RXUKE-mail: [email protected]

the legal profession in the european union – a comparative analysis of four member states

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