Free Movement of Lawyers Within EU to Provide Services - Assignment Example

Free Movement of Lawyers within EU to provide services Number Department Introduction The European Union law allows for free movement of attorneys from Member States to provide services within the Community. The free practice beyond national territories is imperative not only to the legal fraternity, but to various organizations and individuals who need legal assistance from one’s country of origin. Unrestricted movement of individuals in the whole market has raised the need for persons who have registered as citizens of countries other than those where they were born to access legal counsel whose quality may be compromised by language translation or by conflicting legal structures of their new country of residence. Heremans (2010) indicated that by ratifying several laws the EU’s actions are geared towards integrating the national systems for legal practice within its jurisdiction. This paper is aimed at assessing the structures guiding the legal practice within the larger European Union. The main challenges facing the regulations and the implications of legal practice within the territory are also covered in this paper. In understanding these issues, the paper analyses the Treaty upon which the European Union is anchored, EU Directives on legal practices within the region, and authorities issued by the European Court of Justice (ECJ). This paper focuses on movement of legal professionals within the European Union to provide services. History of EU Regulations Hill (1995) noted that the establishment of the statutory structures for legal practice within the EU is a process that has lasted for many decades. The issue first arose in 1957 when various countries within the region signed the EU Treaty (Hill, 1995). The then Article 59 provided for the freedom to legal practice within the territory. Since then, Tucker (1997) indicates that the EU Law in its letter and spirit aims to remove territorial hindrances that could impede free movement of people, commodities and capital across nations. According to Hill (1995), Article 50 of the European Community (EC) Treaty defines the services as activities of: individuals working in a particular industry such as businesspersons, craftsmen, and specialists. Article 50 also states that without partiality to the letter and spirit of Article 43, which confers upon EU citizens the right of establishment, a legal specialist may briefly render services in another country where the client is based, under the national legal structures of the place of service. Article 43 covers actual carrying out of economic activity in different EU Member States everlastingly by integrating into the economic system of that state (Tucker, 1997). Regardless of its unifying foundation, Giesen (2005) has noted that the EU Treaty is only the universal legal structure guiding the free movement of people and services across states within the EU and falls short of providing the finer details of service provision. In light of the EU legal limits, the invocation of the freedom of establishment is dependent upon secondary laws, which are passed to complement EU regulation of service provision in particular fields (Hill, 1995). ECJ Authorities At first, the issue of whether a legal practice needed to be excluded from the universal liberal clauses supporting freedom to offer services and the establishment of one’s self was contentious (Hill, 1995). Notably, the EC Treaty provides for exceptions only where freedom to render services and establish oneself may have an impact on execution of national government policy (Giesen, 2005). But Guild (1999) noted that the activities of legal professionals have no bearing on the implementation of government policy. In light these ambiguities the ECJ has delivered landmark rulings in favour of economic integration. Previous verdicts of the European Court of Justice (ECJ) have been imperative in setting aside the legal hindrances imposed by member states on individuals who are willing to enjoy their right to movement and establishment of legal practice in another country under EU (Heremans, 2010; Hill, 1995). For example, Case 71/76 Thieffry v Conseil de I’Odre des Avocats a la Court de Paris [1977] ECR 765, Case 107/83 Ordre de avocats au Barreau de Paris v. Onno Klopp [1984] ECR, and Case C-340/89 Vlassopoulou v. Ministerium fur Justiz Bundles – und Europaangelegenheiten Baden-Wurttenberg [1991] ECR I-2357 have been widely cited by various scholars and in subsequent case laws as adequate precedents for supporting the free movement of legal practitioners (Chalmers, Davies, and Monti, 2010). The verdict on Thieffry v Conseil de I’Odre des Avocats a la Court de Paris, raises the issue of indirect prejudice that unfairly breached the rights of a EU lawyer (Chalmers, Davies, and Monti, 2010). In the case, a Belgian advocate educated in his native country applied to be admitted to the Paris Bar. The plaintiff’s application was turned down regardless of the fact that French laws distinguish the Belgian qualifications as similar to the local ones for legal practitioners (Hill, 1995). The Court argued that the plaintiff’s right to establishment would be unfairly impaired under the Treaty, if he was debarred from providing service to his clients, even though his professionalism met the required thresholds (Guild, 1999). In Case 107/83 Ordre de avocats au Barreau de Paris v. Onno Klopp [1984] ECR, the ECJ verdict supported the legality of double establishment in the EU. The Court acknowledged the impact of Article 43(2), arguing that the authority of all the member countries to freely control the operations of lawyers within their respective jurisdictions was still intact (Chalmers, Davies, and Monti, 2010). The Court however indicated that the restriction of the freedom of establishment to just one country under the EU violates Articles 43(1) and 43(2), which permit businessmen or other self-employed persons to operate freely within the EU (Chalmers, Davies, and Monti, 2010). In light of this, the right to impose restrictions on more than one establishment may be enforced within the concerned member countries, but does not count within the whole Community. In Case C-340/89 Vlassopoulou v Ministerium fur Justiz Bundles – und Europaangelegenheiten Baden-Wurttenberg [1991] ECR I-2357, the ECJ ruled that Member Countries should refrain from “any measure which could jeopardize the attainment of the objectives of this Treaty” (Chalmers, Davies, and Monti (2010, p.846). This means that even if national regulations on professional qualifications of lawyers were imposed in good faith, it could still have the unintended ramifications of disallowing deserving citizens of other member countries from enjoying their right to establishment, hence had to be set aside. That could be the impact of disallowing educational qualifications and individuals keen on pursuing their careers in another country within the EU. Chalmers, Davies, and Monti (2010) noted that the ECJ rulings on these three cases confirm the superiority of EU law to the regulations of Member States in imposing any form of discrimination or secondary restrictions which impede the full enjoyment of the freedom of movement of people and services. Moreover, these verdicts support the free movement of lawyers, the establishment, and the enjoyment of their legal practice across the borders of nation-states within the Community (Morano-Foadi, and Andreadakis, 2011). EU Directives Council Directive 77/249/EEC The Council Directive 77/249/EEC was the first one to be issued by the EU, and aimed at easing the appropriate enjoyment of freedom to render legal counsel and representation in court (Heremans, 2010). The Services Directive for lawyers clearly defined the typical advocate and his or her activities in the provision of temporary services within the EU. Since the provision of services is a temporary issue, the Directive noted that it required fewer restrictions than the permanent freedom of establishment. Giesen (2005) noted that the Services Directive defines a lawyer as any individual permitted to pursue his or her legal career according to Article 2. In light of this definition, persons who want to move freely within the EU under the advocate provision must meet the conditions of an advocate in their respective countries. This means law students are technically out of this protection. Additionally, Article 4 in Part I of the Directive disbar member countries from imposing conditions on a lawyer who want to offer temporary legal services within its jurisdiction to meet any requirements for permanent residence or register with any professional body (Guild, 1999). The only exception is specified in Part 1, Article 7 of the Directive, which provides room for the lawyer to be asked by the relevant authority within the concerned nation to show proof of his or her credentials as an advocate (Chalmers, Davies, and Monti, 2010). The Directive specified that an advocate who acts in another country within the EU on a temporary basis would reserve the professional title in his or her country of origin (Niemi, 2012). The enforcement of such a provision requires the revelation of all the accurate details of the advocate to the consumers to safeguard their rights and interests (Chalmers, Davies, and Monti (2010, p.846). Legal practitioners have expanded the scope of the Directive, however (Tucker, 1997). For instance, in spite of the fact that the regulation was conceived out of the need to control temporary provision of legal services in foreign countries, lawyers had based their application for permanent services on the Services Directive. In light of this, the need to control the application for permanent practice ‘through the backdoor’ on the EU level became common, prompting the Community to adopt the clearer Council Directive 89/48/EEC (Guild, 1999). Council Directive 89/48/EEC The Council Directive 89/48/EEC is aimed at controlling the movement of legal professionals and their practice within the larger EU. According to Katsirea and Ruff (2005) the Diploma Directive in the regulation provides for a universal system for acknowledging diploma qualifications conferred on legal professionals upon their completion of University degree(s). The diplomas must lasting for three years, however. Notably, the Council Directive regulates both the advocate’s profession and other relevant fields (Guild, 1999). Giesen (2005) pointed out that the Diploma Directive is different from the Services Directive in the sense that it is a prelude for EU citizens to obtain direct recognition by relevant professional bodies in foreign countries and to offer legal services. This Directive seeks to remove the hindrances to free movement of people and the freedom to render professional services (Niemi, 2012). Moreover the Directive seeks to lower the bar for citizens of various EU States to be part of foreign economic systems and pursue their career in those countries. In pursuing the implementation of the Council Directive, the host country within the EU may impose conditions for the applicant advocate to meet the adaptation requirements lasting three years or less. Alternatively, the applicant may be required to pass a professional test under Article 4. The relevant host country should however permit the applicant to enjoy the right to elect either an amplitude test or an adaptation period (Katsirea, and Ruff, 2005). The enforcement of the Diploma Directive regulates the activity of lawyers in a freer way, since it allows trained legal professionals to provide services in another EU member country after being granted the membership of the relevant professional bodies of the country of residence (Stoica, 2010). Conversely, the Diploma Directive was found to have some flaws (Guild, 1999). Despite its great provisions which allow for a seamless admission to the bar in the host country, Diploma Directive was found to fall short of providing advocates the absolute freedom of movement (Guild, 1999). Legal opinion noticed the problem that many countries were not willing to enforce the Directive by recognizing the professional trainings of the lawyers; and as such they maintained high thresholds in the recognition of Diplomas (Morano-Foadi, and Andreadakis, 2011). There are perceptions that many of these restrictions are based on protectionism to limit the foreign lawyers from joining the local bars of their respective host countries. But, in response to the legal impediments barring foreign lawyers from practicing in EU Member States, the European Parliament and the Council lifted all those restrictions by passing a more liberal Directive in 2005. The Directive is aimed at pressing nation-states under EU to recognize professional credentials of lawyers (Katsirea, and Ruff, 2005). The Directive replaced the Diploma Directive on recognition of professional qualifications and applies to legal practice in foreign countries. Directive 98/5/EC Directive 98/5/EC of the European Parliament also regulates the legal practice as an adjunct measure to the Council Directive of 1998 to enhance permanent residence and legal practice in a different country from where the training was attained (Heremans, 2010). The Establishment Directive was created to achieve three primary goals: to enable EU advocates to enjoy their professional rights when pursuing specialized activity while retaining their titles, which they earned in their native countries; secondly, to enforce full membership of foreign lawyers in their new country of residence’s bar and other professional bodies; and lastly, to permit EU lawyers to continue joint legal practice (Chalmers, Davies, and Monti, 2010). According to Niemi (2012), Article Two of the Establishment Directive provides for a broader room for legal practitioners within the EU. The Article entitles any advocate to establish his or her career in legal practice in any other country within the EU territory under the title which he or she obtained from their respective home-country, without any restrictions (Bercusson, 2007). Despite its good intentions, some legal experts have raised their reservations on the Article, blaming it for causing inconsistencies in the bar as far as advocate titles are concerned (Chalmers, Davies, and Monti, 2010). Initially, a duration of five years was recommended for the sole aim of aiding integration with the local legal fraternity. A lawyer would be expected to obtain a new professional title recommended in the host state after the expiry of the window period. That would practically translate into adaptation to the local processes and the professional behaviour of the local advocates (Katsirea, and Ruff, 2005). The drafters of the new Directive eventually took into account the possibility that there was a need to tailor the legislation to be in line with the changing trends in the world. Despite the changing trends pushing the world economy towards one unified by globalization, some EU Member Countries such as Germany and Lithuania have imposed restrictions on the retention of professional titles of legal practitioners from other countries within their respective jurisdictions (Stoica, 2010). In both countries lawyers who retain such titles are not entitled to represent a client in court processes in the country (Katsirea, and Ruff, 2005). Regardless, Chalmers, Davies, and Monti (2010) noted however that it is not mandatory for a EU advocate to register as permanent member of law professional bodies and assume the professional title used in the new country of practice. On his part, Tucker (1997) has pointed out that the aim of the Establishment Directive is to lay ground for a possibility of a EU advocate to join a professional body in a foreign country as a full-fledged member if he or she desires so. Katsirea and Ruff (2005) indicated that under the Establishment Directive, transforming oneself into a permanent member of a professional association requires that the lawyer must have consistently offered legal counsel in the foreign county for a duration spanning three years or more. Despite the tight conditions, a EU advocate may still benefit from acquisition of the professional title in a foreign country in fewer than the recommended 36 months. This concept of lowering the duration that lawyers need to obtain the titles was informed by suggestions that a EU lawyer who has completed the three years adaptation period will not be required to sit for a knowledge test, especially after they have successfully and consistently provided legal services in the host country (Bercusson, 2007). Sceptics of the efficiency of the three years adaptation period have argued that the 3-year duration of practice may not be sufficient to equip a EU lawyer with adequate skills and knowledge needed to practice in the host country, hence the need for collaboration with local attorneys. Conclusion The European Union Treaty signed in 1957 developed the general legal structures supporting freedom of movement of people and services within the EU territory. However, it falls short of providing finer details of the way service provision would be done. The ECJ has ruled against national policies that are seen to be causing any kind of discriminatory impacts upon foreign lawyers who are willing to practice in another country under EU. These national limitations have been quashed by the ECJ on the premise that they impede the freedom of movement of various economic assets across states. According to the European Union laws, EU lawyers are at liberty to provide temporary legal services in another country under the EU jurisdiction without having to follow the doctrine of establishment in the host country; or enjoy rendering legal counsel in another member country under EU after having achieved the right to establishment in the country of origin; or become a full-fledged member of the bar of the host state with a new or the same professional title. Today, any EU advocate who has received clearance by accredited professional institutions to practice in a particular country can apply for permanent practice in another EU member state, with their credentials from their home-country. The EU laws assume that a qualified lawyer in any of the tens of EU countries is competent enough to adapt to a new legal system within the EU and provide standard legal services to clients. Nonetheless, the host state may impose regulations on foreign advocates requiring them to: show proof of their qualifications; make constant consultations with the local bar; and reveal their full identity and other relevant details to safeguard the interest of local consumers. In a nutshell, the European Union has adequate legislation supporting the practice of EU lawyers in any other country within the Community where they wish to establish their career in. Various rulings by the ECJ have equally supported the cross-border practice for legal professionals, a development that is likely to result in more integration of the legal systems in EU Member States. References Bercusson, B. 2007. The Trade Union Movement and the European Union: Judgment Day. European Law Journal, 13(3), pp.279-308. Chalmers, D., Davies, G., and Monti, G. 2010. European Union Law: Cases and Materials. Cambridge: Cambridge University Press. Giesen, R. 2005. Workers, Establishment, and Services in the European Union. Common Market Law Review, 42(5), pp.1541-1542. Guild, E. 1999. The legal framework and social consequences of free movement of persons in the European Union. London: Martinus Nijhoff Publishers. Heremans, T. 2010. Free movement of Lawyers in the European Union. Common Market Law Review, 47(6), pp. 1867-1868. Hill, L.L. 1995. Lawyers publicity in the European Union: Bans are removed but barriers remain. Katsirea, I., and Ruff, A. 2005. 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