Freedom of movement of junior lawyers – past, present and future

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Legislation

EU lawyers currently have a distinct regime governing their freedom of movement which consists of two directives, the Establishment Directive (98/5/EC) and Lawyers Services Directive (77/249/EEC). In addition, the provisions of the general regime also apply to lawyers. Framework Services Directive (2002/21/EC) and Mutual Recognition of Professional Qualifications Directive (MRPQ) (2005/36/EC) include provisions that apply to all services providers insofar as there are no sectoral provisions (in which case the latter take priority).

The two instruments make a distinction between establishment and temporary provision of services by lawyers. “Lawyer” is defined through a different method to other services, i.e. someone holding a title (as listed in the Establishment Directive).

In the UK, the titles covered by the directives are advocate, solicitor and barrister (thus excluding legal executives or trademark attorneys).  Since the Lawyers Directives only cover fully qualified lawyers, they do not apply to trainee/part-qualified lawyers (or those with non-equivalent qualifications).

Case Law

However, other instruments which regulate the free movement of people and services, have been held to apply to partly qualified lawyers.

The case of Morgenbesser v Consiglio dell’Ordine degli avvocati di Genova (C-313/01) concerned a student who had completed law studies in France and undertaken training in that country, as well as Italy. Her application to the Bar of Genoa to be included as a trainee lawyer was refused.

The Italian court referred the case to the CJEU where the latter held that if the national competent authorities would not take into account the period of training and work experience obtained in another member state, the freedom of movement and establishment would be hindered.

As a result, the competent authorities must assess applicants’ competencies, knowledge and ability to carry out the role of lawyer in the host country prior to arranging for any shortfall or compensation for a gap in knowledge (see the Solicitors Regulation Authority guidelines which were developed in the wake of the judgment for those who wish to requalify in England and Wales).

The case lists the duties of a competent authority in relation to the evaluation of qualifications, including assessment of:

(a)    Abilities, knowledge and competences to carry out the role of “lawyer” in the host country;

(b)    Knowledge, learning and skills as a whole (no prior equivalence of academic training stage);

(c)     Professional experience (Vlassopoulou [1991] ECR I-2357);

(d)    “professional qualification”, wherever gained;

(e)    A list of topics “knowledge of which is essential in order to be able to exercise the profession” in that country, as a yardstick against which an application must be judged; and

(f)      Objective differences in the context of training and legal practice.

Position

The above case law was embedded in the EU law (revised MRPQ - Directive 2013/55/EU) which included ‘professional traineeships’ required for access to a regulated profession carried out in one Member State and set out the conditions for relevant competent authorities to assess the candidates’ qualification and experience prior to taking a decision to recognise their qualifications. It did so through setting the limits on the permissible duration of such a traineeship and by issuing detailed guidelines ‘on the organisation and recognition of professional traineeships…’. Member States are required to publish such guidelines (Article 55a (2) of the Professional Qualifications Directive, as amended).

Future

Equivalent recognition of lawyers’ qualifications and their right to provide services and/or establish themselves in an EU member state (including trainees and junior lawyers) will form part of negotiations between the UK and the EU. The EU internal market is one of the most deeply integrated legal services markets in the world despite considerable differences in each country’s legal system and the fact that it integrates both common law and civil law jurisdictions.

Even other common law jurisdictions, such as the US, Australia and New Zealand, either require bar examinations for equivalence from UK qualified lawyers (US) or require additional steps for trainee lawyers to qualify once qualified in the UK (New Zealand and Australia). The UK is likely to require a good negotiating position to argue for jurisdictional equivalence for legal services (trainee or otherwise) post-Brexit. This, however, will largely depend on the form which the future EU-UK relationship will take. In case of the Free Trade Agreements (FTAs), for example, services provisions have been traditionally less prominent than those on goods and are thus less attractive options to regulate provision of services.

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