Free movement of lawyers
The regime to regulate the cross-border supply of legal services and the rules designed to facilitate the establishment of a lawyer in a different Member State other than their own has been in force for a number of years. There are four key pieces of legislation that affect the legal profession:
- the 1977 Lawyers’ Services Directive;
- the 2005 Professional Qualifications Directive;
- the 1998 Lawyers’ Establishment Directive; and
- the 2006 Framework Services Directive. Although it is not specific to legal services, it contains provisions which have a direct effect on the legal services industry.
Provision of services
The Lawyers’ Services Directive (temporary provision)
The Lawyers’ Services Directive 77/249 regulates temporary service provision by a lawyers in a Member State other than the one in which he or she qualified. The directive clarifies which professional rules are applicable to visiting lawyers, what professional titles they are to use and what conditions they can deliver services in the host Member State.
Visiting lawyers providing advice or representation of the client in legal proceedings or before public authorities are regulated by the host bar rules. In case when there is a conflict of professional rules, the rules of the host Member State should apply (see CCBE position paper on the evaluation of Lawyers’ Directives). In addition, in representing their clients in legal proceedings visiting lawyers may need to be introduced to the presiding judge and / or to the president of the relevant bar or work in conjunction with a lawyer who practises in that jurisdiction.
Visiting lawyers who provide advice or representation ‘out of court’ are bound by the professional rules of their home bar. However, he or she also has to abide by the host bar rules only if they are capable of being observed by him or her.
Visiting lawyers may give advice on host state law if he or she is competent. However, Member States reserve the rights to prepare ‘formal documents for obtaining title to administer estates of deceased persons, and the drafting of formal documents creating or transferring interests in land’. In England and Wales, restricted practice areas include exercise of rights of audience in courts, conduct of litigation, reserved instrument activities, probate and notarial activities, and administration of oaths. These may only be carried out by eight groups of lawyers regulated under the Legal Services Act 2007 (solicitors, barristers, trade mark agents, law costs draughtsmen, legal executives, notaries, licensed conveyancers and patent agents). They have to be qualified in the law of England and Wales.
Following the 1995 judgment in the Gebhard case, the freedom to provide services can also include having an office in another Member State if it is necessary to perform the services.
Framework Services Directive
Framework Services Directive 2006/123 was to liberalise services provision within the internal market. It was transposed into national legislation in 2009. It seeks to improve access to services throughout the European Union. It requires Member States to remove unjustifiable or discriminatory requirements affecting the setting up or carrying on of a relevant service activity in that country.
It is implemented into UK law via the Provision of Services Regulations 2009. The Department for Business Innovation & Skills has produced Guidance for Business on the Provision of Services Regulations.
The regime is general and while it deals mostly with how Member States and regulators govern service providers, it also includes direct obligations to service providers. Some of these provisions apply to legal profession:
- law firm’s VAT number;
- details of compulsory professional indemnity insurance which must include the contact details of the insurance provider and the territorial coverage of the policy;
- details of how to access the detailed professional rules applicable to a lawyer; and
- details of complaint resolution procedures, including the role of the Legal Ombudsman and where further information can be obtained.
The Directive establishes ‘one-stop-shops’ for services providers to find information and complete the necessary formalities in one place (called Single Point of Contact). It facilitates co-operation between regulatory authorities such as the Solicitors Regulatory Authority. Finally, it also imposes a general obligation for procedures to be electronic.
The Law Society issued a Practice Note in March 2010 to advise practitioners in more detail. You can access the note here.
Permanent establishment under home title
The Establishment Directive 98/5/EC entitles lawyers who are qualified in and a citizen of a Member State to practise on a permanent basis under their home title in another EU/EEA Member State, or Switzerland. The practice of law permitted under the Directive includes not only the lawyers’ home state law, community law and international law, but also the law of the Member State in which they are practising – the ‘host’ state.
However, this entitlement requires that a lawyer wishing to practise on a permanent basis registers with the relevant Bar or Law Society in that State and is subject to the same rules regarding discipline, insurance and professional conduct as domestic lawyers.
Once registered, the European lawyer can apply to be admitted to the host state profession after 3 years without being required to pass the usual exams, provided that he or she can provide evidence of effective and regular practice of the host state law over that period.
Recognition of qualifications - becoming a full member of the host State legal profession
Recognition of qualifications is regulated by the Professional Qualifications Directive (PQD) 2005/36 (revised in 2013), which replaced the 1989 Diplomas Directive (89/48) and 14 other directives.
Article 13 of the 2005 PQD sets out conditions for recognition of qualifications and access to a regulated profession. The applicant must provide formal proof of their qualifications in their home State that allow them to access the regulated profession. The host Member State has to compare the qualifications of the applicant with those required by its legislation. In case there is a difference, the applicant may be asked to take an aptitude test or undergo the adaptation period. The aptitude test should only be required to the extent that objective differences in substantive law and procedure exist between the jurisdiction from which the lawyer is coming and the one in which he or she wishes to practise.
The directive was reviewed in 2013 and came into force in January 2016. It introduced several new elements, the most important of which is recognition of the traineeships completed abroad and partial access to regulated professions