At the time of writing, it is not known whether the UK and EU will reach agreement on their future trade deal. But from the point of view of the trade in legal services between the UK and the EU, the deal or no-deal cliff-hanger does not make much difference.
That is mainly because UK lawyers had such extensive access to EU legal markets during our membership of the EU, and it is widely agreed (in advance of seeing any legal text, of course) that such access will not survive the UK’s departure from the single market. The rights are therefore expressed here in the past tense, even though they survive during the transition period. That is because they expire with the transition period on 31 December 2020.
In brief, English and Welsh solicitors were able to establish under home title in any Member State, and offer advice in home or host law, including EU law, provided that they registered with the host bar. They were also able to provide temporary cross-border legal services in any Member State, without the need to register with the host bar. And they were able easily to gain the title of lawyer in another Member State, either by three years’ practice of that State’s local law (including EU law), or by sitting a few examination papers without ever establishing in the other State.
There were additional possibilities: solicitors had the right to go into partnership with EU lawyers, and were usually able to use their home structures for establishment. They were granted professional secrecy as appropriate in their clients’ dealings with the European Commission, and had the right to plead not only before the European courts, but also in domestic courts (in the latter case, provided that they were introduced by a local lawyer).
The suite of rights described is broader than that granted anywhere else to solicitors abroad, and unlikely ever to be equalled. The normal position under trade agreements is something much narrower, generally limited to establishment under home title with the ability to advise on home law.
The trade deal being negotiated between the UK and EU is likely to focus mainly on the movement of goods and not on services. If that turns out to be the case, then even with the best outcome legal services will be in the position of being more or less on WTO terms.
One of the problems with WTO terms from the perspective of lawyers is that the EU’s schedule of commitments, which governs how others may gain access to its markets, has many national reservations. That means that, at the time of the EU drawing up its schedule, the individual Member States were allowed to enter reservations to access which reflected how they treated foreign lawyers at the point of the schedule’s entry into force. If you look at the EU’s schedule in relation to legal services, you will see that numerous Member States have entered different reservations.
The consequence of this technicality is that there will be no single EU-wide means of delivering cross-border legal services from 2021. Each Member State has its own particular requirements, which have to be followed, meaning that what can be done in one place cannot necessarily be done elsewhere. In order to increase market access, the Law Society is negotiating with 27 different bars and governments, rather than a single EU.
This may seem strange when trade is an EU competence (which is why the trade agreement is being negotiated with the European Commission and not 27 national governments). But the national reservations in the EU schedule of commitments to the WTO are a matter for national governments. And, on top of that, regulation of the legal profession is a national competence, and some of the difficulties that solicitors face are not a matter of the GATS schedule but of national regulation.
The Law Society is busy at all levels, both nationally with Member States and their bars, and at EU level through the Council of Bars and Law Societies of Europe (CCBE), which is the representative body for all European bars, in order to ease the access of solicitors to local markets once the transition period is over. The Law Society’s International Department has extensive experience of all the EU markets, and good contacts with their bar officers. Therefore, anyone with a question about a particular market should contact them at: email@example.com.
Finally, the Law Society has produced excellent guides with more detail on these topics in their End of Transition Hub, for instance:
- trade in legal services (https://www.lawsociety.org.uk/topics/brexit/end-of-transition-period-guidance-trade-in-legal-services)
- practising in various EU jurisdictions such as France and Germany (10 guides so far) (https://www.lawsociety.org.uk/topics/brexit/preparing-for-the-end-of-the-transition-period)
Of course, any future trade deal may surprise us with its provisions. But outlined above are what are generally assumed to be the conditions for cross-border legal services from the beginning of 2021.
Jonathan Goldsmith is a Law Society Council Member for EU matters.