British young lawyers’ practising rights: how will Brexit impact the future in Brussels and beyond?

Siobhan L.M. Kahmann, Covington & Burling Brussels

It is has been widely acknowledged that the impact of Brexit on the practising rights of UK solicitors working in the EU will be significant in both deal and no-deal scenarios. However, the focus has tended to be on long-established practitioners. Another very important demographic which will also be materially affected is our British young lawyers coming through the legal qualification process – in the stages of completing their studies (perhaps on an Erasmus year), completing their traineeships (including a potential secondment in Europe), and even in the first years of qualified practice.

Deal vs No Deal: Working in the EU post-Brexit

Establishment

Qualified UK Solicitors practising in another EU Member State who have registered with their host bar can trigger the administrative process for requalification in their host Member State under the Establishment Directive (98/5/EC). If the UK leaves without a withdrawal agreement, this route will only be possible for candidates who will have completed the necessary three years of practice in the host Member State by that deadline. If the UK agrees a withdrawal agreement with the EU, that deadline will be extended to 31 December 2020, meaning that UK Solicitors who registered with their local bar before 31 December 2017 will be eligible to have their rights grandfathered – consequently some additional British young lawyers may still be able to take advantage of this opportunity.

When free movement comes to an end following Brexit, an EU qualification achieved by rights of establishment will not guarantee unfettered practice rights throughout the EU post-Brexit, as it currently allows. Firstly, UK Solicitors will be limited to the Member State in which they are registered. Secondly, in some countries they may lose their EU qualification unless they are also a citizen of an EU Member State.

For the avoidance of doubt, establishment is unfortunately no longer a viable route for anyone not yet qualified, or qualified but not already relocated to another Member State for 2-3 years (unless the transition period is potentially further extended).

Examinations

Under the Mutual Recognition of Professional Qualifications Directive, EU lawyers can requalify in another Member State by way of national examination (subject to exemptions) without the three-year practice period required under the establishment route.

If the UK leaves the EU without a withdrawal agreement, UK Solicitors will need to have followed relevant courses and have passed the relevant Member State legal practice exams before this date, following which additional international exam requirements may apply. Were the UK to agree a withdrawal agreement with the EU, that would extend the period in which lawyers would be eligible to sit the EU exams until 31 December 2020.

Other Solutions

Some other EU jurisdictions have introduced or intend to introduce provisions to facilitate the continued practice of UK Solicitors in their jurisdiction, offering different options and solutions to British young lawyers who wish to pursue a career in Europe.

Belgium

The UK bars and law societies, through their joint membership of the Council of European Law Societies and Bar Associations (CCBE), recently agreed a memorandum of understanding with the Brussels bars providing certainty on how UK lawyers can practise in Belgium post-Brexit (and vice versa). The Brussels bars intend to explore further legal solutions in the future.

France

The French Government issued an Ordinance which permits UK-qualified Solicitors a one-year grace period post-exit day to requalify via the Establishment Directive. It has also provided for the creation of a foreign legal consultant status, available to foreign lawyers admitted to a bar of a non-EU Member State that is linked to the EU by an international treaty.

Luxembourg

The Luxembourg bar and authorities confirmed that due to the reciprocity and welcome of Luxembourg candidates for requalification in the UK, the EU citizenship requirement is waived for UK Solicitors.

Requalifying in Ireland

Finally, questions remain over whether an Irish Practising Certificate is capable of granting unfettered access for UK Solicitors to the EU legal services market post-Brexit. The Law Society of Ireland issued guidance earlier this year highlighting that Irish solicitors must have their place of establishment in Ireland. It will also publish guidance specifically aimed at UK lawyers, which is expected in the near future.

Conclusion

While the likelihood is that British young lawyers will lose wider rights to practise throughout Europe as part of the Brexit process, it is encouraging that at least some EU jurisdictions have voiced their appreciation of the contribution UK lawyers make to their legal services market and have taken steps to encourage their continued recognition. It is hoped we can continue to develop positive relationships with our European bar association friends post-Brexit, with a view to establishing more effective mutual recognition arrangements. This should hopefully offer opportunities for British young lawyers to continue to benefit from EU secondments during their traineeships and qualified positions in Europe in the future. Watch this space!