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The Exercise of Freedom of Establishment by Lawyers within the EU

Laureckaite, Julija (2006)
Department of Law
Abstract
It was not until the 1970's, when the claims that lawyers profession fell within the exception of official authority (Article 45 EC) were defeated in the Reyners judgement and the lawyer's profession was held to be within the scope of freedom of establishment. In 1977, the Community legislator adopted a Legal service directive. The directive applies to the lawyers from any Member State when providing services in any other than their home Member State. However, this directive covered just temporary and occasional activities of lawyers, leaving unregulated a large part of activities falling under the freedom of establishment. Next, in 1989 the Council adopted a Directive on the recognition of diplomas, which among others also applies to the... (More)
It was not until the 1970's, when the claims that lawyers profession fell within the exception of official authority (Article 45 EC) were defeated in the Reyners judgement and the lawyer's profession was held to be within the scope of freedom of establishment. In 1977, the Community legislator adopted a Legal service directive. The directive applies to the lawyers from any Member State when providing services in any other than their home Member State. However, this directive covered just temporary and occasional activities of lawyers, leaving unregulated a large part of activities falling under the freedom of establishment. Next, in 1989 the Council adopted a Directive on the recognition of diplomas, which among others also applies to the lawyer's profession. The basic conditions set in the directive were a completion of at least three years education and the necessary professional training. However, the recognition of diplomas was not granted automatically and was associated with the requirement to complete an adaptation period or to take an aptitude test in the host Member State. The results of the directive were however not as satisfactory as expected. Such way of integration into host legal system was not acceptable for experienced lawyers or to large law firms wishing to transfer a part of their working force into another Member State. Moreover, the Gullung case and especially the Gebhard case showed that there was an urgent need to address the establishment issue of lawyers in order to meet the strong demand for lawyers to be able to establish and to provide services themselves freely across the borders inside the EU. After 20 years of intensive negotiations, the Establishment directive was adopted in 1998. It opened up the possibility for fully qualified lawyers to establish in other Member State(s) under their home Member State title without any examinations or control of competencies. The directive also gave a second choice for lawyers: to be integrated into the host Member State's legal community after have been effectively and regularly practicing the host Member State law, including Community law, for a period of three years. After its adoption followed an annulment action initiated before the ECJ by Luxembourg, which in the end just firmly set a pattern supportive of Europe wide legal practice. The Wouters and Morgenbesser cases and possible misimplementation of the Establishment directive by Luxembourg revealed still unresolved issues related to controversy between ethical and economic sides of multi-disciplinary partnerships, the free movement of trainee lawyers and legality of language requirement. Nevertheless, apart from the above mentioned issues, there are other and maybe more important factors, such as persisting linguistic, cultural and legal differences, which suppress lawyers from taking the advantage of freedom of establishment within the EU. As a result, lawyers, sole practitioners, are still very reluctant to move and pursue a career into a Member State other than the one where they qualified. However, it is likely that the Establishment directive will serve to the major law firms with the offices in a number of Member States. (Less)
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author
Laureckaite, Julija
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
European Affairs
language
English
id
1555070
date added to LUP
2010-03-08 15:22:54
date last changed
2010-03-08 15:22:54
@misc{1555070,
  abstract     = {It was not until the 1970's, when the claims that lawyers profession fell within the exception of official authority (Article 45 EC) were defeated in the Reyners judgement and the lawyer's profession was held to be within the scope of freedom of establishment. In 1977, the Community legislator adopted a Legal service directive. The directive applies to the lawyers from any Member State when providing services in any other than their home Member State. However, this directive covered just temporary and occasional activities of lawyers, leaving unregulated a large part of activities falling under the freedom of establishment. Next, in 1989 the Council adopted a Directive on the recognition of diplomas, which among others also applies to the lawyer's profession. The basic conditions set in the directive were a completion of at least three years education and the necessary professional training. However, the recognition of diplomas was not granted automatically and was associated with the requirement to complete an adaptation period or to take an aptitude test in the host Member State. The results of the directive were however not as satisfactory as expected. Such way of integration into host legal system was not acceptable for experienced lawyers or to large law firms wishing to transfer a part of their working force into another Member State. Moreover, the Gullung case and especially the Gebhard case showed that there was an urgent need to address the establishment issue of lawyers in order to meet the strong demand for lawyers to be able to establish and to provide services themselves freely across the borders inside the EU. After 20 years of intensive negotiations, the Establishment directive was adopted in 1998. It opened up the possibility for fully qualified lawyers to establish in other Member State(s) under their home Member State title without any examinations or control of competencies. The directive also gave a second choice for lawyers: to be integrated into the host Member State's legal community after have been effectively and regularly practicing the host Member State law, including Community law, for a period of three years. After its adoption followed an annulment action initiated before the ECJ by Luxembourg, which in the end just firmly set a pattern supportive of Europe wide legal practice. The Wouters and Morgenbesser cases and possible misimplementation of the Establishment directive by Luxembourg revealed still unresolved issues related to controversy between ethical and economic sides of multi-disciplinary partnerships, the free movement of trainee lawyers and legality of language requirement. Nevertheless, apart from the above mentioned issues, there are other and maybe more important factors, such as persisting linguistic, cultural and legal differences, which suppress lawyers from taking the advantage of freedom of establishment within the EU. As a result, lawyers, sole practitioners, are still very reluctant to move and pursue a career into a Member State other than the one where they qualified. However, it is likely that the Establishment directive will serve to the major law firms with the offices in a number of Member States.},
  author       = {Laureckaite, Julija},
  keyword      = {European Affairs},
  language     = {eng},
  note         = {Student Paper},
  title        = {The Exercise of Freedom of Establishment by Lawyers within the EU},
  year         = {2006},
}