In this blog post, Jojongandha Ray, a student at Amity Law School, Gurgaon and pursuing a Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, describes the challenges a lawyer with a foreign degree faces while practicing in the EU.
In Europe, there are two main Western legal traditions – common law (UK and Ireland), civil law (Continental Europe) and a mixture (Scandinavian countries) – coexist with their substantive and procedural differences. Each country has its own different statutes. But in spite of the obvious differences between these two traditions, generally, civil law and common law are slowly converging in the world.
Organization of lawyers in Europe
The advocacy organization in Europe can also be generally classified into three groups:
- the system of the Scandinavian countries (advokat);
- the system of the United Kingdom and
- Ireland with a profession differentiated between solicitors (basically legal advice and transactions) and barristers (advocates in Scotland) (basically representation before courts), which are the actors in the courts, and the civil law system of other countries with a unified profession of lawyers and a separate one of notaries public (documents authentication function on behalf of the state). A good example of the divergences still existing in the EU legal profession is what has been unfortunately called the “monopoly of law.”
Three Systems within the EU
- Complete monopoly: advice and defense (e.g., Spain, France, Germany, Austria), where lawyers exercise a complete monopoly of legal services, both in legal representation and counsel;
- Partial monopoly (e.g., Belgium, Italy, Netherlands, United Kingdom, Ireland), where lawyers have a monopoly on legal defense or representation in court but not in legal advice; and
- No monopoly (e.g., Finland, Sweden) where lawyers exercise no monopoly on defense before courts or on advice so that any non-lawyer can exercise legal functions (although without using the title of advokat).
Problem Number 1
Disparity is the status of corporate in-house lawyers in the different EU Member States: i) in some countries (e.g., Spain), in-house lawyers have full status as a lawyer, as they are members of the bar and can advise and defend their clients in court, either on behalf of the company that they work with or other clients; ii) in other countries (e.g., UK, Ireland) in-house lawyers are members of bars or law societies but can not advise or defend anyone outside their employers, and iii) in other countries (e.g., France, Belgium), in-house lawyers are not members of the bar, cannot appear in court, and cannot even be called lawyers but “corporate jurists”.
The Service Directive 77/249 allows lawyers to cross borders within the EU, and provide temporary services, including advocacy services in local courts. In essence, it has permitted lawyers to follow their clients across borders in individual cases without prior notification or registration with the host bar. Only in connection with court procedures, Member States may require lawyers to be introduced to the presiding judge and to the president of the relevant Bar and to work in conjunction with a local lawyer or with an “avoué” or “procurador”.
Problem Number 2
The Diploma Directive 89/48 allows all professions (including lawyers) which have completed a university training over three years to obtain the diploma of a Member State other than his own through either an aptitude test or a period of adaptation. With regard to the legal profession, all Member States have opted for the aptitude test except Denmark that has opted for an adaptation period. So, it is necessary to obtain a degree and pass the aptitude test which may be a problem for lawyers who have obtained degrees to pass.
The Establishment Directive 98/5 is a radical liberalizing instrument which allows lawyers from one Member Sate to establish themselves in another Member State under their home title, without joining themselves in the local profession. Moreover, an established EU lawyer can acquire the local title by practicing local, including community law, for three years. Therefore, by being established and practicing local law for three years, lawyers can forego the necessity to take an aptitude test and can acquire the regional title more of less automatically. In spite of its complexity, the system which has been created is simple, unbureaucratic and very liberal and has therefore led to a high level of cross-border mobility of lawyers. This system provides a model of a liberalized market for professional services in the EU.
European Union law is a system of rules operating within the member states of the Europe. Since World War II, the EU has developed to achieve political institutions, social and economic policies, which transcend nation-states for the purpose of cooperation progress. According to its Court of Justice, the EU represents “a new legal order of international law.” The EU’s legal base are the Treaty on the European Union and the Treaty on the Functioning of the European Union, unanimously agreed by the governments of 28 member states. New members may join if they agree to play by the rules of the organization, and old members may leave according to their “own constitutional requirements.” People are entitled to participate in the Parliament, and their national governments in shaping the legislation the EU makes. The Commission has the initiative for legislation, the Council of the European Union represents member state governments, the Parliament is elected by European citizens, while the Court of Justice is meant to uphold the rule of law and human rights. As the Court of Justice has said, the EU is “not merely an economic union” but is intended to “ensure social progress and seek the constant improvement of the living and working conditions of their peoples.”
The Council of the Bars and Law Societies of the European Union (CCBE)
The great facilitator of the integration of the legal profession in Europe has unquestionably been the Council of the Bars and Law Societies of the European Union (CCBE). All the national bars and law societies of the 27 Members of the EU and of the 3 members of the European Economic Area (Norway, Liechtenstein, and Iceland) are full members of the CCBE, together with Switzerland. In addition, Bars from a number of other European countries are associate members (Council of Europe countries in official negotiations for accession to the EU) or observer members (other Council of Europe countries).
Joint practice within the EU with non-EU lawyers. The CCBE has agreed a position which provides for the foreign legal practitioner may associate with host country lawyers (from an EU Member State) and may be employed by host country lawyers, to the extent permitted by host country law for the joint exercise of the profession.
 The ECJ (cases AM&S 1988 and Akzo Nobel 2010) decided that corporate in-house lawyers did not enjoy the right and duty of confidentiality. Recently, on 6 September 2012, the Court of Justice of the EU expressed its views on the standing of in-house counsel before the Luxembourg Courts. The Polish telecommunications regulator was represented before the General Court by its in-house legal advisors, which had an employment relationship with the entity. The General Court considered that this fell short from the requirement in art. 19 of the Statute of the Court of Justice (which requires representation by a ‘lawyer’); the General Court’s decision was appealed to the Court of Justice which – concurring with the views of the General Court – stated that “The requirement of independence of a lawyer implies that there must be no employment relationship between the lawyer and his client (…)” and that “although (…) the conception of the lawyer’s role in the legal order of the EU derives from the legal traditions common to the Member States, in the context of disputes brought before the Courts of the EU, that conception is implemented objectively and is necessarily independent of the national legal orders.”