European and German dimension.

AuthorEdye, Christian E.
PositionBrussels, Belgium - Foreign Lawyers in Foreign Jurisdictions: Rights of Practice and Establishment

WHAT ARE the rights of practice for foreign lawyers in Europe. particularly the possibilities of European Union lawyers practicing law in another EU country and of American lawyers practicing in Germany and Belgium/Brussels, the latter an important center as headquarters of the KU'?

EU LAWYERS WITHIN THE EU

The European Union, formerly known as the European Community, now has 15 members following the accession of Austria, Finland and Sweden in January 1995 to join the 12 other members--Austria. Belgium, Denmark, Ireland, Germany, Finland, France, Greece, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden and the United Kingdom.

The basis of the EU is the 1957 Treaty of Rome' which formed the European Economic Community, known as the Common Market. The treaty states the basic principles for economic activities within the KU. Of these principles or "basic freedoms," the "Right of Establishment" (Article 52) and the "Freedom to Provide Services" (Article 59) grant the right to every EU citizen to set up a business or provide services in another member state.

The European Court of Justice in two decisions handed down in 1974 expressly decided that the provisions of Articles 52 and 59 also apply to lawyers and that these rules have a direct effect, without transformation into national law, within member states since January 1970.(10) However, different rules apply to both of these "basic freedoms," making it necessary to establish standards to distinguish the two.

In principle, while the freedom to provide services provision focuses on cross-border activities, the right of establishment applies to activities a foreign EU citizen engages in from an establishment within another EU country. In a case dealing with a German lawyer (rechtsanwalt) regularly working in Milan, Italy, the European Court of Justice held that where a lawyer or other professional from one EU member state practices on a stable and continuous basis from an establishment in another member state and his clients include nationals in the latter member state, he is to be treated as established there and his situation is governed by the treaty's rules on freedom of establishment rather than freedom to provide services.(11)

  1. Cross-border Legal Services

    The cross-border provision of legal services--that is, the non-regular activities of a lawyer admitted to the bar of one EU member state within another member state--is based on the Article 59 of the treaty, Subsection (1) of which provides:

    Within the framework of the provisions set out

    below, restrictions on freedom to provide services

    within the Community shall be progressively

    abolished during the transitional period in respect

    of nationals of member states who are established

    in a state of the Community other than that of the

    person for whom the services are intended.

    It follows from this provision that all discrimination against the providers of services based on their citizenship must be eliminated, and all restrictions must be abolished that, even if they apply without distinction to domestic and foreign services, may impede or make impossible the activities of a service provider who is domiciled in another member state. The free traffic in services may be restricted only by rules that are justified by mandatory reasons of the common good and are applied without distinction.(12)

    Restrictions on the freedom to provide services also must be seen in the light of the EC Council's 1977 Directive to Facilitate the Effective Exercise by Lawyers of Freedom to Provide Services.(13) That directive. in Article 1, Paragraph 2, lists the professions in the different member states that are deemed to be a "lawyer" and stipulates in Article 2 that each member state shall recognize such a lawyer for the purposes of the provision of legal services within its territory. Articles 3 to 7 then state the basic principles to be applied to the lawyers providing their services in another member state.

    While EU Regulations apply directly in member states, directives must be transformed into national law by the national parliaments. Germany, for example, implemented the 1977 directive in 1980 by way of the Law on the Services of Lawyers (Rechtsanwaltsdienstleistungsgesetz), which fortunately for ease is known as RADG.(14) This legislation governs the non-regular activities of lawyers from another member state in Germany.

    It stipulates in Section 2, Subsection (1), that the foreign lawyer will have to use the title or designation under which he is entitled to pursue his professional...

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