Amended proposal for a European Parliament and Council Directive to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained
COMMISSION OF THE EUROPEAN COMMUNITIES Brussels, 24. 09. 1996 COM(96) 446 final 94/0299 (COD) Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (presented by the Commission pursuant to Article 189 a (2) of the EC-Treaty) EXPLANATORY MEMORANDUM 1. GENERAL CONSIDERATIONS On 19 June 1996 the European Parliament delivered its opinion, at first reading as part of the co-decision procedure, on the proposal for a Directive to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained. those The Commission accepted Parliament's main amendments, particularly concerning the home-country the permanent character of establishment under professional title and the replacement of the aptitude test by a verification procedure for professional qualifications. It also took on board most of the other amendments presented by Parliament. The only amendments which it was unable to accept concerned four points which were of minor importance in the overall structure of the Directive but raised questions of principle. 2. ANALYSIS OF AMENDMENTS 1. The main amendments concern the permanent nature of the right to practise under the home-country professional title (amendment 10, concerning Article 2) and the replacement of the aptitude test by- a verification procedure for professional qualifications (amendment 35, concerning Article 10(2)). The permanent character of establishment under the home-country professional title was requested by Parliament's Legal Affairs Committee, inter alia in the light of the judgment handed down by the Court of Justice on 30 November 1995 in Case C-55/94 Gebhard v Milan Bar Council (see point 4. 2. 3 of this report). The Economic and Social Committee expressed the same view in its opinion dated 5 July 1995 on the proposal for a Directive, as did the Council of the Bars and Law Societies of the European Community (CCBE) on 17 November 1995. The replacement of the aptitude test by a verification procedure for professional qualifications is designed to make it easier for lawyers who have accumulated a certain amount of experience but do not have time to prepare for the aptitude test to obtain the professional title of the host country. It should also be noted that exemption from the aptitude test as proposed by the Commission where lawyers can prove that they have pursued an activity involving the law of the host Member State for at least three years was accepted by Parliament subject to a few amendments (amendment 24, concerning Article 10(1)). 2. The following amendments will entail major changes: salaried practice to be aligned on Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (amendments 22 and 23, concerning Article 8) and consolidation of the host Member State's powers to oppose groupings controlled by persons who are not members of the legal profession (amendment 27, concerning Article 11). The authorization of salaried practice except in the case of certain specified activities is in line with the wishes of ECLA (European Company Lawyers Association). The restrictions on multidisciplinary practice, which reflect the position adopted by the CCBE on 17 November 1995, are in keeping with the reservations raised by the Economic and Social Committee. 2 3. The amendments that the Commission was unable to accept provided for the inclusion of Dutch "procureurs" (amendment 28 ex. 7, concerning Article 1), the exclusion of lawyers who have responsibilities within a government department (amendment 9, Article 1), proof of honourability (amendment 12, concerning Article 3(2)) and the obligation for the host Member State to exempt migrant lawyers from the requirement to join its social security scheme (amendment 21, Article 6). The Commission rejected these amendments for the following reasons. Dutch "procureurs" do not carry out the same duties as advocates. The exclusion of lawyers with responsibilities within a government department is not necessary in order to ensure that the specific procedures of supreme courts are complied with by virtue of the possible requirement to work in conjunction with a lawyer who practises before the judicial authority in question, as provided for in Article 5 of the proposal for a Directive; furthermore, such exclusion would deprive those lawyers of the benefits of the Directive and might lead to further requests for exclusion, for example for actions before the social or tax courts. Proof that the party concerned meets the honour, seems honourability disproportionate in view of the safeguards already provided for in Article 3 (certificate attesting to his registration), Article 7 (disciplinary proceedings) and Article 13 (cooperation between the competent authorities in the home and host Member States) of the proposal for a Directive. Such proof is not required by Directive 77/249 to facilitate the effective exercise by lawyers of freedom to provide services. As regards the obligation for the host Member State to exempt lawyers from the requirement that they join its social security scheme, it is contrary to Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, self employed persons and their families moving within the Community,1 and in particular Articles 13 and 17 thereof. In addition, this Regulation, which is based on Articles 51 and 235 of the EC Treaty, can be amended only unanimously, which excludes it from the present competence of Parliament in the co-decision procedure. requirements associated with his duties and probity 3. CONCLUSIONS The amended proposal for a Directive takes account, in so far as possible, of the concerns expressed by the European Parliament, the Economic and Social Committee and the legal profession, represented by the CCBE. The European Parliament and the Council are invited to adopt the amended proposal as set out below: A consolidated version was published in OJ No C 325, 10. 12. 1992. 3 Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 49, Article 57(1) and the first and third sentences of Article 57(2) thereof, Having regard to the proposal from the Commission1, Having regard to the opinion of the Economic and Social Committee2. Acting in accordance with the procedure referred to in Article 189b of the Treaty3 ORIGINAL PROPOSAL AMENDED PROPOSAL (unchanged unless mentioned below) 1 OJ NoC 128 of 24. 5. 95, p. 6 :OJ NoC 256 of 2. 10. 95. p. 14 -" Opinion of the European Parliament of 19 June 1996, OJ N° C Common position of the Council of. 1996 (not yet published in the Official Journal) Decision of the European Parliament of. (not yet published in the Official Journal) ( 1 ) (2) the internal market pursuant the Treaty, Whereas, pursuant to Article 7a of the is Treaty, to internal comprise an area without to frontiers; whereas, Article 3(c) of the abolition, as between Member States, of obstacles to freedom of movement for persons and services constitutes one of the Community; whereas, for nationals of the Member States, this means among other the possibility of practising a profession, whether in a self-employed or a salaried capacity, in a Member State other than that in which they obtained their professional qualifications; objectives things the of of the recognition completion to Council Whereas, pursuant of Directive 89/48/EEC a general 21 December 1988 on system of for higher-education diplomas awarded on professional education and training of at least three years' duration,4 a lawyer who is fully qualified in one Member State may already ask to have his diploma recognized with a view to establishing himself in another Member State in order to practise the profession of lawyer there under the professional title used in that State; whereas the objective of Directive 89/48/EEC is to ensure that a migrant lawyer is integrated into the profession in the host Member State, and the Directive seeks neither to modify the rules regulating the profession in that State nor to remove such a lawyer from the ambit of those rules; O J N oL 19, 24. 1. 1989, p. 16. 5" (3) (4) (5) in the profession Whereas while some migrant lawyers may become quickly integrated into host the Member State inter alia by passing an for aptitude in test as provided others may Directive 89/48/EEC, envisage such integration at the end of a period of professional practice in the host Member State their home-country professional titles; under test aptitude as provided (3) Whereas while some migrant lawyers may become quickly integrated into the profession in the host Member State inter alia by passing an in Directive 89/48/EEC, others may envisage such integration after a certain period of professional practice in the host Member State under their home-country professional titles or else continue to practise under their home- country professional titles ; for (4)Whereas at the end of that period the migrant lawyer should be able to gain access to the profession after verification that he possesses professional experience in the host Member State; Whereas at the end of that period, which may not be longer than five years, the migrant lawyer should be able to gain access to the profession either automatically, where he has effectively practised the law of the host including for an unbroken Community period of three years, or, where that is not the case but where he can furnish evidence of professional experience in after host Member State, the undergoing a compensatory measure in the form of a simplified aptitude test; Member State law into integrate the profession (5)Whereas action along these lines is justified at Community level not only because, compared with the general system for the recognition of diplomas, it provides lawyers with an easier means whereby they can in a host Member State, but also because, by enabling lawyers to practise temporarily under their home-country professional titles on a permanent basis in a host Member State, it meets the needs of consumers of legal services who, owing to the increasing trade flows resulting from the internal market, seek advice when carrying out cross-border transactions in which law and domestic international law, Community laws often overlap; for the they practise recognition Whereas action along these lines is justified at Community level not only because, compared with the general system of diplomas, it provides lawyers with a new means whereby, after a transition period, the can profession on a permanent basis in a host Member State, but also because, to practise lawyers by enabling temporarily under their home-country professional titles, it meets the needs of consumers of legal services who, owing to the increasing trade flows the internal market, resulting from carrying out seek in which transactions cross-border international law, Community law and domestic laws often overlap; advice when (6) (7) in level because a is also justified at Whereas action few Community Member States already permit in their territory pursuit of the activities of lawyers, otherwise than by way of provision of services, by lawyers from other Member States practising under their home-country professional titles; whereas, the however, Member States where this possibility exists the practical details concerning, for example, the area of activity and to register with the the obligation differ authorities competent considerably; whereas such a diversity of situations leads to inequalities and in competition between distortions lawyers from the Member States and is of movement; whereas only a directive laying down the conditions governing practice of the profession, otherwise than by way of provision of services, their by lawyers practising under is home-country professional capable of resolving these difficulties same and affording of opportunities and to consumers of legal services in all Member States; the lawyers an obstacle freedom titles to in keeping with Whereas, its objective, this Directive does not lay down any rules concerning purely domestic situations, and where it does affect national rules regulating the legal profession it does so no more its than to achieve it purpose effectively; whereas is without national prejudice legislation governing access to and practice of the profession of lawyer under the professional title used in the host Member State; is necessary to \ (8) (9) lawyers covered by required should be this Whereas Directive to register with the competent authority in the host Member State in order that that authority might ensure that they abide by the rules of professional conduct in force in that State; whereas the effect of such registration as regards the jurisdictions in which, and the levels and types of court before which, is determined by the law applicable to lawyers in the host Member State; lawyers may practise Whereas lawyers who are not yet full integrated into the profession in the host Member State should practise in that State under their home-country professional titles so as to ensure that consumers are properly informed and to distinguish between such lawyers host and the Member State practising under professional title used there; lawyers from the 9 (10) Whereas as be and under made, Ireland allowed practising lawyers covered by this Directive should be permitted to give advice on the law of their home Member States, on Community law, on international law and on the law of the host Member State; whereas this is already under Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services5, as last amended by the Act of Accession of Austria, Finland and Sweden, as regards the provision of services; whereas, however, provision should in Directive 77/249/EEC, for the option of excluding from the activities of lawyers their home-country professional titles in the United Kingdom the formal of preparation documents in the conveyancing and this probate the Directive provisions under which, in every Member State, certain activities are reserved for professions other than the the legal in Directive 77/249/EEC provision the host concerning the right of Member State lawyer practising under his home-country professional in conjunction with a local lawyer when representing or defending a client in legal proceedings should also be incorporated this Directive; whereas that requirement must be interpreted in the light of the case law the of European Communities, in particular its judgment of 25 February 1998 in Case 427/85 Commission v Germany^; spheres; whereas in no way affects the Court of Justice to require a profession; to work whereas certain title of in (11) Whereas the list of professional titles used in Italy must be extended to include procuratore legale, as such persons now carry on the same activities as an avvocato; 5 OJ No L 78, 26. 3. 1977, p. 17. 6(1988)ECR, p. 1123. « the (12) Whereas a lawyer registered under his home-country professional title in the host Member State must remain registered with competent authority in his home Member State if he is to retain his status of lawyer and be covered by this Directive; whereas for that reason close collaboration between the competent authorities is indispensable, notably in connection with any disciplinary proceedings; (13) Whereas lawyers covered by this Directive may, irrespective of their status of salaried or self-employed lawyers in their home Member States, practise as salaried lawyers in the host Member State that Member State offers this possibility to its own lawyers; where lawyers covered by (13) Whereas this Directive may, as in Directive 77/249/EEC, where they practise as salaried lawyers, be excluded from certain activities in the host Member State where that Member State also excludes its own lawyers from such activities; \o in the effective pursuit (14) Whereas the purpose pursued by this Direc Court of Justice the host Member State must into consideration any professional take experience gained in its territory; whereas, after the host Member State regularly for a period of three years of an activity involving the law of that State including Community law, it is reasonable to assume that a lawyer will have gained sufficient experience to become fully there; integrated whereas at the end of that period the migrant lawyer should be able to gain access to the profession where he can, after verification, furnish experience of professional experience in the host Member State; into the legal profession into restriction consideration in enabling temporarily lawyers in under (14) Whereas the purpose pursued by this to Directive another practise Member State their home-country professional titles is to make it easier for them to practise the in profession without accordance with Directive 89/48/EEC; whereas under Articles 48 and 52 of the Treaty as interpreted by the Court of Justice the host Member State must take any professional experience gained in its territory; whereas, after the effective pursuit in the host Member State for an unbroken period of three years of an activity involving the law of that State including Community law, it is reasonable to assume that a lawyer will have gained sufficient experience to become fully integrated into the legal profession there; whereas total exemption from any compensatory measures be automatically granted, whereas, if the unbroken period of activity in the host Member State does not involve the State, law including the compensation Community to an measures must be aptitude test on the law of procedure and the rules of professional conduct in the host Member State. that law, therefore limited must of Deleted (15) Whereas lawyers practising under their home-country professional titles must be afforded the opportunity of attending lectures or seminars in the host Member State so that they might acquire a knowledge of that State's law, including the rules regulating professional practice and conduct, or add to their existing knowledge in those areas; w (16) Whereas, in to their practise a grouping economic there for and is a reasons, professional growing tendency for lawyers in the Community jointly; whereas the fact that lawyers belong to home Member State should not be used as a pretext to prevent or deter them from establishing themselves in the host Member State; whereas Member States should be allowed, however, to take appropriate measures of legitimate with profession's the safeguarding certain independence; whereas guarantees should be provided in those Member States which permit joint practice ; aim the in for there reasons, economic to a grouping (15) Whereas, and is a growing professional tendency for lawyers in the Community to practise jointly; whereas the fact that lawyers their home belong Member State should not be used as a pretext to prevent or deter them from establishing themselves in the host Member State; whereas Member States should be allowed, however, to take appropriate measures with the legitimate aim profession's independence; whereas certain guarantees should be provided in those Member States which permit joint practice ; safeguarding the of HAVE ADOPTED THIS DIRECTIVE: Artkk I Object, scope and definitions The purpose of this Directive is to facilitate practice of the profession of lawyer on a permanent basis in a self-employed or salaried capacity in a Member State other than that in which the professional qualification was obtained. 2. For the purposes of this Directive : (a) "lawyer" means any person who is a national of a Member State and who is authorized to pursue his professional activities under one of the following professional titles: Belgium: Denmark: Germany: Greece: Spain: France: Ireland: Italy: Avocat Advocaat Rechtsanwalt Advokat Rechtsanwalt ôtxrryoQoç Abogado Spain: Abogado/Advocat/Avogado/Abokatu Avocat Barrister Solicitor Avvocato Procuratore legale Luxembourg: Avocat Netherlands: Advocaat Portugal: Advogado Austria Rechtsanwalt Finland, Asianajaja/Advokat \h Sweden Advokat United Kingdom: Advocate Barrister Solicitor. in which a the "home Member State" means Member State lawyer acquired the right to use one of the professional titles referred to in (a) before practising the profession of lawyer in another Member State. "host Member State" means Member State practises pursuant to this Directive. in which a the lawyer professional "home-country title" means the professional title used in the Member State in which a lawyer acquired the right to use that title before practising the profession of lawyer in the host Member State. "grouping" means any entity, with or formed legal personality, without under the law of a Member State, within which their professional activities jointly under a joint name. lawyers pursue (b) (c) (d) (e) (ea) "relevant professional title" or "relevant profession" means the professional title or profession competent authority with whom a lawyer has registered under Article 3, and "relevant competent authority" means that authority. governed the by H This Directive shall apply both to lawyers practising in a self-employed capacity and to lawyers practising in a home salaried Member State to Article 8, in the host Member State. the subject capacity and, in Practice of the profession of lawyer within the meaning of this Directive include the provision of shall not services, which by is Directive 77/249/EEC. covered Article 2 Temporary right home-country professional title to practise under the Right to practise under the home-country professional title in any five years Any lawyer shall be entitled to pursue for other Member State under his home-country professional activities specified in Article 5. Practice on a host permanent basis to Member State shall be subject Article 10. title the the in Any lawye» shall be entitled to pursue on a permanent basis in any other Member State under his home-country professional title the activities specified in Article 5. Integration into the profession of lawyer in the host Member State shall be subject to Article 10. l^ Article 3 Registration with the competent authority 1. A lawyer who wishes to practise in a Member State other than that in which he professional qualification shall register with the competent authority in that State. obtained his The competent authority in the host Member State shall register the lawyer upon presentation of a certificate attesting to his registration with the competent authority the home Member State. It may require that, when presented, the certificate be not more than three months old. It shall inform the competent authority in the home Member State the registration. of in of the purpose applying For paragraph 1 in the United Kingdom and Ireland, lawyers practising under a professional title other than those used in the United Kingdom or Ireland shall the authority register either with the profession of responsible the barrister or advocate or with the authority profession of solicitor. responsible for for lawyer who, wishes than in a l. A in which he Member State other obtained his professional qualification shall register with the relevant competent authority in that State. to practise that 2. The relevant competent authority in the host lawyer upon Member State shall register the presentation of a certificate attesting to his registration with the relevant competent authority in the home Member State. It may require that, when presented, the certificate be not more than It shall inform the relevant three months old. competent authority in the home Member State of the registration. IC of for the purpose authority responsible For applying paragraph 1 in the United Kingdom, the a barrister from Ireland shall be that responsible the profession of barrister or advocate, and the authority responsible for a solicitor from Ireland shall be the that responsible profession of solicitor. for for For the purpose of applying paragraph 1 in Ireland, the authority for a barrister or an responsible the United Kingdom advocate from the that responsible shall be profession the of barrister, authority responsible for a solicitor from the United Kingdom shall be that responsible the profession of solicitor. for and for 4. Where the competent authority in a the host Member State publishes names of lawyers registered with it, it shall also publish the names of lawyers registered pursuant to this Directive. 4. Where the relevant competent authority in a the names of host Member State publishes lawyers registered with it, it shall also publish the names of lawyers registered pursuant to this Directive. \lr Article 4 Temporarv practice under the home-countrv professional title Practice under the home-country professional title lawyer practising A in a host Member State under his home-country professional title shall do so under that title expressed in the official language or one of the official languages of his home Member State. 1. A lawyer practising in a host Member State under his home-country professional title shall do so under that title, which must be expressed in the official language or one of the official languages of his home Member State, in an intelligible manner and in such a way as to avoid confusion with the professional title of the host Member State. A host Member State may require a lawyer practising under his home- country professional title to indicate the professional body of which he is a member in his home Member State or the judicial authority before which he is entitled to practise pursuant to the laws of his home Member State. A host Member State may also require a his lawyer home-country professional to include a reference to his registration with the competent authority in that State. practising under title his under 2. For the purpose of applying paragraph 1, a host Member State may require a lawyer practising home-country professional title to indicate the professional body of which he is a member in his home Member State or the judicial authority before which he is entitled to practise pursuant to the laws of his home Member State. A host lawyer Member State may also require a practising home-country professional title to include a reference to his registration with the competent authority in that State. under his Deleted Where there is a risk of confusion with the professional title used in the host Member State, the competent authorities in that State may ask that a reference to the home Member State be added. itf Article 5 Area of activity 1. the under practising to paragraphs 2 and 3, a Subject lawyer his home-country professional title shall same professional carry on activities as a lawyer practising under the professional title used in the host Member State and may inter alia give law of his home advice on Member State, on Community law, on international law and on the law of the host Member State. the 1. Subject lawyer to paragraphs 2 and 3, a practising under his home-country professional the same professional title shall carry on the activities as a relevant professional the host Member State and may inter alia give advice on the law of his home Member State, on Community law, on international law and on the law of the host Member State. lawyer practising under title used in Member States which authorize in their territory a prescribed category of lawyers to prepare formal documents for obtaining title to administer estates of deceased persons and for creating or transferring interests in land which, in other Member States, are reserved for professions other than that of such lawyer may exclude activities lawyers practising under a title home-country conferred latter Member States. professional the in one of from in authorize 2. Member States which their territory a prescribed category of lawyers to prepare deeds for obtaining title to administer estates of deceased persons and for creating or transferring interests in land which, in other Member States, are reserved for professions other than that of lawyer may exclude from such activities a home-country professional title conferred in one of the latter Member States. practising lawyers under a as the law of lawyer mandatory, For the pursuit of activities relating to the representation or defence of a client in legal proceedings and in so far host the representation Member State makes that by Member State may require lawyers practising under their home-country in professional conjunction with a lawyer who practises before the judicial authority in question and who would, where necessary, be answerable that authority or with an "avoué" or "procuratore" practising before it. to work titles to For the pursuit of activities relating to the representation or defence of a client in legal proceedings and in so far as the law of the host Member State reserves such activities to lawyers practising under the professional title of that State, the latter may require lawyers practising under their home-country professional titles to work in conjunction with a lawyer who practises before the judicial authority in question and who would, where necessary, be answerable to that authority or with an "avoué" or "procuratore" practising before it. 3. \°v Article 6 Rules of professional conduct applicable 1. 2. of the rules of Irrespective professional conduct to which he is subject in his home Member State, a lawyer practising under his home- country professional title shall be subject to the rules of professional conduct of the host Member State in respect of all the activities he pursues in its territory. 1. Irrespective of the rules of professional conduct to which he is subject in his home Member State, a lawyer practising under his home-country professional title shall be subject to the same rules of professional lawyers practising under the relevant professional title of the host Member State in respect of all the activities he pursues in its territory. conduct as Lawyers practising under their home- country professional titles shall be granted appropriate representation in the professional associations of the host Such representation shall involve at least the right to vote in elections to those associations' governing bodies. Member State. 2o its fund The host Member State may require a lawyer practising under his home- country professional title either to take out professional indemnity insurance to become a member of a or professional in guarantee accordance with the rules which that for professional State lays down activities pursued territory. in lawyer practising Nevertheless, a under his home-country professional title shall be exempted from that requirement if he can prove that he is covered by insurance taken out or a guarantee provided in accordance with the rules of his home Member State, in so insurance or guarantee is equivalent in terms of the conditions and extent of cover. Where the equivalence is only partial, the competent the host authority that Member State may additional insurance or an additional guarantee be contracted to cover the elements which are not already covered by the insurance ors guarantee contracted the in accordance with rules of the home Member State. in require far as such l\ Article 7 Disciplinary proceedings title In the event of failure by a lawyer practising under his home-country professional the the host force obligations Member State, the rules of procedure, penalties and remedies provided for in the host Member State shall apply. fulfil in in to 3. 4. initiating disciplinary Before the lawyer, proceedings against a the host competent authority the Member State shall competent authority the home Member State as soon as possible, furnishing it with all the relevant details. in inform in shall authority Without prejudice to the decision the competent making power of authority in the host Member State, cooperate that disciplinary throughout the competent proceedings with authority in the home Member State. In particular, the host Member State shall take the measures necessary to ensure that the competent authority in the home Member State can make submissions to the bodies responsible for hearing any appeal. the The competent authority in the home Member State shall decide what action to take, under its own procedural and substantive rules, in the light of a decision of the competent authority in the host Member State concerning a lawyer practising under his home- country professional title. 1-L 5. or the temporary Although it is not a prerequisite for competent of the decision authority in the host Member State, the permanent withdrawal by the competent authority in the home Member State of the authorization the to profession shall automatically lead to being the temporarily or permanently prohibited from practising under his home- country professional title in the host Member State. concerned practise lawyer *) n Article 8 Salaried practice in a host registered lawyer A Member State home- his under country professional title may practise as a salaried lawyer in the employ of another lawyer, an association or firm of lawyers, or a public or private enterprise host where Member State so permits for lawyers registered under the professional title used in that State. the Article 9 Statement of reasons and remedies A lawyer registered in a host Member State under his home-country professional title may practise as a salaried lawyer in the employ of another lawyer, an association or firm of lawyers, or a public or private enterprise. Any Member State may exclude salaried lawyers in the employ of a public or private the activity of enterprise representation the in administration of justice for that enterprise, if lawyers established in the host Member State are not authorised to pursue that activity. from pursuing or defence registration Decisions not to effect the registration referred to in Article 3 or to cancel such decisions imposing disciplinary measures shall state the reasons on which they are based. and A remedy shall be available against such decisions before a court or tribunal the provisions of national law. in accordance with *Y Article 10 Integration Member State as a lawyer of the home under his 1. for lawyer pursued effectively Member State A practising home-country professional title who an has unbroken period of at least three years an activity involving thé law of the host including Community law shall, with a view to to his the gaining the host profession of there Member State and practising under title corresponding to the profession in that State, be exempted from any aptitude test which may be required under Article Directive 89/48/EEC. admission in lawyer professional 4(1 )(b) the of least under lawyer practising A his home-country professional title who has effectively pursued regularly for a period of at three years an activity involving the law of the host Member State including Community law shall, with a view to his gaining admission to the profession of lawyer in and the host Member State practising there under the professional title corresponding to the profession in that State, be exempted from the conditions set out in Article 4(1 )(b) of Directive 89/48/EEC. It shall be for the lawyer concerned to furnish proof of such effective pursuit for an unbroken period of at least three years of an activity involving the law of the host Member State. To that end, he shall provide the competent authority in the host Member State with any relevant information and documentation, notably on the number of cases he has dealt with and their "Effective pursuit for an nature. unbroken actual exercise of the activity without any interruption other than that resulting from the events of everyday life. period" means It shall be for the lawyer concerned to furnish proof of such effective pursuit regularly for a period of at least three years of an activity involving the law of the host Member State. To that end, he shall provide the relevant competent authority in the host Member State and with documentation, notably on the number of cases he has dealt with and their nature. "Effective and regular pursuit " means actual exercise of any interruption other than that resulting from the. events of everyday life. activity without information relevant any the 2^ in A lawyer practising under his home- country professional title who has effectively pursued for an unbroken three years a least period of at professional the host activity Member State may be required, in accordance with Article 4(1 )(b) of Directive 89/48/EEC only to take an aptitude test limited to the law of of procedure rules professional conduct of the host Member State. and the lawyer A under his practising home-country professional title may apply at any time during the five-year period referred to in Article 2 to have his diploma recognized pursuant to Directive 89/48/EEC with a view to gaining permanent admission to the profession of the host lawyer Member State and practising it under the professional title used in that State. in any attendance by When it examines an application, the competent authority shall take into account the applicant at lectures or seminars on the law of the host Member State, regulating including professional practice and conduct. rules the 2. A lawyer practising under his home-country professional title in a host Member State may, at any time, apply to have his diploma recognized in accordance with Directive 89/48/EEC with a view to gaining admission to the profession of lawyer in the host Member State and practising it under the professional title corresponding to the profession in that Member State. title, who has effectively 3. A lawyer practising under his home-country professional and regularly pursued a professional activity in the host Member State for a period of at least three years may obtain from the relevant competent authority of that State admission to the profession of lawyer in the host Member State and the right to practise it under the professional title corresponding to the profession in that host Member State, under the conditions and in accordance with the procedures set out below : (a) The relevant competent authority shall take into account the effective and regular professional activity pursued during the abovementioned period and any knowledge and professional experience of the law of the host Member State, and any attendance at lectures or seminars on the law of the host Member State, the rules regulating professional practice and conduct. including the relevant (b) The applicant shall provide competent authority with any relevant information and documentation, notably on the cases he has dealt with. The competent authority of the host the Member State may, information provided, require to undergo an interview. to verify the applicant in order the applicant 4. The relevant competent authority of the host Member State may, by reasoned decision subject to appeal under national law, refuse to allow these provisions, if it considers that this would not be in the public interest, notably because of disciplinary proceedings, or incidents of any kind. the benefit of complaints JUL. The representatives of the competent the authority the examination confidentiality of any information received. entrusted shall with preserve A lawyer who gains admission to the profession of the host in lawyer in accordance with Member State paragraphs 1 to 5 shall be entitled to use his home-country professional title, expressed in the official language or one of the official languages of his home the professional in the host Member State. title used alongside country, 5. The representatives of the relevant competent authority entrusted with consideration of the application shall preserve the confidentiality of any information received. 6. A lawyer who gains admission to the profession of lawyer in the host Member State in accordance with the above paragraphs shall be entitled to use his home-country professional title, expressed in the official language or one of the official languages of his home country, alongside the professional title corresponding to the profession of lawyer in the host Member State. 2* Article 11 Joint practice Where joint practice is permitted in the host Member State, in it must accordance with the following rules. take place Where joint practice is authorized in respect of lawyers carrying on their activities under the relevant professional in the host Member State, the following provisions shall apply in respect of lawyers wishing to carry on activities under that title or registering with in the relevant competent authority respect of that title. title 1) One or more lawyers who belong to the same grouping in their home Member State and who practise under their home-country professional title in a host Member State may pursue their professional activities in a branch or agency of their grouping in the host Member State. However, where the fundamental that grouping in the home Member State are incompatible with the fundamental rules laid down by law, regulation or administrative action the host Member State, the latter rules shall prevail far as compliance therewith is justified by the public interest in protecting clients and third parties. rules governing in so in 2K 2) professional Each Member State shall afford two or more lawyers from the same grouping or the same home Member State who practise in its territory under their titles home-country access to a form of joint practice. If the host Member State gives its lawyers a choice between several legal forms in which to practise, those same shall also be made legal available aforementioned the lawyers. The manner in which such lawyers practise jointly in the host Member State shall be governed by the and administrative provisions of that State. forms to regulations laws, 3) The host Member State shall take the measures necessary to permit joint practice also between : (a) several lawyers from different Member States practising under their home-country professional titles; (b) one or more lawyers covered by and one or more host the from- point (a) lawyers Member State. jointly The manner in which such lawyers practise host Member State shall be governed by the and administrative provisions of that State. regulations laws, the in 4) A lawyer who wishes to practise under title his home-country professional shall inform the competent authority in the host Member State of the fact that he is a member of a grouping in this home Member State and furnish any that grouping. information on relevant i°\ 5) which Notwithstanding points 1-4, a host prohibits Member State practice of the profession of lawyer within a grouping controlled by persons who are not members of the to allow a profession may refuse his lawyer under home-country professional to practise in its territory in his capacity as a member of his grouping if the decision-making that grouping is exercised preponderantly by persons who do not have the status of lawyer. registered power title in Article 12 Name of the grouping in which the manner lawyers Whatever practise under their home-country professional titles in the host Member State, they may employ the name of any grouping to which they belong in their home Member State. The host Member State may in addition to that name, mention be made of the legal form of the grouping in the home Member State and/or of the names of any members of the grouping practising in the host Member State. require that, which registered Notwithstanding points 1-4, a host prohibits Member State practice of the profession of lawyer within a grouping controlled by persons who are not members of the to allow a profession may refuse his lawyer under home-country professional to practise in its territory in his capacity as a member of his grouping if the capital of the grouping is held, the name under which it practises is used, or the decision-making power in that grouping is exercised, de facto or de jure, by persons who do not have the status of lawyer within the meaning of Article 1(2) of this Directive. title State home Member Where the fundamental rules governing a grouping of lawyers in are the incompatible with the rules in force in the host Member State or. with the provisions of the first subparagraph of this point, the host Member State may oppose the opening of a branch or agency within its territory without the restrictions laid down in Article 11(1). 5) 2>o Article 13 Cooperation authorities between the competent in the home and host Member States In order to facilitate the application of this Directive and to prevent its provisions from being misapplied for the sole purpose of circumventing the rules applicable in the host Member State, the competent authority in the host Member State competent authority in the home Member State shall collaborate closely and afford each other mutual assistance. They shall preserve the confidentiality they the exchange. information and the of Article 14 Designation of the competent authorities for the Member States shall designate, within the in Article 15, period provided competent authorities empowered to receive the applications and to take the decisions referred to in this Directive. They shall communicate this information to the other Member States and to the Commission. %\ laws, regulations Member States shall-bring into force the and administrative provisions necessary to comply with this Directive by 31 December shall immediately inform the Commission thereof. 1997. They Article 15 Implementation laws, regulations Member States shall bring into force the and administrative provisions necessary to comply with this Directive by 31 December shall immediately inform the Commission thereof. 1996. They these When Member States adopt provisions, these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States. 2. Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field covered by this Directive. 32- J Article 16 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the European Communities. the Official Journal of Article 17 Addressees This Directive Member States is addressed to the Done at Brussels, For the European Parliament For the Council The President The President 3>i ISSN 0254-1475 COM(96) 446 final DOCUMENTS EN 10 Catalogue number : CB-CO-96-454-EN-C ISBN 92-78-08793-9 Office for Official Publications of the European Communities L-2985 Luxembourg *Y