The Gazette 1976

GAZETTE

March 1976

Address by the President, P. J. De Brauw, at the occasion of the 15th anniversary of the Commission Consultative In a few days it will be fifteen years since the Com- mission Consultative held its first meeting. I felt this was an occasion to which we should give some attention and 1 will ask your permission to say a few words on the period behind us, which is long enough to dis- tinguish the first signs of perspective. I also felt that perhaps it would be a good thing if your President, at the end of his term, gives his personal view on the position of the Commission Consultative and what he expects of its future. I feel that we can see a clear development in two different ways. First of all in the composition of the Commission Consultative. Created thanks to the initiative of the Union Internationale des Avocats, for which we cannot be too grateful, the delegations re- flected strongly the representatives of the Union in the six countries of the Community. In many delegations one found advocates who were experienced in inter- national matters — the resolutions were marked by a very general approach in matters concerning advocacy and, also, by a thorough, though theoretical study of the Treaty of Rome. This situation changed in my opinion when the Bars were confronted with a first draft for a Directive and they became aware of the practical consequences of the implications of these decisions have been considered on more than one occasion by the Commission Consul- tative as a result of which they had a meeting with an official M. Massoth of the EEC Commission in Berlin. M. Massoth is the "Chef de Division á la Direction Generale X I I " of the EEC Commission. Views were expressed in considerable detail on the text of the draft Directive as it then stood. M. Massoth took note of these, but unfortunately there was a subsequent change in the terms of the draft Directive which only came to light before the meeting in Dublin. One of the most important matters was whether or not a lawyer providing services in a country of the EEC Community other than his own was to be subject to the "deontology" of both his home and the foreign country. The draft Directive envisages that he will be subject to "double deontology" in relation to Court appearances but not in relation to anything else. Italy through their representatives Maitres Biamonti and Baldi, supported vigorously by Belgium and Luxem- bourg, took the view that the visiting laywer must be controlled in all respects by the host country. While Britain, supported by Germany and the Netherlands were prepared to accept the principle of double deon- thology, they firmly drew the line at anything which involved the limitation of "capacité" or what a lawyer is permitted to do, and took the view that if he were permitted to perform a function in his home country, he should be permitted to do it in the host country. An instance of what they had in mind was the ques- tion of whether an English solicitor who is entitled to act both as a solicitor and as a managing director of a company in England would not be entitled to do that, if he were to be considered an avocat, and subject to the control of the deontology applicable in some Continental countries to avocats. The English solicitor

coordination and harmonisation. Meanwhile the Com- mission Consultative functioned as an organ of the combined Bars; its resolutions got quasi-political significance. Meanwhile also, the composition of most of the delegations had obtained a more official character. The members were appointed by the pro- fessional organisations, they felt themselves represen- tatives of their organisation rather than pioneers of a European Bar. Positions were not abandoned except under the utmost reservations. Not the greatest common divisor, but the lowest common denominator became the contents of the resolutions. Nevertheless a positive development can be dis- tinguished. On several points there is always a common opinion, points which are, especially now, of para- mount importance. It has always been communis opinio that the autonomy of each Bar, on each level, should be maintained as a principle, in so far as admitted by the superior organisations also, that, if at all possible, a double discipline should be accepted as a principle in cases where one was in practice outside one's own country. Not the least part of the studies which were made under the auspices of the Commission Consultative has been directed to the elaboration of these principles. It is clear that we have not chosen the easiest way, but in any event it seems to me to be the best way. On the one hand it is better that national views are defended and not givetn up before that has been proved unavoidable, on the other hand it is necessary that certain safeguards for the most essential characteristic (continued on opposite page) could negotiate fees for the provision of mortgages. This was not available to some of the Continental lawyers, and a Scottish solicitor is even entitled to act as an estate agent. As a compromise, it might be poss- ible to establish a Regional Convention. After a very considerable discussion in Dublin and a considerable amount of behind the scenes negotiation the terms of a Resolution which would be acceptable to all was worked out. This Resolution was passed with a request that the President's letter to the EEC Commis- sion forwarding this Resolution should express regret at the change which had been made by the EEC Commis- sion from the text commented on in Berlin, without any consultation with the Commission Consultative. At the request of the British delegation, a reminder was also sent that at least one delegation had had reservations on the "Berlin Text". Since the November meeting in Dublin the draft Directive has been considered by the Economic & Social Committee and a vote by the European Parliament relating to this is likely by the time this article appears. One anxiety of the Commission Consultative in relation to this intricate matter is that it is of primary importance that lawyers who are the only ones really capable of understanding the problems involved should have both the opportunity and the means of controlling the practice of lawyers within the EEC. Closely associated with the draft Directive is the question of Bilateral Agreements between Bars of two or more different countries regulating the activities of lawyers belonging to such Bars in the area of the other Bars as well as a system for arbitration and advice which the Commission Consultative set up last year. It is hoped to publish further articles on these two subjects subsequently.

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