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EUROPEAN SECTION
Irish Lawyers In Europe
Right of Establishment and Free Supply
of Services
by ERIC A. PLUNKETT
The provision of the Rome Treaty and the various
protocols attached to it will be of great importance to
Irish solicitors now that Ireland has joined the Com-
munity. This involves obligations as well as privileges
and it is a matter of opinion whether the obligations
imposed upon the profession in Ireland following on
competition from foreign lawyers will confer a benefit
or involve a disadvantage for the profession in Ireland.
It is however necessary to face the position that the
Treaty when finally operative will require a removal of
the restrictions which at present exist on complete
freedom of movement of professional men between the
countries in the Community.
Removal of restrictions on freedom of establishment and
free supply of services
(a)
Background
The Treaty of Rome was signed on 25th March
1957. The transitional period is twelve years which may
be extended to a maximum period of fifteen years.
There are three stages in the transitional period of four
years each.
Articles 53-54 dealing with the abolition of restric-
tions on the right of establishment provides that restric-
tions are to be abolished by progressive stages in the
course of the transitional period. This means in effect
that when the Treaty is fully implemented companies,
firms and professional people will be entitled to set up
business in any part of the Community on a per-
manent basis.
Articles 59 and 60 provide for the removal of restric-
tions on freedom to provide services within the Com-
munity. Services include in particular those provided
by professional men. The restrictions are to be pro-
gressively abolished during the transitional period.
Article 55 provides that the restrictions with regard
to freedom of establishment and free supply of services
are not to apply to occupations which involves even
occasionally the exercise of official authority. There
has been an argument in the Community as to whether
this includes the practice of the legal profession which
in some States has been regarded as an exercise of
official authority.
The Council of the Community on 25th October
1961 adopted a general programme for the removal of
restrictions on freedom of establishment Head III pro-
vides that all prohibitions and impediments whether
resulting from legislative or administrative provisions
or practices are to be removed in accordance with a
time table which is specifically applicable to legal
advisers and tax consultants.
On the same date the Council adopted a general
programme for the removal of restrictions of the free
supply of services and for the reciprocal recognition of
diplomas and degrees. (This matter is also dealt with
in article 57 of the Treaty). It seems that as far as the
legal profession is concerned it has not been found
possible to implement fully the time table set out in
these programmes.
Freedom of establishment carries the right to set up
offices throughout the E.E.C. The freedom to supply
services relates to occasional professional services for
particular clients.
(b)
Draft directives of E.E.C. Commission
On 17th April 1969 the Commission of the E.E.C.
submitted a draft directive on the terms and conditions
of achieving freedom to supply services in respect of
certain activities of the barrister-at-law (avocat). Free-
dom to supply services is an activity of temporary or
intermittent character as distinct from freedom of
a permanent nature. At this stage it may be pointed
out that owing to the fact that there is only one type
of lawyer on the Continent known generally as advocate
who discharges the functions of both solicitor and bar-
rister and as neither the U.K. nor Ireland were parties
to the Treaty or conventions thereunder the various
documents do not distinguish between the profession of
barrister and solicitor. Now that Great Britain and Ire-
land have joined the E.E.C. this matter must be resolved.
The draft directive recites that the effective freedom of
establishment must be preceded by the mutual recogni-
tion of diplomas and therefore freedom of establish-
ment must be left to later directives. The draft directive
stated that the member states should eliminate all
restrictions mentioned on title 3 of the programme on
the activities of advocates consisting of:
(1) consultation activities,
(2) free oral exposition before the Courts, access to
relevant files, visiting detained persons and
attending at preliminary hearings and the mem-
ber states are to take the necessary action to give
legal effect to these proposals within one year.
These provisions relating to freedom to supply ser-
vices are to come into operation in advance of freedom
of establishment. As regards Court appearances the
visiting lawyer must be introduced to the Court accord-
ing to the usages of the local Bar and must act in
concert with the barrister or solicitor who is a national
of the receiving member state. Any requirement that the
foreign lawyer must be registered with the professional
organisation of the receiving state is to be abolished
but the professional organisation is entitled to require
evidence as to his professional status and reputation.
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