400 / 432
GAZETTE
AUGUST/SEPTEMBER
1994
Fr eedom t o Prov ide Legal Serv i ces and
t he Right of Es t ab l i shment of
Lawye rs in t he European Un i on
By Bernard O'Connor*
In this article on the free movement of
lawyers, the Treaty provisions, the
ease law, the Services Directive, the
right of establishment and the
Diplomas Directive will be examined
in turn.
The Treaty Provisions
The provisions of the EC Treaty
which are relevant to cross-border
legal practice are set out in Chapter 2
(Articles 52-58) on Establishment,
and Chapter 3 (Articles 59-66) on
Services.
The fundamental right of
establishment is provided by Article
52 EC as follows:
"(. . . ) restrictions on the freedom
of establishment of nationals of a
Member State in the territory of
another Member State shall be
abolished by progressive stages in
the course of the transitional period.
Such progressive abolition shall also
apply to restrictions on the setting
up of agencies, branches, or
subsidiaries by nationals of any
Member State established in
the territory of any Member
State (. . .)."
The freedom to provide services is
provided for in Article 59 EC as
follows:
"(. . .) 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 (. . .)."
The Case Law of the Court of
Justice
As often has been the case in the
development of Community law and
policy it has been the Court of Justice
that has led the way in giving dynamic
effect to basic Treaty provisions. The
direct applicability of Articles 52 and
59 of the EC Treaty was established in
the early 1970's.
In
Reyners
-v-
Belgium,
Case 2/74
[1974] ECR 631, the Court ruled that
Article 52, on the Right of
Establishment, was directly applicable
and that the Public Service Exemption
did not apply to the profession of
"avocat", even though lawyers might
well perform duties connected with
the exercise of official authority such
as invigilating at elections or
obtaining title to administer estates.
In the case in question Mr Reyners, a
Dutch national who had qualified
in Belgium, was successful in
impugning a Belgian nationality
requirement for entry into the
profession in Belgium.
In
Van Bisbergen
-v-
Bestuur van de
Bedriffsvereniging
voor de
Metaalnijverheid,
Case 33/74 [1974]
ECR 1299, the Court ruled that
Article 59 EC was directly applicable.
The refusal therefore to allow Mr Van
Bisbergen, a Dutch lawyer, to
appear before a Dutch tribunal
because he did not fulfil a Dutch
residency requirement was a
breach of the freedom to provide
services.
The problem of the equivalence of
diplomas for the purposes of
establishment was addressed in
Thieffry
-v-
Conseil de I'Ordre des
Avocats á la Cour de Paris,
Case
71/76 [1977] ECR 765, where the
Court ruled that the refusal by the
Paris Bar to admit a trainee because
he had a Belgian diploma, even
though the degree was recognised in
France to be equivalent, was
discriminatory. As will be seen below,
this case spurred the Council to adopt
the Directive on mutual recognition of
diplomas.
The issue of practising in more than
one Member State and being subject
to the discipline of more than one Bar
was addressed in
Ordre des Avocats
au Barreau de Paris -v- Klopp,
Case
107/83 [1984] ECR 2971. Here the
Court ruled that the refusal by the
Paris Bar to admit Mr Klopp, who had
satisfied all requirements for
admission, on the sole ground that he
intended to retain his German
qualification and continue practising
in Germany, was unlawful.
The problem of discipline was again
addressed in the curious French case,
Gulling -v- Conseils de 1'Ordre des
Avocats du Barreau de Colmar et de
Saverns,
Case 292/86 [1988] ECR
111. Mr Gulling, a French notary, had
been refused admission to various
French Bars on the grounds of lack of
dignity, good repute and integrity. He
then qualified in Germany as a lawyer
and sought to establish in France
under the right of establishment. The
Court did not address the fundamental
question of whether the right of
establishment included the right to
practise as a French "avocat" but
addressed a secondary question that
qualification in another Member State
did not bypass the local refusal to
permit practice for reasons of dignity,
good repute and integrity.
Finally, the Court addressed the issue
of exclusivity of service in the
relatively recent case,
Sager
-v-
Société Dennemever & Co Ltd,
Case
C-76/90 [1991] 1 ECR 4221.
German legislation reserved certain
patent services in Germany
exclusively to German patent
professionals. Sager took action to
prevent a UK based company from
providing patent searching and
renewal services in Germany. The
Court struck down the law as being
incompatible with Article 59 EC and
declared that, as no legal advice was
provided in this service, the
reservation of the service to local
patent attorneys was disproportionate
376