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GAZETTE
AUGUST/SEPTEMBER
1994
to the legitimate aim of protection of
the consumer.
We will now examine the legislation
and draft legislation to determine the
current state of lawyers' rights to
establish and provide services.
The Provision of Services
Council Directive (EEC) No 77/249 of
22 March 1977 to facilitate the
effective exercise by lawyers of
freedom to provide sefvices was
adopted in direct response to the
Reyners
case. This short and simple
Directive covers the situation where a
lawyer established in one Member
State, the home state, provides
services in another Member State, the
"host" Member State.
Some controversies, however, remain.
Article 5 of the Directive provides
that Member States may require the
visiting lawyer to be introduced to the
Court and Bar where the services are
to be provided and to work in
conjunction with a lawyer practising
within that Court's jurisdiction. All
Member States have exercised the
"working in conjunction"
requirement. The provision was
litigated in
Commission -v- Germany,
Case 427/85 [1988] ECR 1123 where
the Commission challenged the
legality of the German implementing
legislation as being too restrictive on
the visiting lawyer and too generous
! to the local lawyer,
i
The Court held that:
"(. . .) whilst the Directive allows
national legislation to require a
lawyer providing services to work in
conjunction with a local lawyer, it is
intended to make it possible for the
former to carry out the tasks
entrusted to him by his client, whilst
at the same time having due regard
j
for the proper administration of
justice. Seen from that point of
view, the obligation imposed upon
him to act in conjunction with a
local lawyer is intended to provide
him with the support necessary to
enable him to act within a judicial
system different from that to which
i he is accustomed and to assure the
judicial authority concerned that the
lawyer providing services actually
has that support and is thus in a
position fully to comply with the
procedural and ethical rules that
apply (. . .)."
The Court found that the requirements
that:
• the visiting lawyer should work
with a local lawyer even where
there was no local requirement for
legal representation;
• the local lawyer has to be appointed
representative of the visiting
lawyer's client;
• the visiting lawyer could not present
oral argument unless the local
lawyer was present;
• the local lawyer had to accompany
the visitor on prison visits; and
• the visiting lawyer needed a local
lawyer for each different Court
District
were all incompatible with Article 5.
In
Commission -v- France,
Case
294/89 [1991] 1 ECR 3591, the Court
again examined national
implementing legislation under
Article 5 and struck down the
requirements:
• that the visiting lawyer must not be
a French national;
• that the visiting lawyer must act in
conjunction with a local lawyer
even where the authority or agency
in question did not exercise judicial
functions; and
• that the visitor must always act with
a local lawyer of the Bar of the
particular Court District.
This last finding of the Court puts the
visiting lawyer in a much better
position than the local lawyer in that
he can move freely within France,
Germany, Italy, Spain and other
jurisdictions which restrict lawyers to
| practice in a particular region. This
form of reverse discrimination is well
known in the law on the free
movement of goods.
Visiting lawyers must use the title of
' the home Member State, so once a
solicitor always a solicitor. However,
the visitor must observe the rules of
professional conduct of the host state
without prejudice to his obligations in
the home state.
What then of home rules which allow
the visitor to advertise and host rules
which prohibit it. If the Court of
Justice were asked to review this
conflict, it is likely to examine
whether or not the host prohibition is
proportionate and would, I suggest
follow the line of reasoning adopted in
the Irish abortion information case
(Case C-159/90,
The Society for the
Protection of the Unborn Child
-v-
Grogan
[1991] ECR 4685).
There are no provisions on the
quantity of services to be provided.
However, in one case, the
Commission objected to a provision in
the Spanish implementing legislation
which sought to restrict to five
the number of times each year
services could be provided and the
provision was removed from the
Spanish law.
At the same time, it is clear that the
Directive was not intended to
provide for establishment in the
host Member State. It remains a fine
line of law to distinguish between an
office in the host state used to
facilitate the provision of
services and an establishment in
the host state.
The Right of Establishment
The first issue to be addressed under
the right to establishment topic is
what services the lawyer establishing
himself in the host state intends to
provide and secondly, is there a
provision in the host state law
reserving the right to give legal advice
to local lawyers.
Monopolies on legal advice exist in
Spain, France, Luxembourg, Greece
and Portugal and until 1990 existed in
Germany. No monopolies on legal
advice exist, as far as I am aware, in
Ireland, the UK, Belgium, the
Netherlands and Italy.
All Member States, on the other hand,
reserve to nationally established
lawyers the right to appear before the
Courts, to draw up certain types of
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