The Gazette 1993

GAZETTE

APRIL 1993

Acquisition of the German Title

"Rechtsanwalt"

by Irish Lawyers

by Alexander Frhr. von

Fiirstenberg/Dr. Axel Grannemann

Lawyers in Freiburg im Breisgau

(Federal Republic of Germany)

The completion of the single

European market on January 1,

1993, has opened up new vocational

prospects to the professions of legal

advice, tax advice, and auditing in

the Member States of the European

Community (EC). The following

article describes hów to acquire the

title "Rechtsanwalt" in the Federal

Republic of Germany, and it gives a

general account of the professional

prospects resulting from the double

qualification "Lawyer

and

Rechtsanwalt."

I. Legal foundations

The first aptitude tests for the

licensing of lawyers in Germany took

place in 1991- and 1992. The Federal

Republic of Germany established the

legal foundations by implementing

the EC Council Directive on general

regulations to acknowledge university

degrees concluding an education of

at least three years.

Lawyers find

them in the

Eignungspriifungsgesetz

(statute of aptitude tests) of July 6,

1990.

The aptitude test consists of a

written part and an oral part. It has

to be taken in German. The written

part consists of two test papers

written under supervision, at least

one of which has to be passed for

admission to the oral examination.

H- Aptitude test for lawyers

The aptitude test serves the purpose

of judging whether the applicant is

qualified to practise the lawyer's

Profession in the Federal Republic of

Germany. Whoever passes the test

may apply for admission to practise

as a lawyer. He may then use the

title "Rechtsanwalt" besides the title

"lawyer" in both Germany and

Ireland,

thus attaining all of the

rights and obligations of German

lawyers.

On the applicant's request,

he may be discharged from the

obligation to take up residence in

Germany and hold a lawyer's office

there, thus pursuing his profession

under his double qualification in

Ireland only.

1. Written Examination

The compulsory subjects are:

Zivilrecht

(civil law) - general part

of the

BGB

(German Civil Code),

Schuldrecht

(law of obligations),

Sachenrecht

(law of property) -

Verfahrensrecht

(law of procedure,

belonging to the above-stated) and

Berufsrecht der Rechtsanwálte

(law of profession as related to

lawyers).

The elective subjects consist of two

groups: group 1 includes

Óffentliches

Recht

(public law) and

Strafrecht

(criminal law), group 2 includes

Familien- und Erbrecht

(family law

and law of succession),

Handelsrecht

(commercial law),

Arbeitsrecht

(labour law),

Óffentliches Recht

and

Strafrecht

The applicant names one

subject out of group 1 and another

subject out of group 2. He shall not

be allowed to choose the same

subject from both groups (such as

Óffentliches Recht).

The applicant

decides on one of the two chosen

subjects, which will then be the

subject of the second test paper.

2. Oral examination, examination

results

Having passed at least one of the

test papers, the applicant is admitted

to the oral examination.

At the

beginning of this examination the

candidate gives a fifteen minute

lecture, which is followed by an

examining discussion lasting 45

minutes at the longest.

Following

the oral examination, the board of

examiners decides on whether or not

the applicant has passed the

examination on the basis of the

general impression left by the

applicant's achievements in both the

written and the oral examination.

3. Level of the examination

The EC Council Directive proceeds

on the assumption that university

degrees in the Member States as well

as diplomas from non-member

countries acknowledged by the

Member States are, in principle, of

the same standard. The aptitude test

is meant to facilitate the admission

in another Member State instead of

impeding it. It has to take into

account that the applicant is already

qualified to practise as a lawyer in

his home country.

The board of examiners is made up

so as to ensure a clear majority of

lawyers among its members.

The subject of the examination

must relate to the occupational

practice of a lawyer. Drafts of

judgments or of bills of indictment

may not be demanded. As a rule, a

lawyer's pleading in judicial

proceedings or an administrative

procedure or an expert opinion

from the advisory practice or a

draft contract tend to be subjects of

the examination.

4. Applying for admission to the

examination

The application for admission to the

examination has to be directed to

the examination office for the

second legal state examination

(Prufungsamt, zustándig fiir die

zweite juristische

Staatspriifung).

The

DAV (Deutscher

Anwaltsverein)

(German Law Society) will be glad

to supply applicants with further

information on competent offices in

Germany. At present, the dates for

the examinations are still at the

applicants' disposal. The

examination may be repeated.

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