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

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)

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

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.