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GAZETTE
DECEMBER 1988
C ommu n i t y Lawye rs r i ght
t o p r ac t i se w i t h i n t he E.C.
Two recent dec i s i ons of the European
Court of Jus t i ce
I n t w o
1 & 2
i mp o r t a nt de c i s i ons earlier t h is year t he Eu r opean
Co u r t of J u s t i ce e x p l o r ed t he q u e s t i on of l awye rs f r om one E.C.
c o u n t r y p r a c t i s i ng in ano t her Memb e r S t a te by way of 'establish-
me n t ' or p r o v i s i on of legal se r v i ces. In pa r t i c u l ar t he Co u rt
c o n s i d e r ed t he t e r ms of D i r e c t i ve 7 7 / 2 4 9
3
t o f a c i l i t a te t he
e f f e c t i ve exe r c i se by l awye rs of f r e e d om t o p r ov i de se r v i ces
( he r e i na f t er r e f e r r ed t o as " T h e D i r e c t i v e ") in b o t h cases and
A r t i c l e 52 of t he Treaty of Rome ( he r e i na f t er r e f e r r ed t o as " T h e
T r ea t y ") in t he f i r st case.
Gi ven t he m o m e n t um t h a t has been gene r a t ed in r e l a t i on t o t he
p r oposed c omp l e t i on of t he Internal Ma r k et by 1992 bo th decisions
w i l l be of i n t e r est t o I r i sh l awye rs c o n s i d e r i ng c o mm e n c i ng or
i ndeed e x p a n d i ng ac t i v i t i es in t he U. K. and on t he Co n t i n e n t.
Article 1 of the Directive states:
1. This Directive shall apply, within
t he l imi ts and under t he
conditions laid down herein, to
the activities of lawyers pursued
by way of provision of services.
No t w i t h s t a n d i ng an y t h i ng
con t a i ned in this Directive,
Member States may reserve to
prescribed categories of lawyers
the preparation of formal docu-
ments for obtaining title to
administer estates of deceased
persons, and the drafting of
formal documents creating or
transferring interests in land.
Article 4 stipulates:
1. A c t i v i t i es r e l a t i ng to t he
representation of a client in legal
proceedngs or before public
authorities shall be pursued in
each host Member State under
the conditions laid down for
lawyers established within that
State w i th the exception of any
conditions requiring residence,
or registration w i th a profes-
sional organisation, in that State.
2. A l awyer pu r su i ng
t hese
activities shall observe the Rules
of professional conduct of the
host Member State without pre-
judice to his obligations in the
Member State from which he
comes.
3. Wh en t hese a c t i v i t i es are
pursued in the United Kingdom,
"Rules of professional conduct
of the host Member State",
means the Rules of professional
conduct applicable to Solicitors,
where such activities are not
reserved for Barristers and
Advocates. Otherwise the Rules
of professional conduct applicable
to the latter shall apply. However,
Barristers from Ireland shall
always be subject to the Rules of
professional conduct applicable
in t he Un i t ed K i ngdom to
Barristers and Advocates.
by
Cathal T. 0 Conaill,
B.C.L.,
So l i c i t or
When these activities are
pursued in Ireland "Rules of pro-
fessional conduct of the host
Member State" means, insofar
as they govern the oral presen-
tation of a case in Court, the
Rules of professional conduct
applicable to Barristers. In all
other cases, the Rules of pro-
fessional conduct applicable to
Solicitors shall apply. However,
Barristers and Advocates from
the United Kingdom shall always
be subject to the rules of pro-
fessional conduct applicable in
Ireland to Barristers.
Article 5 states as follows:
For the pursuit of activities
relating to the representation of
a client in legal proceedings, a
Member State shall require a
l awyer to w h om A r t i c le 1
applies:
— To be introduced, in accor-
dance w i th local rules or
customs, to the presiding
judge and, where appropriate,
to t he President of t he
relevant Bar in the host Mem-
ber State;
— To w o r k
in
conjunction
(emphasis added) w i th a
lawyer who practises before
t he j ud i c i al a u t h o r i ty in
question and who would,
where necessary, be answer-
able to that Authority, or w i th
a n
avoue
or
procuratore
practising before it.
(A) ( GUL LUNG) -v- CONSE I LS
DES ORDRES DES AVOCATS
DES BARREAUX DE CO L MAR
ET DE SAVERNE A ND OTHERS:
J u d gme n t 19 th J anua r y, 1988.
This case (hereinafter referred to as
Gullung)
was a reference under
Article 177 of the Treaty from a
French Court to the European Court
for a preliminary ruling. The facts of
Gullung
were a little unusual. Mr.
Claude Gullung, who was a lawyer
holding both French and German
nationality, had practised as a
Notary at Hirsingue, France, from
1947 to 1966 wh en he had
resigned f o l l ow i ng disciplinary
measures taken against him by the
Disciplinary Board for Notaries of
the Department of Haut-Rhin.
Subsequently he had first sought
to be registered on the list of
conseils juridiques (legel advisers)
of Marseille and later to be
admitted as an avocat of the
259
Ca t hal T. O ' Cona i ll