The Gazette 1946-49

GAZETTE

DECEMBER 1988

subject lawyers providing services

to the same system it applied to

German lawyers who were not

admitted to practise before a given

Court.

In order to cons i der t h is

submission, the Court felt it

necessary to look outside the strict

terms of the Directive. The Court

had regard to Articles 59 and 60 of

the Treaty.

The Court held that the 'Rule of

territorial exclusivity' may not be

applied to temporary activities

pursued by lawyers established in

other Member States since, for

those, their legal and practical cir-

cumstances cannot legitimately be

compared wi th those applicable to

lawyers established in Germany.

(C) The I mp l eme n t a t i on of t he

D i r ec t i ve in t he S t a te

The Directive has been transposed

into Irish law by Statutory Instru-

ment No. 58 of 1979, European

Communities (Freedom to provide

services) (Lawyers) Regulations,

1979,

hereinafter referred to as

the "Regulations".

Unlike the German law, the

Regulations follow closely the

terms of the Directive and in many

respects are a faithful transcription

of same.

Section 3(1) of the Regulations

states:

Subject to the provisions of

these Regulations, a visiting

lawyer shall be recognised as a

lawyer for the purpose of pur-

suing activities in the State by

way of provision of legal services

and wi t hout prejudice to the

generality of the foregoing —

(a) as regards activities relating

to the representation of a

client in legal proceedings or

before public authorities, he

shall have the same right of

audience as a lawyer estab-

lished in the State, and

(b) references in any enactment

or statutory instrument to a

barrister or to a solicitor shall

be construed accordingly.

This is far wider than the restric-

tive German Law and complies fully

w i th the Directive and the German

case.

Section 5(1) is equally general.

Activities relating to the re-

presentation of a client in legal

proceedings or before Public

Authorities shall be pursued in

the State by a visiting lawyer

under the conditions laid down

for lawyers established in the

State, save that he cannot be

required to be resident or

registered w i th a professional

organisation, in the State, or to

hold a practising Certificate

w i t h in the meaning of the

Solicitors Acts 1954 and 1960.

Section 6 of the Instrument

transposes the crucial Article 5

combined together w i th the effect

of Article 7 of the Directive stating:

When a visiting lawyer is pur-

suing activities in the State

relating to the representation of

a client in legal proceedings, he

shall wo rk

conjunction

(emphasis added) w i th a lawyer

who is entitled to practise before

the judicial authority in question

and who would where neces-

sary be answerable to that

authority.

(D) C omme n ts

It is clear from

Gullung

and the

German

case

t h a t M e m b e r S t a t es

are entitled to treat differently

lawyers from other Community

countries wishing to provide legal

services on their territory from

those who w i sh to

establish

themselves in the country.

While the freedom to provide

services has been legislated upon

in the Directive, the right of estab-

lishment springs directly from the

Treaty and has not been specifically

codified.

As stated by the Court in

Ordre

des Avocats

au Barreau

Paris,

quoted above in the context of es-

tablishment, it is up to Member

States, in the absence of Com-

munity rules, to regulate the legal

profession on their territory. Indeed

the preamble to the Directive states

that "mo re detailed measures will

be necessary to facilitate the

effective exercise of the right of es-

tablishment".

For Irish lawyers the right to

provide legal services in other

Member States will, in the opinion

of the writer, be of more immediate

impo r t ance t han the right to

establish within the Community.

While Irish lawyers may wish to

appear occasionally, for instance,

before United Kingdom Courts,

they may not see it useful to

establish a permanent office there.

Of course, there are always

invisible barriers to mobility within

the Community such as language

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