The Gazette 1988

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

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

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.

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.

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

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,

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