The Gazette 1988

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, 4 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 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 or statutory instrument to a barrister or to a solicitor shall be construed accordingly.

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 in 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 de 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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