The free movement of lawyers in the European Union works rather well, according to the European Commission, which says that it has not received any “substantial complaints” from this profession. It is important to add that the Council of the Bars and Law Societies of the European Union (CCBE) had actively participated in drafting Directive 98/5/EC on lawyers’ freedom of establishment. Until then, the profession was governed by Directive 77/249/EEC on the free movement of their activities.

Now, any lawyer certified to practice in a member state can “permanently practice in any other member state their profession with the qualification from their country of origin”. Knowing that they have the possibility to practice the law of their country of origin, the law of their host country and Community law, as well as the activities of a local lawyer, particularly counsel and legal representation. On this last point, the host country can nonetheless impose on a foreign lawyer to act in consultation with a lawyer certified with the jurisdiction referred to.

There are two conditions to be respected: they must be a lawyer in their country of origin and be native of a member state.

There could have been one pitfall, according to the Commission: Luxembourg tried to impose linguistic conditions on lawyers native to another EU country and wanting to work there. Therefore, a British lawyer would be refused inclusion on the roll of lawyers for not proving his linguistic abilities. Luxembourg was ultimately dismissed in 2006 by the EU Court of Justice, which had been asked to rule on the matter.

PETITIONS

In November 2007, the Liberals’ group in the European Parliament had, however, reported “numerous barriers, both visible and invisible,” to free establishment. Italian MEP Luciana Sbarbati said she had received a petition from an Italian lawyer and other individual demands. This, at the time, had surprised the CCBE, as the few complications had been settled amicably within the European association (for example, the principle of double ethics that a lawyer practicing in another member state is subject to and which posed some minor problems).

Beyond the practical concerns – VAT rates or robes, linked to Directive 89/48/EEC on the recognition of qualifications - Marti de Anzizu, a lawyer in France and Spain, also pointed out problems arising from the directive on establishment: competition, insurance, civil liability (the host member state must recognise the origin state’s civil liability, but in practice the recognition of equivalency is delicate) and double ethics.

The Commission has postponed the delivery of its report on the 1998 directive, giving the 12 new member states time to test it before assessing its functioning. The CCBE is working of the problems encountered so that all these points are covered in a future revision.