Free movement of lawyers within the European Community
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Abstract
The European Community (hereinafter – EC) has made a remarkable progress towards harmonization of provision of legal services and freedom of establishment for lawyers in the EC member states. After The Court of Justice of European Communities has ascertained that the most typical activities of the profession of “avocat” (lawyer) cannot be considered as connected with the exercise of official authority, the European Commission started the liberalizing activities within the field. Soon the Council Directive 77/249/EEC facilitating the effective exercise by lawyers of freedom to provide services and Directive 98/5/EC of the European Parliament and the Council facilitating practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained were adopted. In addition to that, lawyers wishing to immediately establish themselves under the professional title of the host member state, may rely upon Directive 2005/36/EC of the European Parliament and the Council on recognition of professional qualifications.
The persons that are not authorized lawyers but wish to be enrolled to the period of practice necessary for admission to the bar may not rely on any lawyers directive as well as on Directive 2005/36/EC of the European Parliament and the Council on recognition of professional qualifications, as the enrolment to the practice is not a regulated profession, as it is understood under that directive. However, Community law requires that the host member state assesses the whole of the training, academic and professional, which that person is able to demonstrate and examine whether, and to what extent, the knowledge certified by the diploma granted in another Member State and the qualifications or professional experience obtained there, together with the experience obtained in the Member State in which the candidate seeks enrolment, must be regarded as satisfying, even partially, the conditions required for access to the activity concerned.
After analyzing the above mentioned system of free movement of lawyers within the Community as well as recognition requirements for the persons willing to be enrolled to the period of practice necessary for admission to the bar in the host member state, the article highlights the success of the European Community in this field. However, there are still some drawbacks: there are no single compulsory ethical rules for lawyers, cases of professional misconduct, may lead to discipline in two members states in respect of the same misconduct, not all Member States have properly transferred the directive – the analysis of the Lithuanian Law on the Bar is shown as an example.
The persons that are not authorized lawyers but wish to be enrolled to the period of practice necessary for admission to the bar may not rely on any lawyers directive as well as on Directive 2005/36/EC of the European Parliament and the Council on recognition of professional qualifications, as the enrolment to the practice is not a regulated profession, as it is understood under that directive. However, Community law requires that the host member state assesses the whole of the training, academic and professional, which that person is able to demonstrate and examine whether, and to what extent, the knowledge certified by the diploma granted in another Member State and the qualifications or professional experience obtained there, together with the experience obtained in the Member State in which the candidate seeks enrolment, must be regarded as satisfying, even partially, the conditions required for access to the activity concerned.
After analyzing the above mentioned system of free movement of lawyers within the Community as well as recognition requirements for the persons willing to be enrolled to the period of practice necessary for admission to the bar in the host member state, the article highlights the success of the European Community in this field. However, there are still some drawbacks: there are no single compulsory ethical rules for lawyers, cases of professional misconduct, may lead to discipline in two members states in respect of the same misconduct, not all Member States have properly transferred the directive – the analysis of the Lithuanian Law on the Bar is shown as an example.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
