Exercising as a lawyer in Europe – a practical overview

As an EU law student mostly interested in becoming a lawyer and in travelling, I suddenly asked myself: how will I be able to exercise my future job in other European countries? It also makes sense for my future European colleagues, which will be led to provide legal services all around the globe – yes, I am pretty sure you will, my learned colleagues. Here’s some answers to questions which I’m sure will arise in your professional life, sooner or later. Non-lawyers, beware: this article might not be of interest for you – at all.

I’m already a lawyer in my home country and I want to provide legal services in France another EU Member State. Do I need to pass this State’s bar examination to exercise law there?

Nay, although it comes with some restrictions.

Applicable law to the provision of services as a lawyer: Directive 77/249/CEE.

As a service provider, and either as a private or salaried lawyer, you can carry on your activity wherever you want with the professional title acquired in your Member State of origin (your ‘home Member State’). After registering with the competent authorities of the Member State you want to exercise in (your ‘host Member State’), you can exercise law in whatever field you want: the law of your home or host Member State, EU law or international law.

Of course the work of a lawyer is intrinsically linked to good administration of justice, which is an element of public order in most European countries. As a consequence, there are limitations to the extent to which you can practice the law while drinking milkshakes on the Calanques of Cassis in your new country:

Some countries – such as the one of Molière and Gérard Depardieu – make a distinction between lawyers and notaries. You won’t be able to exercise as a notary unless you obtain the specific status – that means quitting your job as a lawyer and starting a whole new career. Sorry for this weird civilist distinction, American friends.

Another limitation concerns the right to represent a client in legal proceedings or before public authorities. This right can be limited by the host State, which can require you to pursue such activities “in conjunction with” a local lawyer or with an “avoué”. The function of such a person will be “to provide [you] with the support necessary to enable [you] to act within a judicial system different from that to which [you were] accustomed and to assure the judicial authority concerned that [you] actually had that support and [were] thus in a position fully to comply with the procedural and ethical rules that applied”.[1]

If you plan on exercising in the UK, you will have to comply with specific rules for solicitors and barristers. Sorry for this weird common law distinction, Continental friends.

Fully practicing law in another EU Member State, just like you could in your home country, is therefore not possible within the framework of freedom to provide services. Most of the time you’ll have to associate with a local lawyer. There will also be reputation issues at stake. When merely providing legal services – that means, on a temporary basis (that has to be determined in the light of the duration, regularity, periodicity and continuity of your activity[2]).

Those restrictions are giving me a hard time, plus I’m starting to like this country – do I necessarily have to pass the bar here to be recognized as a local lawyer?

Nope, but you should get to work right now.

Applicable law to the establishment of lawyers in another Member State: Directive 98/5/EC.

You need to effectively practice the law of the host State[3] during at least three years in the host Member State in order to obtain the title of Lawyer from this country (art 10.1). To this effect you have to bring the proof of such activity to the competent authority, which will examine the case, possibly ask you some questions about your activity and then issue a positive or negative decision.

Only the duration of your regular and effective practice of the law of the host State – and EU law – will be taken into account. The competent authorities can examine to what extent you’ve developed knowledge and skills on the local law in order to determine if you fulfill the three-years requirement. In order to do this they can consider a various set of factors, such as the cases you’ve worked on, the seminars you’ve attended, etc… Of course, they need to assess your situation with respect to the sacrosanct EU principle of proportionality.

In any case you may challenge the authorities’ decision before a court – let them see how good a lawyer you are.[4]

Only then you’ll be able to use the local title (“Avocat”, “Avvocato”, “Rechstanwalt”…) and will be free from the limitations faced in the context of provision of services.

 What if I don’t want to wait three years to obtain the local title?

Then you gotta work. Faster.

Applicable law: Directive 2005/36/EC on the recognition of professional qualifications.

If you’re already recognized as a lawyer in your home State, you can ask for mutual recognition of your diploma, although the host Member State can require you to follow a traineeship of no more than three years or to pass an examination, in three situations: the duration of your law education is insufficient, you haven’t followed enough courses in the home State law, or the profession as defined in the host Member State comprises one or more regulated professional activities that do not exist in your home Member State (e.g. notaries). In most European countries an examination system is put into place. The content of this examination varies, of course, among Member States.

One last hypothetical situation, maybe?

Alright. Let’s say you’re a law student holding a Master in Swedish law and you want to pass the Slovenian Bar, because you really can’t choose between skiing and windsurfing. I am sorry for you but there is no intervention of EU law in this situation. You will have to comply with local rules concerning access to the Bar examination: holding a Master’s degree and having completed three years of practical experience in Slovenian-related law.

Only then will you be able to windsurf. Like a Lawyer.

Ain't that the most relevant picture to this article?
Ain’t that the most relevant picture to this article?

 

[1] Case C-294/89 Commission v. France [1991] I-03591, para. 30.
[2] Case C-55/94 Gebhard [1995] I-04165, para. 27.
[3] Which, interestingly enough, the Directive does not differentiate from EU law, as part of the national legal order! Would this implicitly mean that I hold a degree in all 28 European national laws?
[4] I strongly advise the use of words such as « non-discrimination », « necessity », « suitability » and « less restrictive alternative ».

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Exercising as a lawyer in Europe – a practical overview

2 réflexions sur “Exercising as a lawyer in Europe – a practical overview

  1. Well I would see no discrimination arising from the requirement to have a law degree in Slovenian law. This requirement would apply to both Slovenians and other EU students.
    If you would try to argue for a de facto discrimination, then I would point out the fact that they don’t only teach Slovenian law in Slovenia, but also all kinds of other fields, and so even Slovenian students can be non-admissible to the bar exam.
    And if, still, it would be considered as a de facto discrimination by an EU court, then I think the public policy requirement that there are enough lawyers with knowledge of Slovenian law registered to the Slovenian bar (that has to deal with good administration of justice) would be convincing enough to lead to conclude to the validity of such measure.

    If you had a Swedish Master in Slovenian law, however, and got refused to the bar exam, that would be a whole another story 😉

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