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Regulation of the legal profession in Europe. Simone Cuomo Legal Advisor, CCBE. Introduction of the Council of Bars and Law Societies of Europe. The CCBE liaises between the Bars and Law Societies from the Members States of the European Union and the European Economic Area.
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Regulation of the legal profession in Europe Simone Cuomo Legal Advisor, CCBE
Introduction of the Council of Bars and Law Societies of Europe • The CCBE liaises between the Bars and Law Societies from the Members States of the European Union and the European Economic Area. • It represents all such Bars and Law Societies before the European institutions, and through them over 700,000 European lawyers. • The CCBE enjoys consultative status with the Council of Europe.
3 EU Directives on cross-border legal practice • Lawyers’ Services Directive – 1977 • Mutual Recognition of Diplomas Directive – 1989 • Lawyers’ Establishment Directive - 1998
EU founding principles • EC Treaty: • Right of establishment (art. 43-48) • Freedom to provide services (art. 49-55) • To be implemented, if necessary, through secondary legislation (e.g. directives, regulations) • Case-law of the ECJ (e.g. Reyners Case 2/74) • Mutual recognition without harmonisation
Lawyers’ Services Directive77/249/EEC Temporary services • Right to provide services temporarily under home title in another Member State, without registration with the host bar. • Introduction to the local court by a local practitioner can be required by a Member State if exercising a right of audience.
Mutual Recognition of Diplomas Directive 89/48/EC Requalification • Right to take an aptitude test (main areas of difference) in any Member State to qualify also in that Member State, in order to be able to practise using the professional title of that Member State. • As of October 2007: Directive 2005/36
Lawyers’ Establishment Directive 98/5/EC Permanent establishment • Right to establish permanently under home title subject to registration with, and regulation by, home and host bar • Once established, right to practise home, EU, international and host state law • Ability to acquire host title more or less automatically after three years’ practice of host law • Again, introduction to local court can be required by a Member State
The Morgenbesser Case (C-313/01) Right of mobility for not yet fully-qualified lawyers • The notion of “regulated profession” does not include a traineeship • The right of mobility extends to those still in training and not yet fully qualified lawyers • Competent authorities must take into account all qualifications of EU nationals seeking entry into their professions • Partial equivalence must be considered
European routes to cross-border legal practice EEA fully qualified lawyer Access to legal practice in host State Directive 77/249/EEC and Directive 98/5/EC Directive 98/5/EC EEA fully qualified lawyer Access to host legal profession Directive 89/48/EEC as replaced EEA migrant with law degree only Access to host legal training Morgenbesser route Julian Lonbay
The Morgenbesser process EEA migrant with law degree only • Case C-313/01 Morgenbesser (13thNovember 2003) • No homologation as a prerequisite to recognition • Mobility to those still in training to be advocates Morgenbesser route Competent Authority decision Access Professional training Nothing missing Elements missing Gaps to be filled by applicant Julian Lonbay