A few rulings from the European Court of Justice affecting law practice in the EU

The end of the year is a good moment to take stock and reach conclusions. We should bear in mind that the way we practise the legal profession is not just a question of our internal regulations, but depending on how we wish to practise outside the borders of our own country, it is also a question of EU regulations and rulings by the competent authorities. For this reason, it is worth reviewing several of the rulings by the European Court of Justice whose importance for practising lawyers cannot be overstated.

1. Wilson v Ordre des avocats du barreau de Luxembourg, Judgment of the Court (Grand Chamber) of 19 September 2006 (Case C-506/04)

Procedure for appeal against denial of registration of lawyer holding a professional title from his home country
Under Art. 9 of Directive 98/5/EC, the member states must ensure that appellate review is available against a decision by the host country refusing to register a lawyer intending to practise there under a professional title earned in the home country by resort to the courts under national law, with particular attention to the principles of impartiality and independence of the body considering the appeal (which must be a court within the meaning of EU law), regardless of the availability of a cassation appeal or other means of review, which the directive does not exclude. Access to a court within the meaning of EU law requires actual access within a reasonable period.

Knowledge of language of host country
Under recital 6 of the preamble to Directive 98/5/EC, the Community legislature sought to put an end to the differences in national rules on the conditions for registration with the competent authorities which gave rise to inequalities and obstacles to freedom of movement by migrating lawyers. The directive does not permit prior testing of their knowledge and skills, such as language skills. Registration admitting a lawyer to practise in the host country using a professional title earned in the lawyer’s home country requires only presentation of a certificate attesting to his registration with the competent authority in the home member state.

Activities relating to representation and defence of clients
Under Art. 5(3) of Directive 98/5/EC, a member state is permitted to require EU lawyers practising under their home-country professional title to work in conjunction with a lawyer who practises before the court hearing the case and who would, where necessary, be answerable to the court. This option compensates for any lack of proficiency in the court languages of the host member state.

Rules of professional conduct
Under Art. 6 and 7 of Directive 98/5/EC, an EU lawyer must comply with the rules of professional conduct applicable in his home member state as well as those of the host member state, under threat of disciplinary sanctions and professional liability. This applies as well to the obligation not to handle matters which the professional knows or ought to know he is not competent to handle, for instance owing to a lack of linguistic knowledge.

2. Ebert v Budapesti Ügyvédi Kamara, Judgment of the Court (Fourth Chamber) of 3 February 2011 (Case C-359/09)

Two paths of access to practice as a lawyer in the host country
Directives 89/48/EEC and 98/5/EC are not mutually exclusive, but complement one another by establishing two means by which lawyers from member states may gain admission to the profession of lawyer in a host member state: on the basis of Directive 89/48/EEC (recognition of diploma by host member state) or on the basis of Art. 10 (1) and (3) of Directive 98/5/EC (effective and regular pursuit of activity in the host member state for at least three years).

Membership in bar association
Directives 89/48/EEC and 98/5/EC do not prohibit applying to a lawyer practising in a host member state, particularly with respect to access to the legal profession, national regulations concerning organization, ethics, supervision and liability, including for example membership in a bar association.

3. Commission v Luxembourg, Judgment of the Court (Grand Chamber) of 19 September 2006 (Case C-193/05)

Annual resubmission of registration certificate from home jurisdiction
Under Art. 7(2) and 13 of Directive 98/5/EC (measures enabling the competent authority in the host member state to ensure that a lawyer from another EU member state continues to comply with registration requirements in the home state), it is impermissible to introduce regulations in the host country requiring an EU lawyer to resubmit a registration certificate from the home jurisdiction every year. Such a formality is a means of administrative control disproportionate to the intended purpose and thus unjustified under Directive 98/5/EC.

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