Deregulating the Market for Legal Services in the European Community: Freedom of Establishment and Freedom to Provide Services for EC Lawyers in the Federal Republic of Germany
| Published date | 01 September 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01828.x |
| Date | 01 September 1990 |
| Author | Horst Eidenmüller |
Deregulating the Market for Legal Services in the
European Community: Freedom of Establishment and
Fregdom to ProvideServices for EC Lawyers in the
Federal Republic of Germany
Horst Eidenmiiller
*
Freedom of establishment (Arts
52
-58
EEC Treaty) and freedom to provide services
(Arts
59-66
EEC Treaty) have not yet had any significant impact on the provision of
legal services within the EC. Lawyers seeking access to courts and clients in other Member
States
(MS)
often encounter a web of national laws and professional rules, blocking rather
than facilitating the effective exercise of their services. Gradually, things are beginning
to change.
In
1977
the Council adopted the Legal Services Directive' that sets out general
principles governing the provision of legal services by lawyers of one
MS
in another
MS.
And under the Recognition Directive of
21
December,
1988*
lawyers who have qualified
in one
MS
will have the opportunity of obtaining full access to the legal profession in
another
MS.
This paper sketches the effect of these directives on the legal system in the Federal
Republic of Germany.
Its
main objective is to serve as a guideline for those UK lawyers
who wish
to
practise in Germany, either temporarily or permanently. The completion of
the single European market is likely to strengthen the demand for lawyers who develop
an expertise in EC law and the law of other
MS.
Business clients in particular will seek
advice on where and how within the EC they should become active and set up business,
how to negotiate with local authorities and potential business partners and what to do in
any legal disputes that arise.3 The competitive strength of lawyers in all MS will depend
to some extent on whether they can offer this advice.
Freedom
to
Provide Services
Any self-employed person resident in one of the MS may, on a temporary stay in another
MS, provide his services in the host MS according to its laws. This is the basic principle
enshrined in Arts
59
and
60
EEC Treaty. The application of this principle to the legal
profession led to the Legal Services Directive of
1977.
Under this Directive (Arts
1,
2)
a lawyer from one MS may provide legal services in another
MS
.if he uses his home
state title (Art
3)
and observes a series of further conditions laid down in Art
4
et
seq.
Specifically with respect to activities relating to the representation of clients in legal
proceedings, the host
MS
may require such a lawyer (Art
5)
*LLM (Cantab), Rechtsreferendar; Universitat Munchen, Institut
fir
Internationales Recht (Rechtsvergleichung),
Veteridrstrde
5,
D-8000 Munchen 22.
I
should like
to
thank Tony Weir
for
his helpful comments on
an
earlier draft.
1
Council Directive 77/249/EEC of 22 March, 1977, Official
Journal
of
the
European Communities (1977),
No
L 78/17.
2'
Council Directive 89/48/EEC
of
21 December, 1988, Official
Journal
of the European Communities
(1989),
No
L 19/16.
3
The UK Government is well aware
of
this development. See
Die Work and Organisation of rhe Legal
Profession
(Cm 570), p 56;
Legal Services:
A
Framework for rhe Future
(Cm 740), p
40
and
cl
48
of
the
Courts and Legal Services Bill, removing prohibitions on the formation of multinational partnerships.
604
7ke Modern
Law
Review
535
September
1990
0026-7961
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