 The
European lawyer
The free circulation
of people carrying on a legal business is regulated in articles 52-58 and
59-66 of the Treaty of Rome. Such provisions regulate both the right to
settle and of the free circulation of services.
The freedom of
settlement consists in the right for the beneficiary of the Treaty's
provisions to move from one member state of the Community to another in
order to practice his activity in a continuous and permanent way.
The supply of services,
on the other hand, entails the temporary and casual practice of the professional
activity in a state other than the one the professional resides in.
Article 60 of the Treaty
states that the provisions pertaining the free supply of services can be
enforced only provided that those pertaining the freedom of settlement
aren't, as they mutually exclude. |
|
The free supply of
services of the legal profession
|
The rules on the free supply
of services of the legal profession laid down with directive 77/249/EEC
dated March 22, 1977 and absorbed in Italy with the law dated February
9, 1982, n. 31, set down that the lawyer who supplies services may use
his own professional qualification written in his native language or in
one of the official languages of the state of origin, with the indication
of the professional organisation he belongs to or of the jurisdictional
bodies before which he can plead according to the involved state's provisions.
More specifically, such
directive draws a distinction between activities in general and those strictly
related to a client's representation or defence in a trial or before a
Public Authority.
Within this context, article
4 lays down that the lawyer must comply with the professional rules of
the host member state (“with the exception of those pertaining the Italian
citizenship requirement, the possession of a law degree, passing the state
examination, the obligation to reside within the republic's territory,
the entry in the Bar and the oath obligation”), with the exception of the
obligations citizens are subject to in their origin member states.
Article 6 lays down its
limitations: obligation to communicate the acceptance of the professional
assignment to the involved authority and the involved president of the
Bar Association besides the obligation to act along with the lawyer enabled
to plead before the involved jurisdiction.
To tell the truth, it must
be said that the last limitation becomes a simple “domiciliation” (cf.judgement
dated 25.2.1988 lawsuit 42785 Commission/Germany in “Collection page 1123
which considered it unnecessary to give faculty even towards the local
lawyer”).
When the Italian lawmakers
absorbed this directive, they also resolved to add to ban for a lawyer
of a member state working in Italy to open a studio or a seat in our territory.
With reference to the practice
of all the other extrajudicial activities, the lawyer must comply with
the professional conditions and rules of the origin member state with the
exception of some provisions such as those regulating the professional
secrecy, the confidential nature in the relationships with other colleagues
and the advertising ban. |
|
The criminal lawyer
|
The above mentioned provisions
can be enforced in every branch of the legal practice.
The criminal lawyer who
must plead abroad and defend his client will have to keep into consideration
such provisional procedures.
A lawyer belonging to the
host member state and, if necessary, even an interpreter, are necessary
even in the case of criminal defence.
To give an example, within
the French state the defending counsel of the foreign country asserts every
right and faculty due to the lawyer according to the French criminal proceedings,
personally participating in every stage and degree of the process. The
sentence deeds and any other communication coming from the host state's
Judicial Authority are in fact notified directly to it. |
|
Freedom of settlement
for the permanent professional practice
|
As far as the free settlement
right to practice the legal profession, we must first of all say that last
July 4, the Council adopted the common position n. 35/97 that was recently
approved without amendments by the European Parliament and whose directive
is expected to be soon adopted. The news about this specific topic that
will be introduced by such directive will be the object of a short analysis
later on. Let's now deal with the Italian provisions currently in force.
The lawyer who can practice
the legal profession and who intends to settle in a different member state
and obtain the recognition of his own professional qualification, must
refer to the EEC directive dated December 21, 1988 pertaining the general
system of recognition of university diplomas that involves professional
training lasting at least three years. |
|
Such directive was absorbed
in Italy by the legislative decree dated January 27, 1992, n. 115 that,
in particular, enables the member state to subordinate the recognition
of school qualifications to an adjustment training or an aptitude test
in case considerable differences among the training systems exist.
To recognise the qualification
of the legal profession (and of professional accountants as well as of
industrial property consultants), article 6 specifically obliges the professional
to carry out an aptitude test: “the aptitude test consists in an exam aimed
at verifying the deontological professional knowledge and at assessing
the professional practice capabilities by keeping into consideration that
the applicant is a qualified professional in his origin country” (article
8).
There is then a complicated
recognition procedure to be given to the involved ministry that, in turn,
must issue a decree within four months from the application proposal (article
12).
The recognition essentially
entails the right to have access to and practice the profession “in compliance
with the conditions of the current provisions in force” (article 13).
The recognition system of
the involved directive put forth by the Italian lawmakers cast worries
and doubts concerning community legitimacy about the “stickiness” it might
introduce.
With the forthcoming directive
on the legal profession, we will finally have regulations that will keep
this profession's specific features into due consideration. |
|
The new community
directive
|
The so-called “legal directive”
which will become operative with the Council's final adoption within a
short period of time, is the result of an initiative that was taken in
1992 by the organisation of the Bar associations and adopted by the EEC
Commission. It essentially aims at making it easier for lawyers to practice
the legal profession or its practice in a country other than the origin
one, by allowing them to practice directly with their professional qualification.
Community lawyers will thus
be enabled to give consulting on their origin country's law, on international
and community laws, as well as on the host country's; they will also be
entitled to represent or defend their clients in trials and, if necessary,
along with another lawyer who can plead at the involved judicial body,
in another member state.
Essentially, the lawyer
will be able to start automatically practising his profession in the host
member state and avoid the aptitude test provided he can prove that he
practised an “effective and regular activity” for at least three years
in compliance with the host member state or community law.
The directive also contains
some provisions about the professional practice in an associated form.
These provisions include
the possibility of practising a profession in a branch of a state associated
with the origin state, as well as the possibility for the lawyers coming
from the same origin state to use associative forms laid down by the host
state. Finally, they can also practise their profession in association
with one or more lawyers coming from different origin states with one or
more lawyers from the host state.
The actual laws in force
in the single states and the possibility of banning the existence of associated
offices where the decision-making power is exerted by people not practising
the legal profession are an exception, however.
Thus, according to such
directive, the lawyer will have to comply with one condition: he will have
to register in the involved authority of the host member state and will
not have to ask and obtain the recognition.
Finally, it could be useful
to mention the respect of the host state professional and deontological
rules: as lawyers must be registered both at the host and the origin state's
involved authority, in fact, it must be underlined that they will have
to comply with the deontological and professional provisions of the host
state in which they regularly practise their working activities.
To sum up, the legal
picture currently in force in Italy is the following:
-law dated February 9, 1982,
n. 31, lays down the mutual recognition for casual services supplied by
lawyers.
According to such provisions,
the lawyer belonging to a legal association can supply services pertaining
consultancy, representation and defence in another member state; representation
in trials, however, must be done along with a local lawyer;
-the legislative decree
n. 115 dated January 27, 1992 pertaining the free permanent professional
practise in a state other than the origin one lays down the recognition
and the equivalence of the professional qualification for the other member
states.
Such recognition, however,
is subordinate to some strict procedures and to an aptitude test.
The new directive is added
to other directives in force aiming at making professional practice easier
within an actually European context.
Besides the choice of unitary
rules to enforce social security and fiscal provisions, some problems about
the “terminology” to be used to define the lawyer's qualification recognised
in the single member states as well as the services to be carried by special
jurisdictional bodies still have to be cleared (suffice it to think, for
example, to the double role associated with solicitors and barristers in
the United Kingdom).
Daria Pesce |
|
Mensile di scienza medica e attualita`
