7. We have given further
consideration to the following on the basis of a Supplementary
Explanatory Memorandum. We maintain our opinion[18]
that it raises questions of legal and political importance, but
now make no recommendation for its further consideration:-
LORD CHANCELLOR'S DEPARTMENT
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(17518)
10221/96
COM(96)446
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Amended draft Directive to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained.
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Legal base:
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Articles 49, 57(1) and first and third sentences of 57(2); co-decision; qualified majority voting.
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Introduction
7.1 This proposal was
first put forward in early 1995. We last considered it on 13
November 19961 when we decided not to clear it until
we had learnt the outcome of the Government's consultation. It
wished to seek the views of the professions and other interested
parties in the UK as to whether they regarded as acceptable the
compromise agreed between the Member States and the European Parliament
(EP) on amendments to two Articles of the draft Directive.
7.2 The amendment to
Article 2 would allow lawyers the right to practise their profession
on a permanent basis in another Member State under the professional
title they are entitled to use in their home state ("home
state title"). The Government had won a change from a earlier
draft which limited the right to five years.
7.3 The amendment to
Article 10 would enable lawyers who had regularly practised in
another Member State for at least three years to join the host
State legal profession without having to sit an aptitude test.
The Government had hoped to retain aptitude tests but regarded
as acceptable the alternative of a procedure of verification by
the host State competent authority.
7.4 The Parliamentary
Secretary at the Lord Chancellor's Department (Mr Streeter) referred
in his Explanatory Memorandum of 24 October 1996 to the "undoubted
advantages gained in respect of permanent practice under home
state title" and said that the amended version of Article
10 represented a significant, if partial, improvement over the
original proposal.
Further information from the
Government
7.5 In his Supplementary
Explanatory Memorandum (dated 10 March) the Minister says that
the Lord Chancellor's Advisory Committee on Legal Education and
Conduct (ACLEC) and some large firms of solicitors based in the
City of London were consulted. ACLEC considers the compromise
broadly acceptable. The City firms who responded generally favoured
accepting the present text. Such reservations as were expressed
in relation to Article 10 were qualified by recognition that it
formed part of a compromise package which included Article 2.
The Department has, the Minister says, maintained regular contact
with the United Kingdom delegation to the Council of the Bars
and Law Societies of the European Communities (CCBE). They strongly
favour accepting the present text.
7.6 The Minister says
that his reference, quoted in paragraph 7.4 above, to the improvement
to Article 10 should be seen in the context of the unqualified
welcome given by the Government to the amended text of Article
2. He adds:
"The permanent
right to establish under home state title would provide a very
considerable benefit to UK lawyers, and the new text represents
a delicate compromise negotiated within the European Parliament
following lobbying from various legal interests within the EU
including the CCBE, in which the UK professions played a prominent
role.
"This route
to integration would undoubtedly contrast markedly with the system
under the Mutual Recognition of Qualifications Directive of 1989
(89/48/EEC) 'The Diplomas Directive'). Under that Directive the
general rule is that applicants seeking to have their qualifications
recognised may choose between sitting an aptitude test and undergoing
an adaptation period. In the case of professions which require
a precise knowledge of national law and in respect of which the
giving of advice or assistance in national law is an essential
feature, the choice as to whether applicants should sit a test
or undergo an adaptation period is given to Member States. The
present proposal would, arguably, remove much of the importance
of that derogation[19].
It would, however, remain open to applicants to use the Diplomas
Directive route to integration if they wish, in which case the
derogation would still apply. Moreover, the present proposal
is narrow in scope in that it only applies to persons who are
authorised to practise under one of the titles listed in Article
1. Given that the legal professions, whom the derogation in the
Diplomas Directive was primarily designed to protect, are content
with the new proposal, the Government considers that concerns
about the effect on the derogation are outweighed by other considerations.
"... not many
migrant lawyers are likely to set up in small practices with vulnerable
clients in competition with, for example, high street solicitors:
we are generally dealing here with large firms seeking corporate
clients and whose work is generally commercial in nature. Moreover,
the CCBE Code of Conduct, which applies to all lawyers in the
EU, is designed (among other things) to prevent lawyers from taking
on work which they are not competent to do. Breach of the Code
can result in disciplinary proceedings and sanctions including
striking off or disbarment. That should significantly mitigate
fears that lawyers unqualified in (for example) English law might
mislead clients as to the nature of their qualifications or damage
their interests.
"There are undoubtedly
points of detail which need to be clarified. In particular, although
the text makes clear that the onus of proving that for three or
more years he has engaged in 'effective' and 'regular' pursuit
of the professional activity [is on the applicant], it needs to
be made clear (although in the Government's view it is necessarily
implicit) that, if the applicant does not satisfy the competent
authority of his eligibility to benefit from the provisions of
Article 10, admission may be withheld. This ground for refusal
would be additional to the 'public interest' reasons referred
to in Article 10.4.
"Subject to
those considerations, the Government is minded to accept Article
10 as part of a package which promises significant overall benefits
for the United Kingdom legal professions."
Conclusions
7.7 Although some
had reservations on Article 10, the majority of those who responded
to the consultation thought the compromise generally acceptable.
We therefore now clear the document.
18 (17518) 10221/96; see HC 36-iii (1995-96), paragraph 4 (13 November 1996). Back
19 That is, the choice given to Member States. Back
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