Law: Free trade in Europe for legal services: A new directive will enable lawyers to practise more easily in member state countries, writes Adam Sage
Friday 05 November 1993
The European Commission will produce a directive within the next two months enabling, for instance, English solicitors to practise in France without having to undergo the arduous tests that presently accompany such a move.
When the text finally emerges lawyers throughout the European Union will breathe a collective sigh of relief. But nowhere will this be louder than in England.
London has long been pressing for the legal world to be included among those services enjoying the sort of free trade envisaged under the Treaty of Rome. In theory, such measures should help City firms who want to build bigger bases on the continent.
Until recently, however, it has been difficult to persuade bars and law societies in the EU's member states that they should be bound by provisions covering the free movement of goods and services. Lawyers in some countries have argued that their counterparts from other EU states should only be allowed to practise if they become members of the local bar.
This has led to some anomalies. In Paris, for example, qualified English solicitors cannot advise clients or have their names printed on company notepaper unless they are qualified as French avocats and these rules apply even to giants such as Slaughter and May and Clifford Chance. In practice, a majority of solicitors in the larger firms have been in Paris for many years and qualify as members of the local bar by dint of their experience.
Some smaller firms simply ignore the rules in anticipation of the liberalisation that Brussels is certain to order. Nevertheless, the restrictions create tactical problems. Many firms would like to rotate their partners, enabling people to spend a couple of years in Europe and then return to London. But legally, this is difficult. If solicitors arrive from England, they are unlikely to be given permission to practise until they have completed local law exams, a process that takes time and energy.
Peter Kett of Slaughter and May, one of 19 well-known English firms with offices in Paris, says that partners who have not qualified as members of the local bar 'come out as an assistant or collaborator'. He says the French bar has agreed in principle to abolish, or at least reduce, the tests for 'eminent solicitors', but that these measures have yet to be implemented.
Hence the need for a directive from Brussels pointing out that this is not exactly what the founders of the EU had in mind. Until last year, it seemed that such a directive would never see the light of day, with the Council of Bars and Law Societies of the European Community (CCBE) unable to persuade its members to reach a compromise agreement. But 12 months ago, the French, who had been one of the most obdurate opponents of an accord, accepted the need for liberalisation, paving the way for a crucial breakthrough.
A draft was submitted by the CCBE to the European Commission, which, after assuring itself that governments of the member states supported such a move, agreed to produce the crucial directive. Lawyers had hoped that this would be published this month, but a series of delays has almost certainly postponed its release until December.
The directive should say that solicitors can practise for a few years - probably up to three - in another member state without having to qualify at the local bar. They will only have to take local exams if they want to stay longer.
'It should be possible to solve the problem of rotation of partners,' says Hamish Adamson of the (English) Law Society. But some problems will remain. Although English lawyers will be able to establish themselves in other EU countries more easily, there is no guarantee that they will be able to practise anything other than English law. If, for instance, English solicitors in Paris want to advise a British client trying to buy a French company, they will still be forced to involve a local lawyer, according to Mr Kett.
This might only be a small problem (English lawyers in Paris for less than three years are almost certain to want to ask the advice of French lawyers on important issues anyway) but it could be frustrating on occasions, Mr Kett says.
Equally frustrating is the slow speed at which European bureaucracy works. Even after the directive is published, it will have to be shunted through a series of committees and will probably not come in to force before 1995, perhaps 1996.
Not that this will temper the overall welcome that the legal community will give the directive. John Toulmin QC, an English barrister and president of the CCBE, says: 'It is badly needed.'
His view is echoed by Dominique Gatti, a lawyer in the Paris office of Clifford Chance, now the second biggest law firm in France. She said the firm welcomed all moves towards liberalisation as they would benefit major clients. 'For clients such as Boots and Marks & Spencer, it is clearly best to have lawyers who understand both the French and the English legal system.'
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