Law: Sorry, Monsieur, the Bar is closed: Bureaucracy is keeping foreigners out of France's legal system despite an EC directive, says Sharon Wallach
Friday 04 December 1992
Mr Jacobs, who is 30 years old, has a mind to qualify in all the major international jurisdictions. The latest step in his quest has taken him to Strasbourg, where he has devoted the past 18 months to the French language and legal studies at Strasbourg University and the Centre de Formation Professionnelle des Avocats (the French Bar school).
He also works part-time in a Strasbourg law firm, which, strictly speaking, French law does not allow. His frustration with local bureaucracy has led him to a point of not caring whether he gets into trouble or not.
He explains his dilemma. 'Originally, in order to requalify in France you had to go through the entire training process, including a French law degree,' he says. 'The revolution came with the EC directive on the mutual recognition of diplomas.'
The directive was formulated in December 1988. Its intention was to allow lawyers, and other professionals, to requalify by passing a 'top-up' aptitude test that examined language competence and knowledge of the legal structure in the relevant country.
Mr Jacobs wants to take the test, but the mechanism is not yet in place in France for him to do so. The directive should have been incorporated into each member state's legislation by 4 January 1991. Nearly two years later, France has still to comply.
'Every relevant authority has said that it is not possible for me to take the test until regulations to comply with the directive have been written,' Mr Jacobs says. 'The National Bar Council, which will administer the exam, has only just come into being. It has had some 100 applications to take the test, but it has no idea what it's doing.'
Mr Jacobs's application was originally accepted under the old system, with a test due to take place last month. He was subsequently told that the old test was no longer available and that he would have to apply to the National Bar Council.
'One slight problem was that the council's first elections were annulled and new elections took place only on 14 September,' Mr Jacobs says. 'A further difficulty was that the law provides that the council issues a receipt for appli
cations and then has four months in which to make a decision regarding eligibility. But because the regulations for the exams have not been prepared, the council has simply decided not to issue
Mr Jacobs has made a formal complaint to the European Commission and challenged the council's decision not to issue a receipt in the Paris court of appeal. The day the appeal was accepted, the council issued a receipt, but Mr Jacobs is continuing with the action, to ask for the backdating of the receipt. He will also argue that the idea of such a receipt was not part of the original directive. The appeal is to be heard in 10 days' time.
In any event, possession of a receipt is not all that useful since the regulations to set up the test have still not been passed, although the French Ministry of Justice has promised to release them before the end of the year. 'I will believe that when I see it,' Mr Jacobs says. And the actual testing procedure would still have to be decided, which could take another year.
The whole affair arises, he believes, from a combination of inefficiency and xenophobia. There is no co-ordination between the various authorities, who all blame each other for the delays. 'I also strongly suspect that there is an element of protectionism, to try to keep non- French lawyers, who have been very successful in Paris eating up a lot of the juicy international work, out of the market,' he says.
France passed a law, which took effect at the beginning of this year, that created a legal monopoly. It became a criminal offence for anyone not a member of certain legal professions (including avocat and conseil juridique) to give legal advice, even on a matter of non- French law.
Many of the foreign lawyers working in France were automatically empowered by the new provisions. Firms such as Clifford Chance and Theodore Goddard, for instance, were already conseils juridiques; others, including Linklaters & Paines, qualified under old EC provisions giving them the right, if they had practised there for 18 months, to become members of the local bar.
But people applying now to practise in France are falling between two stools, says Hamish Adamson, international director at the Law Society. 'There is no aptitude test yet, nor any route as there was before simply to practise as lawyers of their home state.'
Mr Adamson says that if a draft directive on rights of establishment for lawyers, agreed by the Council of Bars and Law Societies of Europe, is adopted by the Commission, solicitors would be allowed to practise from branch offices in other European cities. However, this will not help those wanting to requalify as French lawyers.
He suggests that there is a case for people such as Mr Jacobs to argue that if the member state has not set up the test, it should admit him to the local system on the strength of his home state qualification.
'It is likely to be disputed and would take time to resolve,' Mr Adamson says. 'But the argument is open in theory, and might even be supported by the Commission.'
According to David Hopkin, international promotion officer at the Law Society, a number of other jurisdictions are being slow in introducing the regulations, including the Netherlands and Belgium. In most countries, including the United Kingdom, though, the enabling legislation has gone through its parliamentary stages, giving the relevant authorities the right and duty to set up the tests. 'The fact that these authorities have not set up the tests in certain localities suggests that the Commission might be able to take action for non-implementation,' Mr Hopkin says.
But the home country's law society can do little. 'We make representations as soon as we hear details of individual cases, but the principle of subsidiarity applies, and we can't interfere in other member states' legal professions.'
Since Britain implemented the EC directive in March last year, some 260 foreign lawyers have requalified; most are Irish or from Commonwealth countries, to whom the same top-up test applies.
Meanwhile, Iain Jacobs is already thinking ahead to his next move. 'Assuming I do requalify in France, I may go on to Germany,' he says. 'After that, I'm not sure whether it would be worthwhile to try for qualifications elsewhere, as other important systems are based on either the French or the English.'
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