THE EUROPEAN Court of Justice has handed down a judgment supporting the Council of Bars and Law Societies of the European Union in its majority opinion on establishment.
The judgment, which interpreted the 1977 Directive on Lawyers' Services and Article 52 of the Treaty of Rome, came after the Italian Bar attempted to prevent German lawyer Reinhard Gebhard from opening up a full-time office in the country.
Italian authorities asked the ECJ to interpret the directive and to spell out the criteria for differentiating between temporary activities and a permanent presence.
The judgment has an offshoot effect on the argument over rights of cross-border establishment, ruling that plans to direct a temporary right limited to five years – the position supported by France and Spain – would need to fulfil four conditions before the fundamental freedoms guaranteed in the Treaty were preserved.
The conditions which were laid down by the court specified that “national measures liable to hinder or make less attractive the exercise of fundamental freedoms” must:
be applied in a non discriminatory manner;
be justified by imperative requirements in the general interest;
be suitable for securing the attainment of the objective which they pursue and not go beyond what is necessary in order to attain it.
Patrick Oliver, the Brussels representative of the Law Societies of England and Wales and Scotland, said the judgment had come at a “critical” time.
He said the court's conditions meant a temporary right of establishment would now contravene Article 52, and it was hoped the passage of the CCBE's proposal through Parliament would be expedited.
“It is a very significant judgment in the establishment debate,” said Oliver. “It supports the majority view taken by the CCBE in Dresden last month and hopefully it will accelerate even more the settling of the establishment question.
“A temporary right of establishment under home title which is limited to five years will not meet those four conditions. In other words, a temporary right of establishment would be contrary to the court's judgment.”