EC moves nearer host state solution

EUROPE will move closer to resolving the argument over cross-border establishment this week after a working document commissioned by the parliament called plans for compulsory integration into question.

The document, prepared by French MEP Nicole Fontaine, flies in the face of European Commission thinking, which proposes compulsorily integrating lawyers into host state professions after five years.

Fontaine, who discusses her views with the Legal Affairs committee this week, appears to back the majority view of allowing lawyers to move freely on the continent.

“Is it really necessary to require a professional, who does not wish to use the host state title, to return to his or her home state to practise law?” asks Fontaine.

She also questions the need for aptitude tests – which are currently enforced by legislation – saying relations in Europe are based on mutual trust and a more liberal attitude may need to be adopted. However, she agrees consumers of legal services should be protected.

Preceding Fontaine's document was last week's release by the Advocate General of his opinion in the case of German lawyer Reinhard Gebhard. The Italian authorities are threatening to ban Gebhard from opening a permanent office in Italy.

The comment, which many hoped would shed light on the establishment debate, said the issue was “a question of national law which has not yet been harmonised”. Lawyers, who had hoped for greater clarification, are now looking to the European Court of Justice and the Parliament for answers.

Current dissent among members of the Council of Bars and Law Societies of the European Union has meant a unanimous opinion has not been reached.

The French and Spanish Bars, which want to force lawyers to join host state professions or to cease practising law in the host country, last year issued a joint declaration disagreeing with the remainder of the CCBE.

Patrick Oliver, Brussels representative of the Law Societies of England and Wales and Scotland, says he is encouraged by Fontaine's viewpoint, in particular that she “appears not to see any justification for asking lawyers to integrate or depart”.

“I hope that the Parliament will send a loud message to the European Commission urging it to amend its original proposal,” he says.

CCBE president Heinz Weil was unavailable for comment.

Nicole Maley