Last month there was a plenary meeting in Dresden of representatives from all the Bars and law societies of the European Economic Area – the member states of the EU, plus Norway and Iceland.
The organisation bringing the legal professions of these countries together – the Council of Bars and Law Societies of the European Union (CCBE) – holds two such plenary meetings a year. This one was of particular importance, since the main topic on the agenda was a search to the long-lasting struggle to agree a line on the Establishment Directive, which has been dogging the organisation for more than a dozen years.
The CCBE had already come to a position on establishment, but was taken by surprise when the European Commission published a draft directive in December 1994 which did not go along with the CCBE's line. The CCBE had to respond to the draft which meant rehashing all the arguments.
The two main issues to be settled were, first, whether a lawyer should have a temporary or permanent right of establishment under home title in another member state; and, second, whether a lawyer should be integrated automatically or by discretion into a host state after a certain number of years.
The UK line on both these issues is clear. We want a permanent right of establishment under home title in other states, without qualification. We also want some discretion in deciding which lawyers should be admitted as solicitors in England and Wales. We have a strong alliance with the German delegation. The main opposition came from the French, who want only a temporary right of establishment and want there to be more or less automatic integration into the host profession after three years.
There were endless negotiations and compromises in the lead-up to the Dresden Plenary. But the UK and German delegations came up with a set of amendments we believed all delegations could agree on, and decided there should be a formal and final vote on the matter. We thought the French had indicated they could live with our amendments and were surprised when they brought out their own counter-amendments.
In the end, our amendments were passed. The French could muster only three delegations to oppose them – Spain, Luxembourg and France itself. Every other delegation voted in favour. As a result, a permanent right of establishment under home title is now the official CCBE line on the draft Directive, together with a non-automatic approach to integration.
Nobody should get too excited as it is by no means the end of the establishment debate. All that has happened is that the CCBE has come to a view on the Commission's draft. The draft itself will now continue through the complicated legislative co-decision process which will last many months and be subject to the political will of MEPs and governments. We are fairly sure there will be political pressure from the French for the draft Directive to be changed in line with its views. Meanwhile the Law Society will be making sure the majority who voted in favour of the CCBE line will have its wishes protected.