Home title in ECJ's hands

LAWYERS hoping to gain a permanent right of establishment in foreign countries may be aided by the European Court of Justice following an oral hearing in Luxembourg last week.

Italian authorities have asked the ECJ to interpret the 1977 Directive on Lawyers Services after German lawyer Reinhard Gebhard challenged the country's right to ban him from opening up a full-time office in Italy.

Depending on the court's interpretation of the two questions put to it, the hearing could form the basis for future arguments on the right of cross-border establishment.

The ECJ is being asked to decide whether Italian law, which prohibits the opening of an office, principal or branch in Italian territories, is compatible with the directive, and what the criteria are for distinguishing between temporary activities and a permanent presence.

With the issue currently high on the European legal agenda, lawyers say member states will be closely monitoring the progress of the case. However, a decision is not expected to be handed down before the June publication of the European Parliament's draft report on establishment.

Europe is currently divided over the issue, with France and Spain fighting the remainder of the EU in an attempt to make it compulsory for foreign lawyers to integrate into host state professions after five years.

Other countries are seeking legislation which would effectively provide for regulated free trade among the contin-ent's lawyers.

Solicitors European Group chair Garth Lindrup says he is “optimistic” that the reference to the ECJ will prompt progress in discussions among member states.

“If we're still where we are now 12 months down the line, I think the ECJ's ruling, on the assumption that it interprets community law in the way the English think it will, should prompt member states to resolve their differences on the subject,” he says.

“If it cannot be resolved through discussions it would be nice to think that the ECJ would hand down a ruling which would actually compel the member states to come to a resolution.”

The Law Society's international director Hamish Adamson says there is a “potential relevance” between the case and the directive, but “it is unlikely to produce a result which would mean that the directive is either unnecessary or needs to be completely changed”.

Nicole Maley