Rebecca Zahn, Senior Lecturer in Law, University of Strathclyde
Lawyers occupy a unique position
in the European Union. Within their Member States, they play a vital role in
providing access to and administering justice, and upholding the rule of law.
As with other professionals such as doctors or architects, access to the
profession is tightly regulated by national bodies. Yet unlike other
professionals, lawyers are inherently immobile. The knowledge required to be a
lawyer is closely linked to the jurisdiction within which an individual trains
and qualifies. An understanding of the national language as well as of a
particular legal system’s customs and practices is vital for the exercise of
the profession. This makes the facilitation of free movement of lawyers
difficult. Lawyers can make use of the general system of Directive
2005/36/EC, which leads to full integration in the profession of the
receiving Member State following the successful completion of an aptitude test.
The European Commission’s Regulated
Professions Database suggests that 7,506 lawyers have availed themselves of
this route to gain admission to the profession in a host State.
Yet in recognition of their
special status, lawyers are the only professionals who benefit from an additional
regime designed to facilitate temporary and permanent free movement. Directive
77/249/EEC permits lawyers registered in one Member State to provide
temporary cross-border services in another Member State without any prior
notification. There are no statistics available on the use of this right but a 2012
study for the European Commission evaluating the Legal Framework for the
Free Movement of Lawyers suggested that there was a large market for the
temporary cross-border provision of services albeit with limited physical
movement; often such services are provided at a distance, for example by e-mail
or telephone.
Finally, Directive
98/5/EC allows lawyers to register to practice law on a permanent basis in
a host Member State. Article 3 of that Directive mandates that lawyers wishing
to practice in a host Member State register with the competent authority by
presenting their registration certificate. The competent authority shall
register the lawyer initially under their home-country professional title which
allows the lawyer to give advice on his home law, EU law, international law or
the law of the host Member State (Article 5(1)). Under Article 6, the host
Member State’s professional rules of conduct will apply to the lawyer’s
exercise of activity in that State. Following three years of practice in the
law of the host Member State, the lawyer can apply to be admitted to the
profession of lawyer in the host Member State (Article 10).
The Directive thus harmonises access to the profession under Article 3
while granting Member States discretion when it comes to integrating individuals through its own rules of professional
conduct. However, this hybrid nature of the Directive can lead to difficulties
as was made clear in a judgment handed down by the Grand Chamber of the Court
of Justice of the European Union on 7 May 2019 in Case C-431/17 Monachos
Eirinaios v Dikigorikos Syllogos Athinon.
The case concerned a Greek monk,
Monachos Eirinaios, who lives in a monastery in Greece. He is also a qualified
lawyer and a member of the Cyprus Bar Association. In June 2015, he relied on Article
3 of Directive 98/5 to register with the Athens Bar Association as a lawyer who
has acquired his professional title in another Member State. The application
was refused on the basis of the national rules on incompatibilities contained
in Article 8(1) of the Presidential Decree 152/2000 and Article 6 of the
Lawyers’ Code which prohibit a clergyman or monk from being a lawyer in Greece.
The Athens Bar Association argued that monks were barred from becoming lawyers
due to the absence of guarantees regarding their independence, doubts as to
their ability to occupy themselves fully with their functions and whether they
can handle contentious cases, the requirement for actual establishment in the
geographical area of practice and the obligation not to provide services
without remuneration. Monachos Eirinaios appealed the decision and the Council
of State referred a question to the Court of Justice asking whether Article 3
of Directive 98/5 required the Athens Bar Association to register Monachos
Eirinaios even though he would not be allowed to practice once registered.
In a short judgment, the Court
reiterated that Article 3 of Directive 98/5 harmonises the rules under which a
lawyer can establish himself in a host Member State. Provided that the lawyer
is fully qualified and has the requisite certificate from the home Member
State, the host Member State authorities must
register him regardless of whether he is subsequently able to practice.
National authorities are not permitted to impose additional conditions for
registration other than those contained in article 3. This follows from the
decision in Case C-58/13 Torresi
(discussed here)
where the Court established the mutual recognition of the professional titles
of lawyers. The Court recognised the absurdity of the situation in Monachos Eirinaios where it was
requiring the competent authorities to issue a registration certificate with
the knowledge that the individual would not be able to practice.
However, the Court drew a clear
distinction between access to the profession on the one hand and its practice
on the other hand. The Court accepted that in relation to the latter national
authorities may wish to impose certain requirements in order to maintain
professional standards. The Court did not comment on the nature of the complete
ban on monks becoming lawyers (saying only that it could not be a prerequisite
for registration) but instead required the national court to determine whether
the ban complied with the principle of proportionality (without giving specific
guidance on the criteria to be applied).
The decision in Monachos Eirinaios follows on from the
Court’s previous jurisprudence on Directive 98/5 which has focussed on
facilitating the free movement of lawyers. In doing so, it is to be welcomed. Given
the sensitive nature of the topic both in terms of access to a highly regulated
profession and, in the specific Greek context, of the evolving relationship
between church and state, the decision also strikes a subtle balance between
facilitating access while maintaining Member State discretion. It is therefore
perhaps not surprising that the case was heard by the Grand Chamber. However, by
circumventing any discussion of the complete ban on monks and clergymen
becoming lawyers, the Court has indeed created an absurd situation; namely,
that the Athens Bar Association is required to register Monachos Eirinaios and
can then immediately strike him off. More detailed guidance on the
proportionality test to be applied in these circumstances could have been
beneficial especially as the Advocate General engaged
in a more nuanced discussion of the topic.
The Advocate General suggested
that the rule bans all individuals with particular characteristics from
practicing law and thus should not fall under professional conduct. This is a
well-spotted flaw in the rules. The Advocate General suggests instead that the
Bar Association should be required to see how a lawyer conducts himself in
practice before removing registration (following the reasoning in Case C-225/09
Jakubowska
where it was recognised that failure to comply with host State rules may lead
to a foreign lawyer being removed from the register).
In this, she is correct. In
effect, the Bar Association is making an assumption that monks are incapable of
fulfilling the rules of professional conduct required of lawyers because they are monks. There is no need
for any assessment as to whether the monk (or clergyman) is practicing his
religion. Indeed, there is also no clear definition of the scope of the
definition of monk or clergyman for the purposes of the Directive (what if, for
example, someone is a lay preacher in another Member State – does this classify
as a clergyman in this instance?). If Directive 98/5 is to facilitate free
movement of lawyers then there must be a minimum harmonisation of what we
understand ‘rules of professional conduct’ to be under Article 6. Blanket bans
which relate to characteristics (and do not allow conduct to occur) do not
facilitate free movement and render the right to registration in effect nugatory.
Moreover, the procedural
guarantees in the case of disciplinary procedures in Article 7 or the right of
recourse to a court in Article 9 of the Directive only apply once an individual
has practiced as a lawyer which is rendered impossible in this case. If we
abstract this case from its specific facts then accepting such a blanket ban in
relation to a characteristic is a potentially problematic assumption which
could undermine the rule of law. What if a Member State introduces rules which
require political party affiliation in order to practice as a lawyer under the guise
of professional rules of conduct? In a different factual context, the lack of
minimum harmonisation of what we understand rules of conduct to encompass could
undermine lawyers’ ability to provide access to and administer justice. In
skirting around this topic, the Court of Justice has missed an opportunity to
further clarify the scope of Directive 98/5/EC.
Barnard & Peers: chapter 14
Photo credit: InHouse Legal
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