Who can be a lawyer? Two more cases

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I meet regularly with representatives of other professions at European level.

The legal profession has a number of special features: it is regulated in every EU country, which is not the case with most, if not all, of the others.

Secondly, the route to cross-border movement lies not in recognition of qualifications (university and course attended, for instance), but in recognition of the professional title – such as solicitor – that the lawyer has received from the bar, regardless of the route locally permitted.

And lawyers have their own special EU directives on free movement and qualification.

These differences have led to another special feature, which is a growth in cases dealing with who can be a lawyer. A few weeks back I wrote about the Koller case. This week sees two more, which have been recently decided.

The first is Ebert (Case C‑359/09). Mr Ebert is a German lawyer from Düsseldorf, based in Hungary, who is registered as a European lawyer under his home German title in Hungary.

However, he wanted to become a Hungarian lawyer, too. He applied to the appropriate ministry to sit the aptitude test; the ministry sent the application to the local bar, which said that it could not decide since the ministry had to decide – and the case reports that no decision had yet been taken by the ministry.

So Mr Ebert, who had also taken a Doctorate of Law in Hungary, and set up his own firm there, applied to the court to grant him the right to use the Hungarian title ‘ügyvéd’ (lawyer) without becoming a member of the bar.

The Court decided that there was nothing in the relevant European directives to preclude bar membership being a requirement in such cases, meaning that Mr Ebert could not just accord himself, or be accorded, the professional title without being a member of the bar.

You may think that this is an obvious outcome. But at a time when, as I reported recently, the role of compulsory membership in bars is again being questioned, it is a confirmation from the supreme judicial authority in the EU of the continuing necessity of bar membership.

The second case – Jakubowska, Case C-225/09 – arose out of a €200 claim for damage to a car by a man out walking with his dog in Italy. The plaintiff hired the services of two lawyers, who both happened to be part-time civil servants.

The Perugia Bar subsequently removed them from the list of lawyers, because there is an Italian law forbidding part-time civil servants from also being lawyers.

The plaintiff protested, and her €200 claim led to the European Court of Justice settling whether Italian law is compatible with European law. The judgement is curious, and mainly has impact on the good old question of employed lawyers, and a Member State’s ability to put conditions on them.

Nothing that happened at European level had anything to do with the substantive claim on the €200 damage to the car, only about the right of lawyers to remain on the bar list. You may think that this is the most expensive and time-consuming dog walk in history.

The Italian court had originally referred five questions to the European Court, not all of which were deemed admissible.

For instance, the Italian court asked questions about the lawyers’ free movement directives, which were not in question in an all-Italian case where no-one crossed a border.

Yet the Court still considered the impact of the Establishment Directive on the grounds of helping the local court prevent reverse discrimination against national lawyers.

The Court finally found that "it is open to a host Member State to impose on lawyers registered with a Bar in that Member State who are also, whether full or part-time, in the employ of another lawyer, an association or firm of lawyers, or a public or private enterprise, restrictions on the exercise of the profession of lawyer concurrent with that employment, provided that those restrictions do not go beyond what is necessary in order to attain the objective of preventing conflicts of interest and apply to all the lawyers registered in that Member State."

In other words, the law requiring part-time officials to be deregistered from the bar list was perfectly OK, and the plaintiff was therefore not free to use those lawyers. The Court also held that it was not against competition rules for there to be a law deregistering lawyers in this way.

I suppose it is obvious that lawyers - of all the liberal professions - will be the ones to use the courts to decide who can and cannot be a lawyer.

The European system, which, as I mentioned, treats lawyers in a more distinct way than it treats other professions, seems to invite applications to find out exactly where the border-line lies.

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents around a million European lawyers through its member bars and law societies