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Europe accounts for around half of the UK’s legal services exports. But Brexit has brought new challenges to lawyers from England and Wales working in Europe. When the UK was part of the European Union (EU), they were entitled to European legal privilege and were able to advise on European law, and English court judgments were easily enforced throughout the EU. This was also how up-and-coming lawyers in areas like competition, litigation and corporate M&A built their knowledge and their practices.

But despite the frustrations of working within the post-Brexit legal settlement, the EU still is still keeping our profession busy.

Peter Willis is a partner in Bird & Bird’s competition and EU practice group, advising clients in highly regulated and technically complex markets. ‘Until Brexit, we were all EU lawyers, so English lawyers advising UK and foreign clients could appear before the European Court of Justice, and a lot of English lawyers were advising big international companies,’ he says.

As Willis is admitted to practise in England and Wales, and Ireland, and is also registered to practise at the Brussels Bar, his position has not changed. Nor have there been fundamental changes to the law. ‘UK competition law is based on EU competition law. When we left the EU we did not instantly get rid of 60 years of case law,’ he says. ‘While areas of divergence are appearing, so far they are relatively minor, so a thorough understanding of EU competition law is still important – and universities are still teaching it.’

Brexit does not mean there is less work for England and Wales lawyers advising on competition, merger control and cross-border disputes. In fact, the 2022 LexisNexis Gross Legal Product Index (GLP Index) predicts that demand for competition lawyers will grow by 32% in 2023. The Index notes that this is being driven by the UK’s departure from the EU, the Competition and Markets Authority’s (CMA) focus on antitrust enforcement, and investment issues around national security and sustainability.

‘We’re seeing a serious increase in competition work, both with the CMA becoming more muscular in its approach, and the spin-off litigation from CMA findings – the class action issue – making CMA filings [more] important not just in themselves, but in the impact they’ll have further down the line,’ says Tony Williams, principal at legal consultancy Jomati. ‘Given the growth of class actions linked to competition, and the UK developing its own competition regime… I think competition will be a growth area across the world, especially as there seems to be some rowing back on globalisation, and more focus on national interest – and national champions of industries – which raises state aid and other issues.’

Brexit has created a more complex regulatory environment. ‘Previously, the CMA was part of the competition network and coordinated with the European Commission, so if a merger qualified for investigation under EU merger rules, it would also qualify in the UK, so if you were notifying a deal in Brussels you didn’t have to notify it elsewhere,’ says Willis. ‘Post-Brexit, more transactions need to be notified both in Brussels and in the UK, so there is more work involved. Furthermore, UK businesses involved in international markets are still subject to EU competition law.’

Complex regulatory environment

Navigating a more complex regulatory regime is boosting lawyers’ workload as post-Brexit competition law, merger control and enforcement is now split between the European Commission and the CMA, and some transactions require clearance from both. Before Brexit, competition matters were regulated at EU level. In 2021 the CMA’s role was expanded to include investigating cases with implications for global competition, mergers and anti-competitive behaviour. In April 2022, the government promised it additional investigative and enforcement powers. The European Commission and the CMA can investigate cases in parallel, but the CMA will make decisions based on UK market implications. In 2022, about 80% of new cases taken up by the CMA were related to mergers, a total of 53 new cases, a figure that is expected to increase in 2023.

The UK’s departure from the EU, the CMA’s heightened stance towards competition enforcement, and new security and sustainability measures coming into play have created a mountain of work for competition lawyers.

Commenting in the LexisNexis Market Tracker Report, Nicole Kar, partner and global head of the antitrust and foreign investment group at Linklaters, said: ‘The CMA has been super-charged by these reforms, both in merger control and other areas of competition and consumer law. This follows a trajectory of increasing interventionism by the CMA, which has been compounded by the addition of EU-sized cases to its docket following Brexit.’

‘Brexit has certainly led to more law,’ says Alexander Rose, a partner at DWF who specialises in subsidy control, EU state aid law and grant funding programmes. He explains that earlier in January a new law came into force closing a loophole in state aid law. ‘The flipside is that UK law is also complicated,’ he adds. ‘In the old days you only needed to know one set of rules, but now if you’re an international lawyer you need to be familiar with both.’

Hogan Lovells partner Christopher Hutton says it is hard to say whether the uptick in competition work stems from Brexit or other factors: ‘Although the requirement for parallel reviews is creating more work for lawyers, we’re seeing a global focus on anti-trust enforcement across multiple sectors.’

While increased demand for lawyers and an increase in instructions involving either or both the UK and EU institutions make competition law an attractive career choice, Brexit has brought new challenges to England and Wales lawyers aspiring to an international career linked to Europe.

Barriers to practising in the E

Marco Cillario, international policy manager at the Law Society, says there are two main challenges for English lawyers aspiring to an international career in Europe: the status of their professional qualifications and the immigration regimes of the EU’s member states.

‘Post-Brexit, there is no longer automatic recognition of UK legal qualifications across the EU, and each member state regulates its own legal services,’ Cillario says. ‘While EU lawyers’ ability to practise across the EU is harmonised through EU directives on the mutual recognition of professional qualifications [MRPQ], post-Brexit, English-qualified lawyers no longer qualify for protection under the directives.’

Cillario explains that while Brexit places some barriers in the way of English lawyers practising in the EU, ‘we do not envisage that it will change the importance of the EU for the UK legal services sector’. This, he adds, ‘is why the Law Society is taking every opportunity to push for better arrangements for MRPQ, and more clarity around immigration and business travel to the EU for UK citizens’.

Navigating a career path to Europe

There is, then, a positive outlook around opportunities for interesting work in these practice areas. So how should a trainee or a recently qualified lawyer in the UK develop a career in practice areas that have traditionally focused on the EU, such as competition, cross-border disputes and the regulatory side of mergers, now that the UK is no longer part of the EU?

The UK continues to punch above its weight in the international legal market, but the high demand for advice creates another problem for firms. Jonathan Branton, head of EU/competition at DWF, points out that the ‘UK has always been good at importing competition lawyers into London and pretty much all the top UK firms have someone in their competition team who’s not a UK national. We certainly do’.

Another opportunity that is no longer available to English lawyers is participating in the European Commission’s structured traineeship programme as a stagiaire (trainee). Although larger firms can organise secondments between their UK and European offices, these do not offer the same broad networking opportunities.

Still, Michael Okkonen, EU competition partner at Dechert in Brussels, observes that there are opportunities in the UK for English competition lawyers to gain experience with the regulator.

‘The CMA is establishing itself as a force to be reckoned with, and has become more active in certain areas, such as merger control, since Brexit,’ Okkonen says. ‘This is coupled with the new national security review that was introduced by the National Security and Investment Act 2021 and enforced by the government’s Business, Energy & Industrial Strategy [BEIS].

‘Against this background, clients are increasingly looking for UK competition law experts who have in-depth experience with the CMA and BEIS. Apart from working on complex matters on the private practice side, the CMA is running secondment opportunities for practitioners to gain exposure to the inner workings of the authority.’

Dual qualification transcends borders

Many leading EU competition lawyers in the UK get around the qualification limitations by qualifying to practise in one or more European member states. However, this has also become more complicated post-Brexit.

Pre-Brexit, the UK benefited from the system that allows EU lawyers to move between jurisdictions. When a lawyer moves from one EU state to another, they can register with the new member state’s local bar and become a Registered European Lawyer (REL), and after three years continuous registration and practice, they can qualify into the host country’s legal profession. The REL route to working in Europe is no longer open to English and Welsh lawyers, and each member state has its own requalifying procedure, which often requires going back to university.

Two exceptions are France and Ireland. In France, there is the ‘Article 100’ test, the exam route through which most non-EU lawyers must pass for the right to enrol in any French regional bar. In Ireland, because of similarities between its legal system and that of England and Wales, English solicitors can requalify as Irish solicitors without sitting an exam, which is the obvious workaround. But as Branton observes, maintaining multiple practising certificates is relatively complex and expensive – deliberately so, as the Law Society of Ireland is trying to discourage lawyers who have no intention of practising in the country from using this route.

'Over time, there’ll be a generation of lawyers who are only UK competition lawyers, rather than UK and EU'

Jonathan Branton, DWF

While it might make sense for an aspiring international lawyer to apply to firms with European offices, London firms are not going to send UK lawyers abroad just so that they can qualify in Europe, says Branton. Instead, they will simply hire locally qualified lawyers.

‘While London firms will continue advising on EU competition law, and they have loads of lawyers with qualifications and experience, over time, there’ll be a generation of lawyers who are only UK competition lawyers, rather than UK and EU,’ he predicts. ‘Those people will not have the same EU focus as they’ll not generally get to spend time in Brussels and get familiar with EU institutions, and the need for EU competition law will gradually be taken up by others.’

In terms of business travel, relations between the UK and EU are now regulated by the EU-UK Trade and Cooperation Agreement (TCA) which includes some provisions for mobility. For example, a firm can transfer a trainee or an NQ to its EU offices for up to one year, and managers and experts for up to three years.

‘Other provisions allow UK lawyers to practise under home title in some EU member states,’ says Cillario. ‘This means that English solicitors can travel to Brussels and advise on English law and public international law.’

Cillario adds that while these provisions are welcome, the TCA still lacks effective MRPQ arrangements for solicitors looking to requalify in the EU.

‘We have also called on the UK government to seek to negotiate youth mobility schemes that allow young people to spend time working in other EU countries,’ Cillario adds. ‘These will be valuable to those who are training to be lawyers and recently qualified.’

In the past, Cillario notes many UK law firms gave trainees and NQs an opportunity to spend time in an EU member state. He says it is important that firms ‘have the ability to offer this opportunity. Many of the most successful lawyers in EU-related practices rely on the network of connections they built across the EU having spent time there as trainees’.

While the TCA provisions do not provide for this, they will be reviewed in May 2026, five years after they came into force, and that could provide a chance to make improvements, Cillario says.

Notwithstanding the various barriers and limitations, EU and competition law is a popular choice for graduate trainees. In addition to his competition work, Hutton is also Hogan Lovells’ graduate recruitment partner, and the firm has seen an increase in international applications since Brexit.

‘We’re still doing lots of international work, and competition law is as popular as ever,’ Hutton says. ‘Hogan Lovells has an office in Dublin and most of our competition lawyers are qualified in another jurisdiction, and we are still handling cases before the EU courts.’

Hutton notes that there has been growth in the UK competition law sector since Brexit: ‘Even if you took out the international aspects, there’s still a lot of interesting competition work, particularly given the scale of private enforcements, damages claims, and standalone claims in the courts, which are a big part of everyone’s practice.

‘Brexit has led to an expansion of competition enforcement, in addition to parallel investigations. And firms are still involved in global work outside Europe. One of the most attractive things about competition law is the range of disciplines involved: merger control, investigatory work, litigation etc, and that’s not going to go away.’

Okkonen makes a similar point: ‘There are a number of stellar practices specialising on all aspects of UK competition law, including cartels, abuse of dominance and merger control, that have given rise to some of the heavy-hitters in the industry. Such firms usually invest in training and facilitate the growth of the next-generation experts.’

 

Joanna Goodman is a freelance journalist