Lawyers

Procedure 

your application must be examined as rapidly as possible and a reasoned decision must be given no later than four months after you have submitted all the necessary documents. You may appeal before a court or tribunal against this decision or against any failure to hand down a decision. If, in the host Member State, lawyers are required to produce certain other documents, such as declarations of good character and good repute and evidence that they have not previously been declared bankrupt, the authorities in that State must, under certain conditions, accept documents issued in the Member State of origin.

Activity under "home-country professional title" 

Directive 98/5/EC (OJ No L 77 of 14 March 1998) gives all lawyers qualified to practise in another Member State in one of the capacities listed in Article 1 the right to practise in another Member State on a permanent basis, using the professional title gained in the home Member State. Under certain conditions, Member States can exclude some activities, such as the administration of estates of deceased persons and the creation or transfer of interests in land. Lawyers practising under their home-country professional title may, inter alia, give advice on the law of their home Member State, Community law, international law and the law of the host Member State. They must comply with the professional and ethical rules of both the host Member State and their home state. When representing clients in legal proceedings the host Member State may require lawyers practising under their home-country professional titles to work in conjunction with local lawyers who practise before the judicial authority in question.

Exemption from the aptitude test provided for in directive 89/48/EEC

You are exempted from the aptitude test if you have effectively and regularly pursued for a period of at least three years an activity in the host Member State under your home-country professional title (Art. 10 of Directive 98/5, OJ No L 77 14 March 1998). If this activity concerned the law of that State (including Community law) for at least three years, the competent authority may verify the effective and regular nature of the activity and may ask you, if need be, to provide clarification or further details. If this period of activity has been for less than three years, the authority must take into account all knowledge and professional experience of the law of the host Member State, as well as any attendance at lectures or seminars on the law of that state, and can ask you to attend an interview in order to assess your activity and your capacity to continue with it.

Provision of services 

The conditions governing the provision of services on an occasional basis by lawyers established in another Member State, under the home-country professional title, without prior recognition of their qualification, are set out in Council Directive 77/249/EEC, which facilitates the effective exercise by lawyers of freedom to provide services. In addition, the host Member State can require that when representing or defending a client in legal proceedings, lawyers practising under their home-country professional title must work in conjunction with local lawyers according to national law.

Academic recognition - incomplete training in home member state 

If you are not fully qualified to practise the profession of lawyer in your home Member State (for example, you have not completed the professional training required after a university degree), Directives 89/48/EEC, 98/5/EC and 77/249 are not applicable. The question of recognition of training periods including those such as university courses or (periods of) professional training, in order to continue training in another Member State is not covered by the provisions of secondary Community legislation. The rules are contained in the law of Member States and bilateral agreements between Member States, universities or Bars.

Nevertheless, the principle of non-discrimination and, under certain conditions, Articles 39 and 43 of the EC Treaty can be applied. In particular, if you have a degree in law from a university in a Member State and you would like to complete the period of obligatory, paid, professional training (which comes before or after the professional examination), you have the right to recognition of your diploma in accordance with the provisions of the EC Treaty. In Case C-313/01 Morgenbesser, the Court of Justice ruled as unjustified the requirement for paid trainee lawyers to have prior academic recognition of legal qualifications obtained in other Member States and indicated that the principles to be applied in this case are those arising from its own case law based on Articles 39 and 43 of the EC Treaty. The national authorities are therefore obliged to compare the applicant’s professional knowledge, as certified by his or her qualifications or acquired through professional experience, either in the Member State of origin or in the host Member State, with the professional knowledge certified by the qualifications required by national law. If the comparison reveals that these correspond only partially, the host Member State is entitled to require the person concerned to show that he or she has acquired the knowledge which is lacking. (See judgments in Case C-340/89 Vlassopoulou and in Case C-228/89 Heylens).

Information on the situation in Spain 

Procedure 

Directive 89/48/EEC was transposed into Spanish law with general effect by Royal Decree No 1665/1991 of 25 October 1991, with the result that lawyers qualified in another Member State and wishing to become members of the Spanish bar have to take an aptitude test in Spanish law. The Ministerial Order of 30 April 1996, published in Boletín Oficial del Estado No 112 of 8 May 1996 (p. 15939), lays down detailed rules on the recognition of lawyers' qualifications.

Under that Order, applications for recognition are to be sent to the Justice Ministry. If the Directorate-General for Relations with the Department of Justice grants the application, the applicant may take the aptitude test, which is held at least once each year. The applicant may apply to the appropriate bar for permission to follow any training that is provided for Spanish lawyers.

Where an aptitude test is required, it takes the form of a specimen case to be solved by the applicant (in writing and with reference to legislation), dealing with one or several of the areas covered by the Order of 30 April 1996, corresponding to the main areas of Spanish law, to be chosen by the examination board. The solution has to be read out to the board, which then asks questions covering the matters involved in the specimen case, the Spanish court system and the body of rules applicable to the profession.

In exceptional cases, the Directorate-General for Relations with the Department of Justice may decide that the applicant's qualifications should be recognised automatically without the need for an aptitude test, where the applicant provides documentary evidence (academic qualifications, certificates, diplomas, experience acquired in Spain, etc.) demonstrating satisfactory knowledge of Spanish law.

Applicants passing the test may become members of the colegio de abogados (Spanish bar association), entitling them to practise as abogados in Spain. Those failing may re-sit the test at a later date. Similar arrangements exist for access to the profession of procurador.

Foreign lawyers who are not members of the Spanish bar may provide advice on foreign and international law without the need for any special authorization and may collaborate with abogados, but do not have a right of audience before the Spanish courts.

Reference documents 

• Directive 77/249/EEC was transposed into Spanish law by Royal Decree No 607/1986 of 21 March 1986 (Boletín Oficial del Estado No 78 of 1 April 1986), as amended by Royal Decree No 1062/1988 of 16 September 1988. Under those decrees, a lawyer providing services who appears before a court or the public authorities must act in conjunction with an abogado who is registered with the appropriate bar.

Source: European Union
© European Communities, 1995-2005
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