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Document 01998L0005-20130701
Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained
Consolidated text: Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained
Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained
01998L0005 — EN — 01.07.2013 — 003.001
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DIRECTIVE 98/5/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 16 February 1998 (OJ L 077 14.3.1998, p. 36) |
Amended by:
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Official Journal |
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No |
page |
date |
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L 363 |
141 |
20.12.2006 |
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L 158 |
368 |
10.6.2013 |
Amended by:
L 236 |
33 |
23.9.2003 |
DIRECTIVE 98/5/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 16 February 1998
to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained
Article 1
Object, scope and definitions
For the purposes of this Directive:
‘lawyer’ means any person who is a national of a Member State and who is authorised to pursue his professional activities under one of the following professional titles:
Belgium |
Avocat/Advocaat/Rechtsanwalt |
Bulgaria |
Aдвокат |
Czech Republic |
Advokát |
Denmark |
Advokat |
Germany |
Rechtsanwalt |
Estonia |
Vandeadvokaat |
Greece |
Δικηγόρος |
Spain |
Abogado/Advocat/Avogado/Abokatu |
France |
Avocat |
Croatia |
Odvjetnik/Odvjetnica |
Ireland |
Barrister/Solicitor |
Italy |
Avvocato |
Cyprus |
Δικηγόρος |
Latvia |
Zvērināts advokāts |
Lithuania |
Advokatas |
Luxembourg |
Avocat |
Hungary |
Ügyvéd |
Malta |
Avukat/Prokuratur Legali |
Netherlands |
Advocaat |
Austria |
Rechtsanwalt |
Poland |
Adwokat/Radca prawny |
Portugal |
Advogado |
Romania |
Avocat |
Slovenia |
Odvetnik/Odvetnica |
Slovakia |
Advokát/Komerčný právnik |
Finland |
Asianajaja/Advokat |
Sweden |
Advokat |
United Kingdom |
Advocate/Barrister/Solicitor |
‘home Member State’ means the Member State in which a lawyer acquired the right to use one of the professional titles referred to in (a) before practising the profession of lawyer in another Member State;
‘host Member State’ means the Member State in which a lawyer practises pursuant to this Directive;
‘home-country professional title’ means the professional title used in the Member State in which a lawyer acquired the right to use that title before practising the profession of lawyer in the host Member State;
‘grouping’ means any entity, with or without legal personality, formed under the law of a Member State, within which lawyers pursue their professional activities jointly under a joint name;
‘relevant professional title’ or ‘relevant profession’ means the professional title or profession governed by the competent authority with whom a lawyer has registered under Article 3, and ‘competent authority’ means that authority.
Article 2
Right to practise under the home-country professional title
Any lawyer shall be entitled to pursue on a permanent basis, in any other Member State under his home-country professional title, the activities specified in Article 5.
Integration into the profession of lawyer in the host Member State shall be subject to Article 10.
Article 3
Registration with the competent authority
For the purpose of applying paragraph 1:
Article 4
Practice under the home-country professional title
Article 5
Area of activity
Nevertheless, in order to ensure the smooth operation of the justice system, Member States may lay down specific rules for access to supreme courts, such as the use of specialist lawyers.
Article 6
Rules of professional conduct applicable
Article 7
Disciplinary proceedings
The first subparagraph shall apply mutatis mutandis where disciplinary proceedings are initiated by the competent authority of the home Member State, which shall inform the competent authority of the host Member State(s) accordingly.
Article 8
Salaried practice
A lawyer registered in a host Member State under his home-country professional title may practise as a salaried lawyer in the employ of another lawyer, an association or firm of lawyers, or a public or private enterprise to the extent that the host Member State so permits for lawyers registered under the professional title used in that State.
Article 9
Statement of reasons and remedies
Decisions not to effect the registration referred to in Article 3 or to cancel such registration and decisions imposing disciplinary measures shall state the reasons on which they are based.
A remedy shall be available against such decisions before a court or tribunal in accordance with the provisions of domestic law.
Article 10
Like treatment as a lawyer of the host Member State
It shall be for the lawyer concerned to furnish the competent authority in the host Member State with proof of such effective regular pursuit for a period of at least three years of an activity in the law of the host Member State. To that end:
the lawyer shall provide the competent authority in the host Member State with any relevant information and documentation, notably on the number of matters he has dealt with and their nature;
the competent authority of the host Member State may verify the effective and regular nature of the activity pursued and may, if need be, request the lawyer to provide, orally or in writing, clarification of or further details on the information and documentation mentioned in point (a).
Reasons shall be given for a decision by the competent authority in the host Member State not to grant an exemption where proof is not provided that the requirements laid down in the first subparagraph have been fulfilled, and the decision shall be subject to appeal under domestic law.
A lawyer practising under his home-country professional title who has effectively and regularly pursued a professional activity in the host Member State for a period of at least three years but for a lesser period in the law of that Member State may obtain from the competent authority of that State admission to the profession of lawyer in the host Member State and the right to practise it under the professional title corresponding to the profession in that Member State, without having to meet the conditions referred to in Article 4(1)(b) of Directive 89/48/EEC, under the conditions and in accordance with the procedures set out below:
The competent authority of the host Member State shall take into account the effective and regular professional activity pursued during the abovementioned period and any knowledge and professional experience of the law of the host Member State, and any attendance at lectures or seminars on the law of the host Member State, including the rules regulating professional practice and conduct.
The lawyer shall provide the competent authority of the host Member State with any relevant information and documentation, in particular on the matters he has dealt with. Assessment of the lawyer's effective and regular activity in the host Member State and assessment of his capacity to continue the activity he has pursued there shall be carried out by means of an interview with the competent authority of the host Member State in order to verify the regular and effective nature of the activity pursued.
Reasons shall be given for a decision by the competent authority in the host Member State not to grant authorisation where proof is not provided that the requirements laid down in the first subparagraph have been fulfilled, and the decision shall be subject to appeal under domestic law.
Article 11
Joint practice
Where joint practise is authorised in respect of lawyers carrying on their activities under the relevant professional title in the host Member State, the following provisions shall apply in respect of lawyers wishing to carry on activities under that title or registering with the competent authority:
One or more lawyers who belong to the same grouping in their home Member State and who practise under their home-country professional title in a host Member State may pursue their professional activities in a branch or agency of their grouping in the host Member State. However, where the fundamental rules governing that grouping in the home Member State are incompatible with the fundamental rules laid down by law, regulation or administrative action in the host Member State, the latter rules shall prevail insofar as compliance therewith is justified by the public interest in protecting clients and third parties.
Each Member State shall afford two or more lawyers from the same grouping or the same home Member State who practise in its territory under their home-country professional titles access to a form of joint practice. If the host Member State gives its lawyers a choice between several forms of joint practice, those same forms shall also be made available to the aforementioned lawyers. The manner in which such lawyers practise jointly in the host Member State shall be governed by the laws, regulations and administrative provisions of that State.
The host Member State shall take the measures necessary to permit joint practice also between:
several lawyers from different Member States practising under their home-country professional titles;
one or more lawyers covered by point (a) and one or more lawyers from the host Member State.
The manner in which such lawyers practice jointly in the host Member State shall be governed by the laws, regulations and administrative provisions of that State.
A lawyer who wishes to practise under his home-country professional title shall inform the competent authority in the host Member State of the fact that he is a member of a grouping in his home Member State and furnish any relevant information on that grouping.
Notwithstanding points 1 to 4, a host Member State, insofar as it prohibits lawyers practising under its own relevant professional title from practising the profession of lawyer within a grouping in which some persons are not members of the profession, may refuse to allow a lawyer registered under his home-country professional title to practice in its territory in his capacity as a member of his grouping. The grouping is deemed to include persons who are not members of the profession if
by persons who do not have the status of lawyer within the meaning of Article 1(2).
Where the fundamental rules governing a grouping of lawyers in the home Member State are incompatible with the rules in force in the host Member State or with the provisions of the first subparagraph, the host Member State may oppose the opening of a branch or agency within its territory wihtout the restrictions laid down in point (1).
Article 12
Name of the grouping
Whatever the manner in which lawyers practise under their home-country professional titles in the host Member State, they may employ the name of any grouping to which they belong in their home Member State.
The host Member State may require that, in addition to the name referred to in the first subparagraph, mention be made of the legal form of the grouping in the home Member State and/or of the names of any members of the grouping practising in the host Member State.
Article 13
Cooperation between the competent authorities in the home and host Member States and confidentiality
In order to facilitate the application of this Directive and to prevent its provisions from being misapplied for the sole purpose of circumventing the rules applicable in the host Member State, the competent authority in the host Member State and the competent authority in the home Member State shall collaborate closely and afford each other mutual assistance.
They shall preserve the confidentiality of the information they exchange.
Article 14
Designation of the competent authorities
Member States shall designate the competent authorities empowered to receive the applications and to take the decisions referred to in this Directive by 14 March 2000. They shall communicate this information to the other Member States and to the Commission.
Article 15
Report by the Commission
Ten years at the latest from the entry into force of this Directive, the Commsision shall report to the European Parliament and to the Council on progress in the implementation of the Directive.
After having held all the necessary consultations, it shall on that occasion present its conclusions and any amendments which could be made to the existing system.
Article 16
Implementation
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be adopted by Member States.
Article 17
This Directive shall enter into force on the date of its publication in the Official Journal of the European Communities.
Article 18
Addressees
This Directive is addressed to the Member States.
( 1 ) OJ C 128, 24. 5. 1995, p. 6 and
OJ C 355, 25. 11. 1996, p. 19.
( 2 ) OJ C 256, 2. 10. 1995, p. 14.
( 3 ) Opinion of the European Parliament of 19 June 1996 (OJ C 198, 8. 7. 1996, p. 85), Council Common Position of 24 July 1997 (OJ C 297, 29. 9. 1997, p. 6), Decision of the European Parliament of 19 November 1997 (Council Decision of 15 December 1997).
( 4 ) OJ L 19, 24. 1. 1989, p. 16.
( 5 ) OJ L 78, 26. 3. 1977, p. 17. Directive as last amended by the 1994 Act of Accession.
( 6 ) [1988] ECR 1123.