In this New Year, there is a new name to be added to the roll call of names that have contributed to the development of the practice of law in Europe, by bringing a case to the European Court of Justice. Added to those on the list such as Gebhard (1995, establishment under home title), Wouters (2002, bars can ban MDPs) and (2003, free movement of law students around the EU) is to be added that of Robert Koller.
I wrote very briefly about Mr Koller 18 months ago, when his case was first referred to the court. The judgment came out just before Christmas – and he won. The long-term consequences are likely to be a greater convergence of lawyer training regimes around Europe, at least in terms of their duration, to avoid the kind of forum shopping which was the consequence of Mr Koller’s actions.
The facts are as follows. Mr Koller took his law degree in Austria over a period of four years. Then he went to Spain and took some exams at the University of Madrid over a period of less than three years, which ended in his Austrian law degree being recognised as the equivalent of a Spanish law degree. Armed with that, he registered with the Madrid bar and became a Spanish ‘abogado’. Within a few weeks of being granted this title, he applied for admission to the Austrian bar under the European free-movement legislation, and asked to be exempted from having to take any further examinations in order to be admitted. He was refused by the board which deals with such things, and the matter was eventually referred to the European Court.
The Austrian authorities were not very happy with his actions. They believed he had tried to avoid their requirement for practical experience. Normally, after a four-year law degree, you have to undertake five years of practical experience in order to become an Austrian lawyer (including at least nine months at a court or public prosecutor’s office, and at least three years with a lawyer in Austria). That means it takes nine years to become a lawyer in Austria, whereas Mr Koller – by leaving the country and requalifying in Spain – was hoping to achieve the same end in between six and seven years. As it happens, Spain will shortly implement further steps to becoming an ‘abogado’, and so forum shopping in Spain might be less attractive, but the principle of the Koller case remains nevertheless.
The Court found that Mr Koller was within his rights to demand that the Austrians consider his admission. He applied both to take the aptitude test for EU lawyers, since he is a Spanish lawyer, and at the same time to be exempted from it, presumably on the strength of his Austrian law degree. The application for exemption did not come up at European level because the Austrians refused in principle to allow him to take the aptitude test. I would like to be a fly on the wall when the relevant board discusses his exemption application.
Over 10 years ago – I am sorry that we do not have more up-to-date information – the CCBE undertook research on how to become a lawyer in the various member states. (It was confirmed by research undertaken by the commission a few years later, too.) In those pre-Bologna days, the UK was alone in having a three-year law degree; every other member state had longer, with Luxembourg registering a period of over five years. As for practical training, Austria and Sweden both came in top with the longest requirements – five years each – with Spain having none (although, as explained above, that is being phased out). If you add the academic and practical together, it is obvious that you come up with very different lengths of time in which to qualify. The largest gap is three years: it takes six years in the UK to qualify as a solicitor, and nine years in Austria to qualify as a rechtsanwalt. It is this difference which Mr Koller has just exploited, by showing that a budding lawyer cannot be prevented from circumventing national requirements by qualifying more quickly elsewhere and then applying to join the bar of his or her original member state.
So, forum shopping is alive and well, and approved of by the court for qualifying as a lawyer.
Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies
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