Break for the border

With the European Commission breaking down barriers to enable lawyers to work unencumbered by red tape in member states, Michael Gerrard looks at the difficulties of operating on the continent

Alawyer's right to work freely throughout the European Union came into focus again after the European Commission's recent decision to upbraid errant members for failing to implement its establishment directive.Last month, Ireland and France were threatened with referral to the European Court of Justice (ECJ), after failing to satisfy the commission of their willingness to implement directive 98/95.The directive, which came into force in March 2000, entitles lawyers to practise permanently and without restriction under their home title in another member state, on the same basis as that country's own lawyers.It also makes it easier for a lawyer to requalify and take on the professional title of the host state, without having to sit often onerous law exams.Three years of practising either the host state's law or European law are required for acceptance to be granted.

The second avenue is opened up by the fact that all European legislation is enacted in home law and considered to be one and the same thing.The benefits to be gained from lifting restrictions appear obvious to some of those who fought for the change in the commission's corridors.June O'Keefe, head of the Law Society's Brussels office, says: 'People who gain dual qualifica-tion can expand their business base.

The directive sets down in writing in clear terms what rights a solicitor has when working in a fellow EU jurisdiction.'Ms O'Keefe adds that the need for such a change was emphasised by incidents in the recent past when British lawyers working in both Portugal's Algarve and those engaged in shipping business in the Greek port of Piraeus came under attack from local bar associations.Solicitors serving the large British expatriate community on Portugal's coast were told they had to join the local Bar; this would mean qualifying locally.Across the Mediterranean, City law firms with offices in Greece's main port were deemed to be operating illegally by the Piraeus Bar, which sought criminal prosecutions in October 1999.The case was finally thrown out earlier this year with the establishment directive cited as one of the overriding reasons.Greece, alongside Portugal and the other 11 member states, have now all been deemed by the commission to have complied with the directive, leaving just France and Ireland in the dock.Last month Spain, which was facing the same sanctions as France and Ireland, was deemed to be in the clear after meeting the commission's criteria and giving concrete assurances that implementation measures were under way.

This is another country, like Italy, with long-standing hostility to foreign lawyers.

An English solicitor practising on the Costa del Sol once found himself briefly arrested and jailed over allegations that he was practising illegally.An EU spokeswoman says that French submissions on its work to implement the directive are being examined; the necessary legislation will be put before the National Assembly soon.

That said, she added, neither it nor Ireland's status had altered for the time being.Another key benefit of the directive has been the pressure it has put on non-EU countries to put their houses in order ahead of accession to the union.

Poland, the Czech Republic, Slovakia and Romania are among those told by the European Commission that plans to place heavy restrictions on foreign lawyers would breach their accession agreements.One by one, eastern European countries have fallen into line, and the suggestion has been made more than once that the European directive could be a template for foreign lawyer regulation across the globe; in many countries the issue remains a thorny one.Any apparent foot-dragging on the part of France and Ireland may be more to do with getting the necessary domestic primary legislation enacted than strong opposition to the directive.Ken Murphy, director-general of the Law Society of Ireland, says: 'This is a case of tardiness rather than objection.

We at the Law Society are very anxious to see the legislation enacted and expect it to go through by Christmas.'He noted that the legislation is part of a Solicitors (Amendment) Bill, which has been meandering through the two houses of the Irish Parliament for a couple of years.Those with French operations have divergent views as to the relevance of the directive.Chris Perrin, Clifford Chance's deputy chief operating officer, sees its importance in terms of allied issues such as differing approaches to the subject of conflicts, which exist here and in Europe.He notes: 'When working alongside French lawyers, they are allowed to get involved in cases which we can't touch under our conflict rules.'But Mr Perrin says that overall the directive will not make much difference to the way his firm operates in Europe.

He claims: 'Our offices in continental Europe are staffed almost exclusively by local people, so the directive does not really affect us.'This is not a view shared by others with experience across the Channel and in particular France, who insist that the directive is of great importance.According to Denton Wilde Sapte partner Richard Macklin, each English office is the result of extensive discussions with the Paris Bar.

To his mind, the directive is most welcome.He says: 'At the moment one has to talk quite carefully with the local Bars, especially in France, where you have to work out carefully how you are allowed to practice.'Some of the biggest points are whether an English firm can use its own name, and whether it wants to practise English law from a French office.According to Mr Macklin, part of the problem across Europe is a difference in approach from that adopted in England and the US.He adds: 'Anglo-Saxon firms are much more international in their structure and are generally more used to setting up and practising in foreign jurisdictions.'In a lot of European countries they don't have that tradition of the international firm, and sometimes find it hard to accept one landing from London and starting to practise, using its name almost as a brand.'This misapprehension over 'Anglo-Saxon' practices finds its greatest resonance at the south-eastern edge of Europe in Greece, where even though there is official approval of the establishment directive, long-standing suspicions remain.Even though official hounding of solicitors has now stopped following the court decision, life remains far from easy for those who try to practise there.Because of this fraught atmosphere, Greece-based English solicitors are wary of speaking publicly for fear of reigniting the row.

But one who agreed to talk on the basis of anonymity claims that the Greek legal establishment - with strong political ties - has long tried to keep out foreign lawyers.

He points out: 'The Greeks, in their accession documents, stated that they did not want lawyers from other member states.'Despite the recent court cases and the apparent acceptance by the Greeks of the directive, little has changed for English offices, which largely have to operate in association with Greek partners.Ironically, the Piraeus Bar, which led the recent legal challenges, has admitted English firms Holman Fenwick & Willan and Watson Farley & Williams.According to the expatriate solicitor, things will only really change when the Greek legal community recognises that foreign firms are there to work with them and do not intend to steal all the work.The Greek experience proves that even when the directive apparently gains official approval it can take some time before it is accepted on the ground.As part of the directive, EU lawyers working in another member state are required to register with the local bar or law society.

Anecdotal evidence is that this has only happened haphazardly.

Some 160 EU lawyers have registered in England and Wales with the Law Society, though there are an estimated 600 working here.

The problem is that nobody has a definitive number because they have never had to register before.Failure to register does not just mean that EU lawyers are unable to become members of the Society, take part in its elections, or stand for office.

Failure to register leads to a summary conviction in the magistrates' court and a fine, though this has not happened.

Unregistered lawyers also cannot recover fees.The failure to register, the disputes in Portugal, Greece and elsewhere, and the differences of working practices between member states - plus the pace of enactment in several states - should keep the directive in the news for some time yet.Michael Gerrard is a freelance journalist