Rebecca Zahn, Senior Lecturer in Law, University of Strathclyde
Lawyers in the European Union hold a distinctive position. They ensure access to justice, manage its administration, and uphold the rule of law within their Member States. Similar to other professions like medicine or architecture, national bodies strictly regulate entry. However, legal practice is inherently location-specific, unlike other professions. A lawyer’s knowledge base is tied to the jurisdiction where they were trained and qualified. Fluency in the national language and understanding the legal system’s customs and practices are essential for practicing law. This makes the free movement of lawyers complex. While a general system exists under Directive 2005/36/EC for professionals to gain full integration in a receiving Member State after passing an aptitude test, this is less straightforward for lawyers. Data from the European Commission suggests that only 7,506 lawyers have used this path to practice law in a different Member State.
Lawyers are unique in that they have an additional system to make temporary and permanent free movement easier. Directive 77/249/EEC allows lawyers registered in one Member State to provide temporary legal services in another without prior notice. While no official data exists on the use of this right, a 2012 study for the European Commission suggested a large market for temporary cross-border legal services, often conducted remotely via email or phone.
Furthermore, Directive 98/5/EC enables lawyers to register and permanently practice law in a host Member State. This Directive mandates that lawyers wanting to practice in a host Member State register with the relevant authority, presenting their registration certificate. Initially, the host Member State registers the lawyer under their home-country professional title, allowing them to advise on their home law, EU law, international law, or the host Member State’s law. The lawyer is bound by the host Member State’s professional conduct rules while practicing there. After three years, the lawyer can apply to be fully admitted to the host Member State’s legal profession.
While the Directive standardizes access to the profession, it gives Member States leeway in integrating lawyers through their professional conduct rules. This hybrid approach can create challenges, as highlighted in the May 7, 2019, Court of Justice of the European Union judgment in Case C-431/17, Monachos Eirinaios v Dikigorikos Syllogos Athinon.
This case involved Monachos Eirinaios, a Greek monk residing in a Greek monastery, who is also a qualified lawyer and a member of the Cyprus Bar Association. In 2015, he applied to register with the Athens Bar Association as a lawyer qualified in another Member State, relying on Directive 98/5. His application was denied based on national rules prohibiting clergymen or monks from being lawyers in Greece. The Athens Bar Association argued that monks lacked independence, dedication to their duties, and the ability to handle contentious cases. They also cited the requirement for physical establishment in the practice area and the obligation to charge for services. Monachos Eirinaios appealed, and the Council of State referred a question to the Court of Justice, asking whether Directive 98/5 obligated the Athens Bar Association to register him even if he couldn’t practice.
The Court reaffirmed that Article 3 of Directive 98/5 standardizes the rules for lawyers establishing themselves in another Member State. A host Member State must register a fully qualified lawyer with the required home Member State certification, regardless of whether they can practice afterward. Imposing additional registration conditions beyond Article 3 is prohibited. This aligns with the Court’s decision in Case C-58/13 Torresi, establishing mutual recognition of lawyers’ professional titles. The Court acknowledged the paradoxical situation in Monachos Eirinaios, requiring registration knowing he couldn’t practice.
However, the Court differentiated between access to the profession and its practice. National authorities can impose requirements to maintain professional standards during practice. The Court didn’t address the blanket ban on monks becoming lawyers (stating it couldn’t be a registration prerequisite) but asked the national court to determine if it was proportionate without providing specific criteria.
The Monachos Eirinaios decision builds on previous case law on Directive 98/5, aiming to facilitate the free movement of lawyers, a positive development. Given the sensitive nature of access to a highly regulated profession and the evolving relationship between church and state in Greece, the decision balances facilitating access with maintaining Member State discretion. Therefore, it’s unsurprising that the Grand Chamber heard the case. By avoiding discussion of the ban on monks and clergymen becoming lawyers, the Court created a contradictory situation: the Athens Bar Association must register Monachos Eirinaios and can then immediately disbar him. More specific guidance on the proportionality test in such situations would have been helpful, especially since the Advocate General provided a more nuanced discussion.
The Advocate General pointed out that banning individuals with specific characteristics from practicing law should not fall under professional conduct rules. Instead, the Bar Association should observe a lawyer’s conduct in practice before removing registration, following the reasoning in Case C-225/09 Jakubowska, where non-compliance with host State rules could lead to a foreign lawyer’s removal from the register.
The Advocate General is correct. The Bar Association assumes that monks cannot fulfill lawyers’ professional conduct rules simply because they are monks, without considering the individual’s conduct. The definition of “monk” or “clergyman” under the Directive is unclear. If Directive 98/5 aims to facilitate free movement, “rules of professional conduct” under Article 6 must have minimum harmonization. Blanket bans based on characteristics, not conduct, hinder free movement and make the right to registration meaningless.
Additionally, procedural guarantees for disciplinary procedures and the right to legal recourse only apply after practicing law, impossible in this case. Accepting such a blanket ban based on a characteristic sets a dangerous precedent that could undermine the rule of law. What if a Member State requires political affiliation to practice law under professional conduct? The lack of minimum harmonization on “rules of conduct” could hinder lawyers’ ability to provide access to and administer justice. By avoiding this topic, the Court missed an opportunity to clarify Directive 98/5/EC’s scope.
Barnard & Peers: chapter 14
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