BREXIT and lawyers

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BREXIT and lawyers

BREXIT and lawyers

It is very difficult to already speak about the consequences of the Brexit because nobody knows how the future will be made.

Claude Moraes MEP said “The advantages of [European judicial cooperation] are so neat and helpful that it’s quite extraordinary that no one thought to mention it at any given level during the referendum campaign”.

In fact, the UK is conducting the Brexit referendum campaign now, more than a year after the actual vote. Leave won the referendum but didn’t conclusively win the argument, which explains why the debate never ends and UK has put few specific positions on the table.

The Newspaper Politico used a metaphor to make understandable the current situation:

Imagine that you, Britain, are sick of your shared apartment and your bossy European flatmates. You want an apartment of your own. Your current building and neighborhood is convenient, so you prefer to simply switch to a better apartment in the building. When you try to negotiate the new lease before discussing the penalty fee for leaving your current lease early, the EU landlord is annoyed. All hell breaks loose when you eat all the food, try to take the fridge with you, and demand to keep a set of keys to your current flat after 2019.

We also can understand why the EU is peeved.

Once known the Brexit decision, the Law Society right now started to plead near its government for the maintenance of free trade of lawyers, in the interest of the customers.

On their side, the French Bar and the CCBE decided to speak with one voice in favor of the maintenance of the applicability of the directives lawyers between the Union and the United Kingdom, at least initially. The Paris bar, which counts to 10% foreign lawyers, intends to be particularly proactive on this ground. “The bar and Law Society work together in order to preserve the rights of all lawyers and to preserve the reciprocity”, according to Béatrice Brugués-Reix, in charge of the working group of the bar of Paris on Brexit.

Even though the figures are not reliable, 212 British lawyers currently exert under their title of origin in Paris, and 170 French lawyers practice under the same conditions in London. The population concerned is not significant compared to the full number of lawyers registered at the bar of Paris (about 30.000), but the economic issues are real. Paris is an open place and the practice of lawyers must therefore be facilitated whatever their country of origin. The Paris Bar intends to draw the attention of the public authorities to this subject. That is the same situation in the UK. The president of the Law Society of England and Wales does not hide his fears regarding the impact of Brexit on the attractivity of the London place.

For now, the hour is with the inventory of fixtures. Before launching any negotiation and action of lobbying near the public authorities, the institutions representative of lawyers must determine the number of the professionals concerned with Brexit.

According to Law Society of England and Wales, 27,000 solicitors of England and Wales would be currently distributed in 24 Member States of the European Union – Brussels and Paris being the two capitals more the appraisals.

For its part, the CCBE works since October to establish a precise chart amongst the impacted European lawyers concerned, before defining a position and defending it near the European authorities.

Brexit threatens to deal a hefty blow to the U.K.’s lucrative legal profession — and create a huge uncertainty for courts across the rest of Europe.

It is very difficult to speak about the Brexit when we have no reliable information on the UK position. In this context, the only working hypothesis is the hard Brexit. That means:

  • scheduled disappearance of the mutual recognition principle which is the basis of the relationships between the European States.
  •  Scheduled disappearance of the freedom of movement and establishment which is the basis of the relationships between the European lawyers.
  • Scheduled disappearance of the coherence between two legal systems in the absence of a common jurisdiction

In this context, the UK will be a foreign country for all the EU Members States. According to the European treaties. The EU is an internal market and offers its citizens an area of freedom, security and justice without internal frontiers. Thus, it won’t be possible for the UK to negotiate and conclude separate agreements with any Member State.

The problem is as follows from a lawyer’s point of view. Jonathan Goldsmith former CCBE General Secretary said “l After the great Repeal Bill, the most obvious omission from the bill is mutuality. Much of the EU is based on mutual recognition. Services and goods, court decisions and deported criminals – and a whole host of other things – cross borders easily within the EU because each side recognizes the acts of the other. It affects many of the topics dearest to a lawyer’s heart: our own qualifications to practice elsewhere; the substance of EU civil and criminal law instruments which have eased cross-border justice; and other topics on which lawyers advise their clients”.

The European law becomes a national law for the UK. That should not be a predicament for the internal market. But the situation is totally different for the international exchanges. The UK will be a third country for the EU Members States.

  • What is the fate of a contract concluded before the Brexit with a British and an European. The situation will be different according to whether the court is a UK Court or an European one?
  • What is the fate of the judicial decision for its endorsement?
  • What is the fate of the lawyers?

Today, the profession of lawyer within EU is based on three pillars:

The Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services.

The Directive 98/5/EC of 16 February 1998 concerning the practice as a lawyer on a permanent basis in an EU country other than that of qualification.

The Directive 2005/36/EC of 7 September 2005 on the recognition of professional qualifications.

About the profession of lawyer

Theoretically, the great repeal bill has included these texts in the British law. That means the corresponding rules should be maintained in the British law.

However, two questions arise:

It is likely that the UK Government will use the Henri VIII power in order to abrogate these provisions because the UK government is pushing for the abandon of the freedom of movement. In addition, the use of the Henri VII power looks like a leaf striping creates en uncertainty which is incompatible with the need of legal security and foreseeability.

If not, the EU won’t accept a special derogation only for the lawyers.

More importantly, the maintain of these provision is not likely if the UK refuses the jurisdiction of the ECJ. I recall the Wouters case[1]. The matter which has been referred to the Court of Justice of the European Communities concerned the application of the competition rues to the profession of lawyers. The question was: Is it possible for a bar to prohibit the partnership between a lawyer and other professionals?

The Court said:

  • A regulation concerning partnerships between members of the Bar and other professionals is to be treated as a decision adopted by an association of undertakings within the meaning of EC Treaty.
  • It is not contrary to the EC Treaty for a national regulation to prohibit any multi-disciplinary partnerships between members of the Bar and accountants, since that regulation could reasonably be considered to be necessary for the proper practice of the legal profession, as organised in the country concerned.

 

That means the regulation of the profession of lawyer shall be governed by the European law.

 In fact, the statute of an European lawyer in Brittany and the statute of a Britain lawyer in Europe is inevitably impacted if the UK maintain its refusal of the freedom of movement and the jurisdiction of ECJ.

What are the consequences?

For the British lawyers not established in Europe before the date of the withdrawal

  1. A British lawyer will not be able to register at any European Bar under his home country title and vice versa.
  2. As a foreign lawyer, a British lawyer will be a foreign legal consultant if it is permitted by the local law. According to the European resolution submitted to the World Trade Organization in the framework of the Gats, the foreign legal consultant is authorized to practice his home country law and the international public law. That won’t be possible in France because the statue of foreign legal consultant has been abandoned in 1991.
  3. A British lawyer who want to be established in France will practice in France only as Avocat and must pass a specific exam for the foreign lawyers[2].
  4. British lawyers will not be able to continue to rely on the rules regulating the free movement of services inside the internal market to practice their professional activity and move inside the EU27. In this case, the requirements to exercise their profession within the EU27 would be subject to national law and trade agreements negotiated by the EU.
  5. The structures of lawyers that are not established in a Member State of the EU at the withdrawal date will not be entitled to benefit from the rules on the freedom of establishment regulating the internal market.
  6. After the withdrawal, the UK will become a third country to the European Union and a British lawyer won’t be able to rely on the Directive anymore. The recognition of the qualifications of a British lawyer will then be submitted to national laws.

Regarding the acquired rights:

That is a political matter.  At a legal level, it is difficult to provide a response. There are several situations.

 The competition rules and the ethical rules of the profession are governed by the European law on one side and the British law on the other. We can’t conceive that a British lawyer who remains registered at an European Bar belongs to an entity which would not comply with the European standards. If in the future, the profession of lawyer is deregulated it won’t be possible to take into account the acquired rights.

I would like to draw your attention to the remarks of Lord Justice Thomas in his address to the Grays ‘Inn. “The repatriation of the acquis does present two principal issues that are highly relevant to the judicial branch of the State. The first is how jurisprudence of the Court of Justice of the European Union is to be treated following Brexit and how the acquis in so far as unamended by Parliament is to be interpreted by UK courts. This is a matter of great technical complexity”. Therefore, technical assistance by the judiciary to the executive or legislative branches of the State as to their discharge of their functions may go part of the way in avoiding “political’ issues being litigated and, accordingly, is protective of judicial independence.

In conclusion, what are the wishes of the French lawyers?

They want the UK to remain a Member State of the European Union for many varied and valid reasons. We have a common history. We have shared the price of the blood spilt in the two world wars. The UK shows itself the way towards the United States of Europe in the address of Churchill at the University of Zurich on 19 September 1946.

The British and all the European lawyers have always and unanimously wanted to open the borders within Europe by proposing the first directive of free movement of services 40 years ago.

The British lawyers have played a very significant contribution to the building of the EU.

I think of David Edward who has served as president of the CCBE and who has served as judge at the ECJ. I think of the current British judges at the ECJ and I lastly think of my colleagues who have contributed to the European law by pleading before the ECJ.

The state of mind of the French lawyers has not changed.

 

Bâtonnier Bernard VATIER, Avocat associé

 

 

[1] ECJ., 19 février 2002, Wouters, C- 309/99.

[2] Art 100 Decree 27 November 1991