On May, 2019, the European Court of Justice (ECJ) clarified that EU national legislations cannot prevent lawyers registered as lawyers with the relevant authority of their home Member State to register in the host Member State in order to practice there under their home-country professional title but the practice of law must be in accordance with the rules of professional conduct of the hot state.
In Case C-431/17, Monachos Eirinaios / Dikigorikos Syllogos Athinon, Monachos Eirinaios, the applicant in the main proceedings – a monk at the Holy Monastery of Petra, in Karditsa (Greece) – requested the Dikigorikos Syllogos Athinon, the Athens Bar Association to enter him on the special register of the Athens Bar as a lawyer having acquired that professional status in another Member State, namely in Cyprus.
The DSA rejected the application based on the incompatibility between the profession of lawyer and the status of monk established by the Greek law. The status of monk would not allow for independence from the ecclesiastical authorities and it would conflict with the prohibition to provide services without remuneration.
The monk challenged that decision before the Symvoulio tis Epikrateias (Council of State, Greece) pleading that the national legislation is inconsistent with Directive 98/5. The directive fully harmonizes the rules relating to the conditions for registration with the competent authority of the host Member State of lawyers who have obtained their professional qualification in another Member State.
The Greek Council of State stayed the proceeding and referred to the ECJ a preliminary question concerning the interpretation of Article 3(2), Directive 98/5/EC. It asked to clarify whether the requirements arising from the national rules of professional conduct to which lawyers are subject in the host Member State would prevent a lawyer to practice under the professional title obtained in their home Member State.
The ECJ held that that national legislation may not limit EU lawyers to register to practice in other EU member states under their home-country professional title. It highlights how Directive 98/5 has the purpose to facilitate practice of law of a lawyer who is on a permanent basis in a Member State other than the one in which the professional qualification was obtained.
It must be held that lawyers who have acquired the right to use that professional title in a Member State, such as the applicant in the main proceedings, and who present to the competent authority of the host Member State a certificate attesting to their registration with the competent authority of the first Member State must be regarded as satisfying all the conditions required for their registration with the competent authority of the host Member State, under their professional title obtained in the home Member State.
National legislation may not
supplement the preconditions for registration with the competent authority of the host Member State … by adding further conditions that relate to compliance with requirements of professional conduct. If a lawyer wishing to practise in the host Member State under his home-country professional title were refused registration with the competent authorities of that Member State solely on the ground that he has the status of monk, that would effectively add a registration condition to those set out in Article 3(2) of Directive 98/5, whereas such addition is not permitted by that provision.
However, the ECJ distinguishes between registration with the competent authority of the host Member State — which is regulated by the Directive and for which the member states cannot add requirements — and the practice of law itself in respect to which the lawyer is subject to the rules of professional conduct applicable in that Member State.
Under the second perspective the member states are certainly allowed to “prescribe …guarantees … [that] are necessary in order to attain the objectives pursued. In particular, the absence of conflicts of interest is essential for practice of the profession of lawyer and requires, inter alia, that lawyers should be in a situation of independence vis-à-vis the authorities”
In the case at hand, found the ECJ “practicing the profession of lawyer by a monk would not be consistent with the guarantees of independency which – under the law of the host Member State – are required to practice law.”
In conclusion, Monachos Eirinaios was entitled to be enrolled a lawyer in Greece but not to practice law.
The full text of Case C-431/17, Monachos Eirinaios / Dikigorikos Syllogos Athinon is available at https://eur-lex.europa.eu….
For more information on how Directive 98/5 may impact your practice of law, contact Francesca Giannoni-Crystal and Federica Romanelli
Originally published on CGCFirm on June 2019