CLEAR News - Winter 2001

  International News

European Legal Profession Details Barriers to Cross-Border Trade

The Council of the Bars and Law Societies of the European Union (CCBE), the representative group for all national bars and law societies within the European Union (EU) has indicated that, despite GATS 1994 ( barriers to cross-border legal services are still in place. The CCBE suggests that the barriers relate to a variety of aspects of the profession including qualification requirements, title, permitted scope of practice, association with local lawyers, insurance, professional conduct rules, control by local bar etc.

The CCBE has also completed a position paper setting out a common approach by EU Bars and Law Societies on applications from foreign legal practitioners (FLPs) to establish and practice within the EU. The paper sets out seven conditions the FLP must fulfill:

  1. The FLP is recognized by the host country provided he is a member of a comparable independent regulated bar with a code of conduct similar to that of the CCBE and its member organizations, and has sufficient and comparable education or experience obtained, requirements met or licenses or certifications granted in his home country;
  2. The FLP registers as such with the bar and/or competent authorities of the host country;
  3. The professional conduct of the FLP in the host country is regulated under the ethical rules of the bar and/or competent authorities of the host country;
  4. The FLP may practice in the home country under his home title;
  5. The FLP may give legal advice under his home country law;
  6. The FLP is not permitted to provide representation in court;
  7. The FLP may associate with host country lawyers, to the extent permitted to them, for the joint exercise of the profession.

THE CCBE believes this further liberalization should encourage similar moves from other World Trade Organization (WTO) Member States. It states that the "position of most if not all EU Member States is more liberal than the � position of many if not most other WTO Member States. The position described here will render the position of the EU Member States as regards foreign lawyers even more liberal."

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EU Brings Legal Proceedings Against Member States for Failure to Recognize Foreign Qualifications
The European Commission (EC) has declared its intention to take legal action in the European Court of Justice under Article 226 of the Treaty against Greece, which in practice is still not applying Directive 92/51/EEC on recognition of professional qualifications. The Commission will also issue formal warnings to Austria, France, Spain, and Italy for failure to correctly apply Directives on recognition of professional qualifications. The warnings will take the form of "reasoned opinions", the second stage of the infringement procedure set out in Article 226 of the Treaty. If the Member States concerned do not then comply within two months, the Commission may decide to take the case to the Court of Justice.

Greece – misapplication of Directive 92/51
The Commission has decided to bring proceedings before the Court of Justice against Greece, which is failing to apply Directive 92/51/EEC on the recognition of professional education and training. The Directive should have been incorporated into national law and have come into force by 18 June 1994 but the Commission suggests that in practice the Greek authorities are still not applying the rules of the Directive. Notably, a significant number of migrants (opticians in particular) are still waiting for a decision recognizing their qualifications, thus barring them from the right to freedom of establishment.

Austria - paramedical professions
According to the EC Austrian regulations for the professions of physiotherapist, occupational therapist and speech therapist require, in addition to the professional qualification, three years of remunerated professional experience before practicing the profession independently. This is also required of migrants, and thus infringes Directive 89/48/EEC on recognition of qualifications. (The Directive prohibits Member States from imposing on migrants conditions of professional experience other than those provided for in the Directive itself.)

While the Austrian authorities have indicated that changes in the law are on the way, no drafts have yet been submitted to the Commission. In addition, three other paramedical professions are restricted to paid employment only: laboratory technician, radiographer and orthoptist. Under Article 43 of the Treaty, however, freedom of establishment includes the right to take up and pursue activities as a self-employed person. According to the case law of the Court of Justice, restrictions on freedom of establishment must be justified by overriding requirements in the general interest and must meet certain conditions. The EC has judged that reasons cited by the Austrian authorities fall short of this.

While the Commission acknowledges that Austria has complied with its obligations and established a new profession of dentistry, distinct from medicine, there are specific provisions which preserve the rights of doctors who practiced dentistry before the establishment of the new profession of "Zahnarzt". Austria has, however, extended the benefit of these provisions to "Dentisten", who are not doctors and therefore cannot benefit from the exceptional Community measures to practice as dentists in Austria or to set up as dentists in other Member States. The Commission also considers that the Austrian legislation does not draw a clear enough line between medicine and the new profession of dentistry.

France - access to the profession of special education teacher
France has not transposed Directives 89/48/EEC and 92/51/EEC in regard to access to the profession of special education teacher and its exercise in the public sector. In addition, the Commission indicates that France has failed to meet its obligations under Article 39 of the Treaty by not taking account of candidates’ professional experience in the procedure for the recognition of special teaching qualifications.

Italy - sports professions
Italy has not transposed Directive 92/51/EEC on a second general system for the recognition of professional education and training (supplementing Directive 89/48/EEC), as regards access to professional sport, and the professions of coach, technical director, sports director and trainer.

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UK Nursing Regulatory Body to Undergo Transformation in April 2002
As of April 2002 the United Kingdom Central Council for Nursing Midwifery and Health Visiting (UKCC) will become the Nursing and Midwifery Council (NMC). With in excess of 632,000 nurses, midwives and health visitors registered, the UKCC is the largest regulatory body in the world. Like the UKCC the NMC play a similar role, in terms of the maintenance of the register of UK nurses, midwives and health visitors, in addition to dealing with professional discipline cases and advice to members. The NMC will however take on a new role as it will be responsible for the quality assurance of nursing education from April 1, 2002 taking over this function from the English National Board for Nursing, Midwifery and Health Vesting (ENB). The ENB will cease to exist of March 31, 2002.

Despite the removal of their title from the title of the new regulatory body, health visiting will remain a profession in the UK. A report from the Department of Health, 'Establishing the new Nursing and Midwifery Council' makes clear that, "Health Visitors will have parity of representation with nurses and midwives on the new Council, and legislation will provide for the separate registration of public and community health specialists, rather than specifying "health visitors". This will both safeguard their present status and enable the Council to reflect the developing role of specialist practitioners within this and other fields. The Council will not be required to set up a health visiting committee, although it will be free to do so. It will in any event be required to have regard to the interests of the profession and to consult its representatives on matters affecting them."

The health visiting profession will have more representation within the NMC Council than was the case under the structure of the UKCC Council. The structure of the NMC Council will include four nurses, four midwives, four health visitors and 11 lay members.

For additional information about the NMC and the changes that will come into effect in April 2002 please click here.