the “SeRVICES” DIRECTIVE 77/249/EEC OF MARCH 22ND, 1977 and
the “MUTUAL RECOGNITION OF DIPLOMAS” DIRECTIVE 89/48/EEC OF DECEMBER 21ST, 1988
Countries
/ Establishment Directive / Services Directive /Diplomas Directive
1 /Poland
/ Date of adoption:05/07/2002Date of implementation:10/02/2003
References:
Act of 5 July 2002 on the provision by foreign lawyers of legal assistance in the Republic of Poland / Date of adoption:05/07/2002
Date of implementation:10/02/2003
References:
Act of 5 July 2002 on the provision by foreign lawyers of legal assistance in the Republic of Poland / Date of adoption:05/07/2002
Date of implementation:10/02/2003
References:
Act of 5 July 2002 on the provision by foreign lawyers of legal assistance in the Republic of Poland
2 / Hungary / Date of adoption:13/03/2003
Date of implementation:Date of accession
References: Law No. XI of 2003 on the amendment of Law No. XI of 1998 on attorneys / Date of adoption:13/03/2003
Date of implementation:Date of accession
References: Law No. XI of 2003 on the amendment of Law No. XI of 1998 on attorneys / Date of adoption:24/12/2001
Date of implementation:Date of accession
References:
Law No. C of 2001 on the recognition of foreign certificates and degrees
3 /
Czech Republic
/ Date of adoption:09/05/2002Date of implementation: Date of accession
References:
Act No. 85/1996 Coll., on Advocacy, as amended by Act No. 210/1999 Coll., 120/2001 Coll., 6/2002 Coll. and 228/2002 Coll. / Date of adoption:09/05/2002
Date of implementation: Date of accession
References:
Act No. 85/1996 Coll., on Advocacy, as amended by Act No. 210/1999 Coll., 120/2001 Coll., 6/2002 Coll. and 228/2002 Coll. / Date of adoption:09/05/2002
Date of implementation:Date of accession
References:
Act No. 85/1996 Coll., on Advocacy, as amended by Act No. 210/1999 Coll., 120/2001 Coll., 6/2002 Coll. and 228/2002 Coll.
4 /
Slovenia
/ Date of adoption:Date of implementation:Date of accession
References: / Date of adoption:
Date of implementation:Date of accession
References: / Date of adoption:
Date of implementation:Date of accession
References:
conseil des barreaux de l'union européenne
council of the bars and law societies of the european union
ccbe – 2003
Implementation of the “Establishment” Directive 98/5/EC of February 16th, 1998;the “SeRVICES” DIRECTIVE 77/249/EEC OF MARCH 22ND, 1977 and
the “MUTUAL RECOGNITION OF DIPLOMAS” DIRECTIVE 89/48/EEC OF DECEMBER 21ST, 1988
ANNEX 1:Act of 5 July 2002 on the provision by foreign lawyers of legal assistance in the Republic of Poland.
ANNEX 2:Hungarian Law No. C of 2001 on the recognition of foreign certificates and degrees.
ANNEX 3:Czech Act No. 85/1996 Coll., on Advocacy, as amended by Act No. 210/1999 Coll., 120/2001 Coll., 6/2002 Coll. and 228/2002 Coll.
conseil des barreaux de l'union européenne
council of the bars and law societies of the european union
ccbe – 2003
ANNEX 1:
Act of 5 July 2002 on the provision by foreign lawyers of legal assistance in the Republic of Poland.
ACT
of 5 July 2002
on the provision by foreign lawyers of legal assistance
in the Republic of Poland
Section I
General provisions
Article 1.1. This Act regulates the conditions for the provision of legal assistance in Poland by foreign lawyers.
2. Legal assistance shall mean activities within the scope corresponding to the powers of an advocate or a legal counsellor, and shall include in particular giving legal advice and legal opinions, drafting legal acts and appearing before courts and public agencies.
Article 2. The terms used in this Act shall have the following meaning:
1)"foreign lawyer" – a lawyer from the European Union or a lawyer from outside the European Union,
2)"lawyer from the European Union" – a person who is a national of a European Union Member State, authorised to pursue his/her professional activities under one of the professional titles conferred in a European Union Member State as specified in the Schedule annexed to this Act,
3)"lawyer from outside the European Union" – a person who is not a national of a European Union Member State, authorised to pursue his/her professional activities under one of the professional titles referred to in paragraph 2, as well as a person who, under the professional title conferred in a state which is not a Member of the European Union, is authorised to practise a profession which corresponds, in respect of education, competences and basic principles concerning the organisation and practising the profession, to the profession of advocate or legal counsellor,
4)"cross-border service" - a single or a temporary activity within the scope of legal assistance, performed in the Republic of Poland by a foreign lawyer practising his/her profession on a permanent basis in another state,
5)"practice on a permanent basis" – permanent and systematic provision of legal assistance by a foreign lawyer in the Republic of Poland,
6)"home state" – the state in which a foreign lawyer acquired the right to use one of the professional titles referred to in paragraphs 2 and 3.
Section II
Practice of the profession on a permanent basis
Chapter 1
Common provisions
Article 3. Subject to reciprocity, unless the international agreements ratified by the Republic of Poland or the provisions of the international organisations the Republic of Poland is a member thereto provide otherwise, foreign lawyers shall be entitled to practise their profession on a permanent basis pursuant to the provisions of this Section after having been entered onto one of the lists of foreign lawyers kept by District Bar Councils or by Councils of District Chambers of Legal Counsellors, hereinafter referred to as the "list".
Article 4.1. Lawyers from the European Union who are going to provide legal assistance within the scope corresponding to the profession of advocate and lawyers from outside the European Union whose professional title entitles them to practise a profession corresponding to the profession of advocate shall be entered on the list kept by the District Bar Councils.
2. Lawyers from the European Union who are going to provide legal assistance within the scope corresponding to the profession of legal counsellor and lawyers from outside the European Union whose professional title entitles them to practise a profession corresponding to the profession of legal counsellor shall be entered on the list kept by the Councils of District Chambers of Legal Counsellors.
3. The District Bar Councils and the Councils of District Chambers of Legal Counsellors shall transmit, on an annual basis – not later than 31 March, certified copies of the lists kept by them to the competent presidents of appellate, provincial and administrative courts and to the competent appellate and provincial public prosecutors. The District Bar Councils also transmit certified copies of the list to the Central Bar Council, and the Councils of District Chambers of Legal Counsellors – to the National Council of Legal Counsellors. They shall also notify any changes made on the lists within 14 days after making them.
Article 5.1. The list shall consist of a part, in which lawyers from the European Union are entered, and a part, in which lawyers from outside the European Union are entered.
2. The following data on foreign lawyers shall be disclosed on the list: first name and surname, date and place of birth, place of residence, address, office address, professional title conferred in a home state. Additionally, name and business address of the grouping to which a foreign lawyer belongs in his/her home state as well as name of a competent authority of a home state that issued a certificate attesting his/her registration in that state as a person entitled to practise the profession under one of the professional titles referred to in article 2 subparagraphs 2 or 3 shall be disclosed on the list.
3. The detailed manner in which the list is to be kept shall be specified by the Central Bar Council and the National Council of Legal Counsellors.
Article 6.1. Entry on the list shall be made upon the application of the interested person.
2. A foreign lawyer applying for entry on the list kept by the District Bar Council shall submit an application to the council which is competent with regard to the location of his/her future professional office as indicated in the request. A foreign lawyer applying for entry on the list kept by the Council of District Chamber of Legal Counsellors shall submit an application to the council which is competent with regard to the location of his/her future professional office as indicated in the request, and if the profession is to be practised under employment relationship - to the council competent with regard to the seat of the future employer as indicated in the request.
3. The application shall be accompanied by:
1)a certificate issued by the competent authority of the home state attesting that the person applying for entry has been registered in that state as a person entitled to practise his/her profession under one of the professional titles referred to in article 2, paragraph 2 or 3; the authority to which the request is being submitted may refuse to accept the certificate if more than three months have elapsed from the date of its issuance,
2)a document attesting the citizenship of the person applying for entry.
4. The application for entry shall be made in the Polish language. The remaining documents, if not made in this language, shall be submitted together with a translation into the Polish language certified by a sworn translator.
Article 7.1. Entry on the list as well as removal from the list shall be decided upon by the District Bar Council or the Council of District Chamber of Legal Counsellors. Refusal of the entry on the list may take place only if the interested person does not satisfy the conditions specified in the act.
2. The procedure and the resolutions adopted by the District Bar Council in respect of entry on the list or removal from the list shall be governed accordingly by the provisions of article 12, 46, 47, 69 and section VI of the Act of 26 May 1982 – Law on the Bar (Journal of Laws – Dz.U. No 16, item 124 and No25, item 187, of 1983 No 5, item 33, of 1986 No 42, item 202, of 1990 No 36, item 206, of 1995 No 4, item 17, of 1996 No 77, item 367, of 1997 No 28, item 153, No 75, item 471 and No 141, item 943, of 1998 No 106, item 668, of 1999 No 75, item 853, of 2000 No 39, item 439 and No 94, item 1037, of 2001 No 98, item 1070 and of 2002 No 78, item 717). The procedure and resolutions adopted by the Council of District Chamber of Legal Counsellors in respect of entry on the list or removal from the list shall be governed respectively by the provisions of article 24, paragraph 2, articles 29, 31 and 311 of the Act of 6 July 1982 on legal counsellors (Dz.U. No 19, item 145, of 1989 No33, item 175, of 1996 No 106, item 496, of 1997 No 75, item 471, of 1998 No106, item 668, of 1999 No 75, item 853 and No 83, item 931 and of 2000 No 48, item 545 and No 94, item 1037, of 2001 No 98, item 1070 and of 2002 no 74, item 676).
3. Removal from the list, independently from causes described in the provisions referred to in paragraph 2, takes place also when a foreign lawyer, in his/her home state, has been deprived of the right of practising, permanently or temporarily, the profession referred to in article 2, paragraph 2 or 3 or when he/she has been entered onto the list of advocates or a list of legal counsellors.
4. In order to find of whether the profession,a personapplying for entry on the list is authorised to practise, corresponds to the profession of advocate or legal counsellor, the council referred to in paragraph 1 may request the Minister of Justice for providing the text of a relevant foreign law. The council may also request the Minister of Justice when it is necessary to find of there is a reciprocity, referred to in article 3, from a home state of a personapplying for entry on the list.
5. The District Bar Council and the Council of District Chamber of Legal Counsellors shall notify promptly the competent authority in the foreign lawyer's home state of his/her having been entered on the list, of having been refused of entry on the list or removed from the list.
Article 8. When practising the profession on a permanent basis, a foreign lawyer entered on the list shall use the professional title conferred in the home state as expressed in the official language of that state, indicating the professional body of which he/she is a member in his/her home state or the court before which he is entitled to practise pursuant to the laws of that state as well as information, whether the foreign lawyer practises on a permanent basis the profession within the scope corresponding to the profession of advocate or to the profession of legal counsellor. To this end the list on which the foreign lawyer has been entered should be indicated, providing the name of the body it is kept by.
Article 9.1. A foreign lawyer who in his/her home state belongs to a grouping whose purpose is to pursue joint practice in providing legal assistance shall be entitled to employ, apart from his/her professional title, the name of that grouping.
2. The fact of belonging to a grouping referred to in paragraph 1 shall be notified by the foreign lawyer to the body that keeps the list on which the lawyer has been entered. Such information should indicate the name of the grouping, its business address as well as its legal form and, upon the request of the body that keeps the list, also the first names and surnames of other members of the grouping.
Article 10.1. A foreign lawyer, depending on which list he/she has been entered onto, shall be subject to disciplinary responsibility pursuant to the provisions on disciplinary responsibility of advocates or disciplinary responsibility of legal counsellors.
2. In place of the penalty of suspension in carrying out professional activities of an advocate or the penalty of suspension in carrying out professional activities of a legal counsellor, the penalty of suspension of the right to provide legal assistance in the Republic of Poland for the period from three months to five years shall be applied. In place of the penalty of expulsion from the Bar and the penalty of deprivation of the right to practise the profession of legal counsellor, the penalty of ban on the provision of legal assistance in the Republic of Poland shall be applied.
3. The disciplinary court shall serve promptly on the competent authority of the foreign lawyer's home state, certified copies of:
1)the indictment or the motion of the authorised disciplinary commissioner for the institution of disciplinary proceedings, together with information on the rights resulting from paragraph 4,
2)judgements and decisions rendered in the course of the disciplinary proceedings,
3)measures of appeal.
4. The authority referred to in paragraph 3, at each stage of the disciplinary proceedings, may present its position in the matter to the disciplinary court, and its representative may take part in the trial also when the case is heard at a nonpublic sitting.
5. In cases referred to in article 85, paragraph 1, of the Act – Law on the Bar, and in article 66, paragraph 1, of the Act on legal counsellors, the dean of the District Bar Council who imposed the penalty of admonition on the foreign lawyer, or the dean of the Council of District Chamber of Legal Counsellors who gave him a warning shall serve on the authority referred to in paragraph 3 a certified copy of the notification of the penalty of admonition having been imposed or a warning having been given, as well as a certified copy of the appeal, if filed.
Article 11.1. A foreign lawyer shall be subject to mandatory civil liability insurance against damage done in the provision of legal assistance, pursuant to the principles applicable to advocates or the principles applicable to legal counsellors, depending on which list he/she has been entered onto.
2. The obligation specified in paragraph 1 shall be waived in respect of persons who can prove that they are covered by insurance or a guarantee taken out pursuant the laws of their home state, and that the conditions and scope of such insurance or guarantee are equivalent to the conditions and scope of the insurance referred to in paragraph 1. Where the equivalence is only partial, the foreign lawyer shall be obliged to enter into an agreement providing for additional insurance or additional guarantee.
3. A foreign lawyer is obliged to submit, on an annual basis, a proof of the insurance or the guarantee referred to in paragraph 2 to the authority that keeps the list he/she has been entered onto. The submitted documents, if not made in the Polish language, shall be accompanied by a translation into the Polish language certified by a sworn translator.
Article 12. A foreign lawyer shall be obliged to submit to the authority that keeps the list he/she has been entered onto, on an annual basis, a certificate issued by the competent authority of his/her home state attesting that he/she has been registered in that state as a person entitled to practise the profession under one of the titles referred to in article 2, paragraph 2 or 3.
Chapter 2
Practice of the profession on a permanent basis by lawyers from the European Union
Article 13.1. A lawyer from the European Union entered on the list kept by the District Bar Council is entitled to practise the profession on a permanent basis within the scope corresponding to the profession of advocate, whereas a lawyer entered on the list kept by the Council of District Chamber of Legal Counsellors – within the scope corresponding to the profession of legal counsellor.
2. The choice of the list shall be made by the European Union lawyer concerned.
Article 14. Unless stipulated otherwise by statute, a lawyer from the European Union entered on the list kept by the District Bar Council shall have the same rights and obligations as an advocate, and a lawyer entered on the list kept by the Council of District Chamber of Legal Counsellors shall have the same rights and obligations as a legal counsellor. This concerns also the obligation to observe the rules of professional conduct.
Article 15.1. A lawyer from the European Union entered on the list kept by the District Bar Council may practise the profession on a permanent basis in an individual office, in an advocates' practice unit, within a registered partnership, civil partnership, limited partnership or a professional partnership.
2. A lawyer from the European Union entered on the list kept by the Council of District Chamber of Legal Counsellors may practise the profession on a permanent basis under employment relationship, under a civil law contract, in an individual office, within a registered partnership, civil partnership, limited partnership or a professional partnership.
3. A lawyer from the European Union entered on the list kept by the Council of District Chamber of Legal Counsellors may provide legal assistance to natural persons only if he/she practises the profession in an individual office or in partnerships referred to in paragraph 2 and is not at the same time under employment relationship.
4. The sole object of activity of the partnerships referred to in paragraphs 1 and 2 may be the provision of legal assistance. Partners in a civil partnership and a professional partnership may only be lawyers from the European Union, advocates and legal counsellors, and partners in a registered partnership or general partners in a limited partnership may also be lawyers from outside the European Union.