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      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. The “Establishment Directive” (98/5/EC) issued by the CCBE Bars and Law Societies in the European Union establishes the rules that govern transborder law practice by EU nationals within the Union. Sources for this section: See generally George C. Nnona, Multidisciplinary Practice In International Context: Realigning The Perspective on the European Union's Regulatory Regime, 37 Cornell Int'l L.J. 115, (2004); The “Establishment Directive” (98/5/EC)
  2. Scope of the Application of the Directive: There are two conditions which must be satisfied before a lawyer is entitled to the protections of the Directive: (a) the lawyer must have acquired a professional title from one of the Member States of the European Union; and (b) the lawyer must be a citizen from one of the Member States of the European Union.
  3. Right to Practice Under the Home-Country Professional Title.
    1. Any lawyer shall be entitled to pursue on a permanent basis, in any other Member State under his home-country professional title, the following activities:
      1. Give advice on the law of his/her home Member State;
      2. Give advice on Community law;
      3. Give advice on international law;
      4. Give advice on the law of the host Member State.
    2. Member States which authorize in their territory a prescribed category of lawyers to prepare deeds for obtaining title to administer estates of deceased persons and for creating or transferring interests in land, which, in other Member States, are reserved for professions other than that of a lawyer, may exclude from such activities, lawyers practicing under a home-country professional title conferred in one of the latter Member States.
    3. For the pursuit of activities relating to the representation or defense of a client in legal proceedings, and insofar as the law of the host Member State reserves such activities to lawyers practicing under the professional title of that State, the latter may require lawyers working under their home-country professional titles to work in conjunction with a lawyer who practices before the judicial authority in question and who would, where necessary, be answerable to that authority.
    4. A lawyer practicing in a host Member State under his/her home-country professional title shall do so under that title, which must be expressed in the official language or one of the official languages of the home Member State, in an intelligible manner, and in such a way as to avoid confusion with the professional title of the host Member State.
  4. Registration With the Competent Authority
    1. A lawyer who wishes to practice in a Member State other than that in which he/she obtained his/her professional qualification shall register with the competent authority in that State.
    2. The competent authority in the host Member State shall register the lawyer upon presentation of a certificate attesting to his/her registration with the competent authority in the home Member State.
  5. Rules For Professional Conduct Applicable
    1. Irrespective of the rules of professional conduct to which he/she is subject in the home Member State, a lawyer practicing under his/her home-country professional title shall be subject to the same rules of professional conduct as lawyers practicing under the relevant professional title of the host Member State in respect of all the activities he/she pursues in its territory.
    2. The host Member State may require a lawyer practicing under his/her home-country professional title either to take out professional indemnity insurance, or to become a member of a professional guarantee fund in accordance with the rules which that State lays down for professional activities pursued in its territory. Nevertheless, a lawyer practicing under his home-country professional title shall be exempted from that requirement if he/she can prove that he/she is covered by insurance taken out or a guarantee provided in accordance with the rules of the home Member State, insofar as such insurance or guarantee is equivalent in terms of the conditions and extent of cover.
  6. Salaried Practice: A lawyer registered in a host Member State under his home-country professional title may practice as a salaried lawyer in the employ of another lawyer, in an association or firm of lawyers, or in a public or private enterprise to the extent that the host Member State so permits for lawyers registered under the professional title used in the State.
  7. Joint Practice
    1. One or more lawyers who belong to the same grouping in their home Member State and who practice under their home-country professional title in a host Member State may pursue their professional activities in a branch or agency of their grouping in the host Member State. However, where the fundamental rules governing that grouping in the home Member State are incompatible with the fundamental rules laid down by law, regulation or administrative action in the host Member State, the latter rules shall prevail insofar as compliance therewith is justified by the public interest in protecting clients and third parties.
    2. Each Member State shall afford two or more lawyers from the same grouping or the same home Member State who practice in its territory under their home-country professional titles access to a form of joint practice. If the host Member State gives its lawyers a choice between several forms of joint practice, those same forms shall also be made available to the aforementioned lawyers.
    3. The host Member State shall take the measures necessary to permit joint practice also between: (a) several lawyers from different Member States practicing under their home-country professional titles; and (b) one or more lawyers practicing under their home-country professional titles, and one or more lawyers from the host Member State.
    4. A lawyer who wishes to practice under his/her home-country professional title shall inform the competent authority in the host Member State of the fact that he/she is a member of a grouping in his/her home Member State, and furnish any relevant information on that grouping.
    5. Notwithstanding the aforementioned (i) - (iv), a host Member State, insofar as it prohibits lawyers practicing under its own relevant professional title from practicing the profession of lawyer within a grouping in which some person are not members of the profession, may refuse to allow a lawyer registered under his/her home-country professional title to practice in its territory in his/her capacity as a member of that grouping.
  8. Name of the Grouping: Whatever the manner in which lawyers practice under their home-country professional titles in the host Member State, they may employ the name of any grouping to which they belong in their home Member State. The host Member State may require that, in addition to that name, mention be made of the legal form of the grouping in the home Member State and/or of the names of any members of the grouping practicing in the host Member State.

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