The European Court of Justice (the “ECJ”) was recently faced with a preliminary reference from the Austrian Supreme Court relating to the freedom of movement of workers, emanating from a domestic case between a student lawyer (the “Applicant”) and the Vienna Bar Association (“RAK”).
The freedom of movement of workers allows all Member State (“MS”) citizens to seek employment in any MS without facing discrimination relating to the nationality of the employee and treating all foreign MS workers equal to local MS workers in the host MS; this includes receiving equal social benefits, pay, and working conditions.
In this regard, the workers are able to reside in the host MS by virtue of this freedom and may extend this right to their families. Pursuant to this article reference is made to the Directive facilitating the practice of the profession of lawyers on a permanent basis in a MS other than that in which the qualification was obtained (the “Directive”). The Directive provides that the internal market shall be one without frontiers and therefore, provides the possibility of practising the profession of a lawyer in a MS other than the one in which a lawyer would have obtained their professional qualifications, whether self-employed or otherwise.
The Directive goes further by providing that a lawyer who has been effectively and regularly pursuing activity under his home MS title in a host MS, shall be able to gain admission to the profession of a lawyer in that host MS.
The Austrian law under scrutiny in this case provided that in order to be admitted to practice as a lawyer in Austria as a working professional in the Austrian Courts, one had to work at a court or a public prosecution office in Austria for a minimum period of 7 months and with a lawyer in Austria for a minimum period of 3 years. It goes further on by providing that equivalent practical training abroad for a period of time shall count towards the practical training.
In furtherance to the above Austrian law, the Austrian Lawyers Code provides that a lawyer shall be able to be substituted before all courts and authorities by any other trainee lawyer working for him or her. This shall be done due to the issuance of a certificate to the trainee lawyer indicated that he is admitted as a trainee lawyer and shall be able to represent the lawyer, with the lawyer still assuming full liability. In order to issue this certificate, the RAK requires a list of documents together with a notice that will trigger the calculation of the period of practical training.
The Applicant in this case sent the notice to the RAK along with the necessary documentation for the issuance of the above-mentioned certificate. During this time, the domicile and habitual residence of the Applicant was in Frankfurt, whilst having a secondary residence in Vienna, Austria.
Whilst in Frankfurt, the Applicant was under the sole supervision of a lawyer (the “Lawyer”) who was admitted to the Austrian Bar and the Applicant’s work was solely focused on Austrian law because the Lawyer mainly dealt with Austrian clients and foreign clients within the parameters of Austrian law whilst not physically being in Austria. Whilst being under this supervision, the Applicant had contact with Austrian bodies and courts several times a week and sometimes even representing her supervisor’s clients.
The notice for admission in the list of trainee lawyers was sent to the RAK by the Applicant in January 2022; she later received a request to submit documentation in March 2022, and then received a rejection to admission in June 2022 on the grounds that her training was not carried out with a lawyer established in Austria. The RAK declared the Lawyer, although having an office in Vienna, absent from November 2016 on the basis that he was spending a period of time abroad.
The decision of the RAK rejecting the Applicant was appealed and rejected and subsequently appealed before the Austrian Supreme Court. The Austrian Supreme Court (the “Referring Court”) noted that the place of work of the Applicant was outside of Austria and the competent Austrian bar association is not able to visit the office of the trainee lawyer to fulfil its duty of monitoring the trainee lawyer whilst also ensuring that the Lawyer is fulfilling his obligation of providing full training to the Applicant.
In its submission it continued to provide that even considering modern means of communication, it is not possible to establish a satisfactory level of communication to ascertain that the training provided to the Applicant is according to the expected standard.
The Referring Court also noted that the Lawyer is a lawyer admitted to the Austrian Bar and works in the field of Austrian Law.
The ECJ interpreted the question posed as one which asks whether Article 45 of the Treaty on the Functioning of the European Union (the “TFEU”) should be understood to mean that a MS cannot require a part of the practical legal training,
which is an essential component for becoming a lawyer, and one that involves the trainee representing clients in the country's courts, to be completed only with a lawyer based in that country. In other words, it questioned if national legislation must allow that part of the training to be done with a lawyer from another EU country, even if that lawyer is admitted in the country where the training takes place and the training involves that country’s law.
The ECJ whilst referencing case law, explained the notion that a MS is required to exercise its powers in a manner that respects the fundamental freedoms guaranteed to the citizens of the European Union and national provisions shall in no manner constitute an obstacle to such.
In its deliberations the ECJ acknowledged that a period of time abroad can count towards the training required for admission, however, such period is limited. Therefore, this would make that national provision a measure enabling the potential to practice the profession in Austria less attractive or even less accessible to EU citizens.
The exceptions to this fundamental freedom, public interest and the principle of proportionality, were both argued in favour of the national provision, however, the ECJ determined that in order for any of these exceptions to apply, it has to be proved that if the national provisions are not followed that it would not be possible to receive adequate training nor gain sufficient experience in the practice of Austrian law. However, no sufficient evidence to this effect was brought.
The ECJ further considered that the RAK, has the power to impose disciplinary sanctions on both the Applicant and the Lawyer, if either party misleads its authority. It further considered and disregarded the notion that access to the Applicant is necessary for the purposes of meeting the objectives of the legislation.
The ECJ therefore, determined that according to article 45 of the TFEU, a Member State cannot enact a law that makes it mandatory for a trainee lawyer to complete a particular part of their practical training with a lawyer who is established in that country. This requirement cannot exclude the possibility of the training being completed with a lawyer from another Member State, even if that lawyer is authorised to practice in the first country and the training involves that country's law. Thus, law graduates should not be forced to complete this training within one MS if they can demonstrate that training abroad provides equivalent experience and skills.
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Author: Dr Neil Gauci
Photo Source: Court of Justice of the European Union