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Summary Tutorial 5 - Free movement of lawyers
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Tutorial European Union Law: Substantive 2016
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Tutorial 5 - Free movement of lawyersIssue 1
Conceptionally speaking, this case deals with a particular point in time (see the scheme).
Say why the directive is applicable.
- (1, 2)If she becomes advocaat in NL she needs to have certain subjects in Dutch law
and then moves to ireland. 1. moves using title advocaat (directive 89) register art. 3
of this directive. then article 10 of the directive. for three years practise and then
become sollicitor 2. Becoming advocaat and if she wants to use sollicitor, then you
use directive 2005. If you do this, then you use articles 12 to 14. She could have an
adaptation test or an aptitude test. Up to the MS to decide which one to do, as it
requires knowledge of national law.
- (4) She can also provide for services. Directive 2005 establishes both, freedom of
establishement (art. 13) or you can use freedom of services (art. 5), but if the person
is a lawyer, then you use directive 77/249. The biggest difference between
establishment and services is the time, if you want to establish yourself it is indefinite
time and services are usually temporarily. Main headquarters in another MS, then
services. If someone moves, then usually it is establishment (art. 49-54 TFEU)
services (art. 56-62 TFEU). Focus on whether it is performed occasionally.
- (3) Moving in the process of her traineeship, so after having finished her studies and
moving during her traineeship. (Article 45 because 49 is not available to her) Here
you mainly use Morgenbesser, extending Vlassopoulou’s ruling. MS must do a
comparison between what she knows and what she needs to know. Do not use
article 55a in this case. If she finishes her studies but did not start the traineeship at
all, then MS must recognize other diplomas (bologna system), but sometimes other
requirements are imposed, about which the Pezla: threshold for a certain profession,
as long as there is no discrimination. Brigid needs to fulfill the Irish requirements,
which is a conversion course to transform the LLB into something recognized by
Ireland. Then, as an Irish solicitor she can establish herself in the Netherlands or
provide services in the Netherlands. They cannot buy you based on the fact that you
have a diploma from another MS (Thiffry). You cannot use Gebhard here because
they are bar limitations, so you cannot say that it makes it less attractive to move to
another state.
Issue 2
Torresi case could be used here, Directive 98/5. They can circumvent but it is not an abuse
as it is a possibility gviven in secondary law (article 3 directive 98/5) and therefore it cannot
be abuse. This article is about registration under which there is a right of establishment.
Registration is the only condition under which he may practise his own title in the other MS.
Practise under home country title. If you want to be an advocaat in Ireland then you use
directive 98/5.
Koller is about directive 2005 becoming sollicitor, so the title of the host MS. If you want to
be a sollicitor in Ireland you use 2005.
Issue 3
She is a TCN but a family member, therefore equal treatment of EU national through
directive 2004. Then you’d go to article 3 but it is about the home member state. She must
do an aptitude test and after three years of training back in her home country. So if the
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