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S.I. No. 732/2003 - European Communities (Lawyers' Establishment) Regulations 2003

ARRANGEMENT OF REGULATIONS

Preliminary and general

1.

Short title

2.

Interpretation

3.

Amendment of Solicitors (Amendment) Act 2002

4.

Competent authority

5.

Saving

Registration of member state lawyers

6.

Registration

7.

Register of lawyers

Qualifying certificates

8.

Qualifying certificates

9.

Withdrawal of authorisation to practise in home member state.

Professional activities, conduct and discipline

10.

Professional activities

11.

Application to registered lawyers of rules of professional practice, conduct and discipline

12.

Further adaptation of enactments or regulations relating to solicitors

13.

Registered lawyers who is member of grouping in home member state

14.

Compensation Fund

15.

Transitional provision

Admission of member state lawyers to practice under professional title of barrister or solicitor

16.

Amendment of European Communities (General System for Recognition of Higher Education Diplomas Regulations 1991

S.I. No. 732 of 2003

EUROPEAN COMMUNITIES (LAWYERS' ESTABLISHMENT) REGULATIONS 2003

I, Michael McDowell, Minister for Justice, Equality and Law Reform, make the following regulations in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and section 20 of the Solicitors (Amendment) Act 2002 (No. 19 of 2002) and for the purpose of giving effect to Directive No. 98/5/EC of the European Parliament and of the Council of 16 February 19981 to facilitate the practice of the profession of lawyer on a permanent basis in a member state other than that in which the qualification was obtained, to a measure which is in force by virtue of the Agreement between the European Community and its member states, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, done at Luxembourg on 21 June 1999 and the Decision of the EEA Joint Committee No. 85/2002 of 25 June 20022 amending Annex VII (Mutual Recognition of Professional Qualifications) to the Agreement on the European Economic Area signed in Oporto on 2 May 1992, as adjusted by the Protocol to that Agreement done at Brussels on 17 March 1993:

Preliminary and general

Short title and commencement

1.           These Regulations may be cited as the European Communities (Lawyers' Establishment) Regulations 2003.

Interpretation

2.           (1)          In these Regulations, except where the context otherwise requires —

“Act of 1954” means the Solicitors Act 1954 (No. 36 of 1954);

“Act of 1960” means the Solicitors (Amendment) Act 1960 (No. 37 of 1960);

“Act of 1994” means the Solicitors (Amendment) Act 1994 (No. 27 of 1994);

“Bar Council” means the General Council of the Bar of Ireland;

“barrister” means a person who has been called to the Bar of Ireland and who complies with the requirements of the Bar Council as to professional practice;

“Compensation Fund” means the fund maintained by the Law Society pursuant to sections 21 and 22 of the Act of 1960;

“competent authority” has the meaning given to it by Regulation 4;

“Directive” means Directive No. 98/5EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a member state other than that in which the qualification was obtained and includes -

(a)        a measure which is in force by virtue of the entry into force of the Swiss Confederation Agreement, and

(b)        the Decision of the EEA Joint Committee No. 85/2002 of 25 June 2002 amending Annex VII (Mutual Recognition of Professional Qualifications) to the EEA Agreement;

“Disciplinary Tribunal” means the Solicitors Disciplinary Tribunal;

“EEA Agreement” means the Agreement on the European Economic Area signed in Oporto on 2 May 1992, as adjusted by the Protocol to that Agreement done at Brussels on 17 March 1993;

“grouping” means any entity, with or without legal personality, formed under the law of a member state or the State, within which lawyers pursue their professional activities jointly under a joint name;

“home member state”, in relation to a lawyer, means the member state in which the lawyer acquired the right to use his or her home professional title before becoming a registered lawyer;

“home professional title”, in relation to a lawyer, means the professional title used in the member state in which the lawyer acquired the right to use that title;

“Law Society” means the Law Society of Ireland;

“lawyer” means any person who is an Irish citizen or a national of a member state and who is authorised to pursue his or her professional activities in a member state under any of the professional titles specified in the Schedule to these Regulations;

“member state” means -

(a)          a contracting party (other than the State) to the EEA Agreement, or

(b)          the Swiss Confederation.

and, where appropriate, means more than one member state;

“professional activities”, in relation to a lawyer, means professional activities pursued on a permanent basis by the lawyer under the home professional title;

“qualifying certificate” has the meaning given to it by Regulation 8(1);

“register” means the register of registered lawyers established under Regulation 7;

“registered lawyer” means a lawyer in respect of whom a registration certificate is in force;

“registration certificate” means a certificate issued in accordance with Regulation 6(3)(b);

“relevant authority in the home member state”, in relation to a lawyer, means the authority in that member state with which the lawyer is registered;

“solicitor” has the meaning given to it by section 3(1) of the Act of 1954;

“Swiss Confederation Agreement” means the Agreement between the European Community and its member states, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, done at Luxembourg on 21 June 1999;

“Solicitors Acts” means the Solicitors Acts 1954 to 2002;

“United Kingdom” means the United Kingdom of Great Britain and Northern Ireland;

“United Kingdom barrister” means a lawyer who is authorised in the United Kingdom to pursue professional activities under the professional title of barrister or advocate and whose home member state is the United Kingdom;

“United Kingdom solicitor” means a lawyer who is authorised in the United Kingdom to pursue professional activities under the professional title of solicitor and whose home member state is the United Kingdom.

(2)        Any other word or expression used both in these Regulations and in the Directive has, unless the contrary intention appears, the meaning that it has in the Directive.

(3)        In these Regulations, unless the context otherwise requires -

(a)         a reference to a Regulation is a reference to a regulation of these Regulations,

(b)         a reference to a paragraph is a reference to the paragraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended, and

(c)          references to sections of the Acts of 1954 and 1960 are to those sections as substituted or amended by the Acts of 1994 and 2002, as appropriate.

Amendment of Solicitors (Amendment) Act 2002

3.           The Solicitors (Amendment) Act 2002 is amended by the insertion of the following section after section 1:

“Lawyers' Establishment Directive and 2003 Regulations.

1A.       (1)           The Solicitors Acts 1954 to 2002 are subject to the modifications, provided for in the 2003 Regulations, that are necessary to give effect to the Lawyers' Establishment Directive.

(2)         In subsection (1) -

“Lawyers' Establishment Directive” means Directive 98/5/EC of the European Parliament and of the Council of 16 February 19981 , to facilitate practice of the profession of lawyer on a permanent basis in a member state other than that in which the qualification was obtained and includes -

(a)         a measure which is in force by virtue of the Agreement between the European Community and its member states, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, done at Luxembourg on 21 June 1999, and

(b)         the Decision of the EEA Joint Committee No. 85/2002 of 25 June 20022 amending Annex VII (Mutual Recognition of Professional Qualifications) to the EEA Agreement and having an effect corresponding to that of the Directive:

“2003 Regulations” means the European Communities (Lawyers' Establishment) Regulations 2003 ( S.I. No. 732 of 2003 ).

Competent authority

4.           (1)          For the purposes of these Regulations “competent authority”, in relation to a lawyer, means:

(a)          in any of the following cases, the Bar Council:

(i)         the lawyer is a United Kingdom barrister, whether or not he or she is authorised to pursue professional activities in another member state;

(ii)        the lawyer (not being such a barrister) is authorised to pursue his or her professional activities in any such other state and proposes to pursue the professional activities of a barrister in the State;

(iii)       the lawyer is a registered lawyer who is pursuing the professional activities of a barrister; and

(b)          in any of the following cases, the Law Society:

(i)         the lawyer is a United Kingdom solicitor, whether or not he or she is authorised to pursue professional activities in another member state:

(ii)        the lawyer (not being such a solicitor) is authorised to pursue his or her professional activities in any such other state and proposes to pursue the professional activities of a solicitor in the State:

(iii)       the lawyer is a registered lawyer who is pursuing the professional activities of a solicitor.

(2)    To facilitate the application of the Directive and to prevent its provisions from being misapplied for the sole purpose of circumventing the rules applicable in either the State or member states, a competent authority shall collaborate closely with and assist the corresponding authorities in member states and preserve the confidentiality of any information exchanged.

(3)          A competent authority shall grant representation to registered lawyers in the Bar Council or Law Society and in any other professional associations of barristers or solicitors, as appropriate, and the representation shall involve at least the right to vote in elections to the governing bodies thereof.

Saving

5.           These Regulations do not affect the provision of services by visiting lawyers (within the meaning of the European Communities (Freedom to Provide Services) (Lawyers) Regulations, 1979 ( S.I. No. 58 of 1979 )).

Registration of member state lawyers

Registration

6.           (1)        A lawyer who wishes to pursue the professional activities of a barrister or solicitor shall apply to the competent authority for registration in the register to be established under Regulation 7.

(2)        The application shall be accompanied by -

(a)          a certificate attesting to the lawyer's registration with the relevant authority in the home member state (or, as the case may be, each such state in which is used the professional title under which the applicant proposes to practise) and issued not earlier than 3 months before the date of its presentation,

(b)          where appropriate, written evidence establishing to the satisfaction of the competent authority that -

(i)          (I)           there is in force, in accordance with the rules of the competent authority, an indemnity against any losses arising from claims against the lawyer in respect of his or her professional activities in the State, and

(II)         where the lawyer proposes to pursue the professional activities of a solicitor he or she has paid to the Law Society the annual contribution to the Compensation Fund payable by solicitors, or

(ii)          he or she has taken out professional indemnity insurance, or is a member of a professional guarantee fund, in accordance with the rules of his or her home member state and either -

(I)          the indemnity provided by the insurance or fund against any losses arising from claims against the lawyer in respect of his or her professional activities in the State is equivalent in terms of the conditions and extent of cover as the cover required to be provided in that respect by barristers or solicitors, or

(II)         the equivalence of cover is only partial and, so as to provide full equivalence, he or she has taken out additional insurance, or furnished an additional guarantee, to cover the elements not already covered by the lawyer's existing insurance or guarantee.

(c)          where required by the competent authority, a translation into Irish or English of any document referred to in subparagraphs (a) and (b).

and

(d)          the fee specified by the competent authority.

(3)       (a)          The competent authority shall consider the application as soon as practicable.

(b)          Where paragraph (2) has been complied with in relation to the lawyer, the competent authority shall issue a certificate (a “registration certificate”) to the lawyer and enter his or her name on the register not later than 4 months after receipt of the application

(c)          If the application is rejected or granted subject to conditions, the competent authority shall notify the lawyer in writing of the reasons for the rejection or the imposition of conditions within the period specified in paragraph (b).

(d)          Where the competent authority does not issue a registration certificate or so notify the lawyer within that period, it shall be deemed for the purposes of these Regulations to have decided to reject the application and to have notified the lawyer of the decision on the last day of the period.

(4)       A registration certificate shall contain a statement of any conditions to which the registration is subject and shall remain in force unless cancelled pursuant to Regulation 7(4) or 9(1).

(5)       (a)          A lawyer may not be registered at the same time in both the register maintained by the Bar Council and that maintained by the Law Society.

(b)          A registered lawyer (other than a lawyer referred to in subparagraph (a)(i) or (b)(i) of Regulation 4(1)) may apply to the relevant competent authority for the transfer of his or her registration to the register maintained by that authority, and for that purpose this Regulation shall apply, with any necessary modifications, as if the application were an application for registration in that register.

(6)       In any proceedings -

(a)          a certificate purporting to be signed by an officer of a competent authority or of a corresponding authority in a member state and stating that a person -

(i)           is, or is not, registered with that authority, or

(ii)          was, or was not, so registered during a period specified in the certificate,

is evidence that it was so signed and of the matters stated in it, unless the contrary is shown, and

(b)          a document is admissible as evidence of a translation if it is certified as correct by a person competent to do so.

(7)       A competent authority shall, for the purpose of facilitating the registration in a member state of a barrister or solicitor in accordance with the Directive, issue to the barrister or solicitor a certificate to the effect that he or she is registered with it and authorised to practise in that capacity.

(8)       An appeal may be brought by a lawyer to the High Court against a decision made or deemed to have been made by a competent authority on an application under this Regulation within 42 days of the notification to him or her of the decision or later, with the leave of the Court.

(9)       On the hearing of the appeal the Court may -

(a)        order the competent authority to register the lawyer in the register, with or without conditions,

(b)        remit the case to the competent authority with such directions as the Court sees fit, or

(c)        refuse the appeal.

Register of lawyers

7.           (1)       The competent authority shall establish and maintain a register of lawyers to whom registration certificates have been issued.

(2)       A register shall include the following particulars in respect of each such lawyer:

(a)        date of issue of registration certificate,

(b)        full name,

(c)        whether the lawyer is pursuing the professional activities of a barrister or a solicitor,

(d)        place or places of business in the State,

(e)        home member state,

(f)         home professional title expressed in an intelligible manner in the official language or one of the official languages of the home member state and so as to avoid confusion with the title of barrister or solicitor.

(g)        name of the professional body of which the lawyer is a member in the home member state or the judicial authority before which the lawyer is entitled to practise pursuant to the laws of that state.

(h)        cover, as referred to in Regulation 6(2)(b), against any losses arising from claims against the lawyer in respect of his or her professional activities in the State

(i)         any conditions to which the registration is subject.

(j)         where appropriate, any suspension or cancellation of the lawyer's qualifying certificate.

(3)       The competent authority shall inform the relevant authority in the home member state of the registration under this Regulation of each lawyer from that state, of any conditions to which the registration is or may subsequently be made subject and, where appropriate, of any order of the High Court striking the name of the lawyer off the register and any suspension of the lawyer's qualifying certificate.

(4)       On the removal from the register of the lawyer's name pursuant to an order of the High Court the competent authority shall cancel the registration certificate.

(5)         (a)        The register may be kept in electronic or other non-written form and shall be available for inspection by any person during office hours without payment.

(b)        If the register is kept in electronic or other non-written form, the competent authority concerned shall, on request, make a copy of any entry in it available in written form for such inspection.

(c)        In any proceedings a document stating that a person -

(i)           is, or is not, registered with a competent authority, or

(ii)          was, or was not, so registered during a period specified in the document,

and purporting to be signed by an officer of the competent authority is evidence of that fact and that the document was so signed, unless the contrary is shown,

(d)        Any publication by or on behalf of a competent authority of the names of solicitors or barristers shall include the names of any lawyers registered with it.

Qualifying certificates

Qualifying certificates

8.           (1)         On the registration of a lawyer who proposes to pursue the professional activities of a solicitor the registrar of solicitors (within the meaning of section 8 of the Solicitors Act 1954 ) shall issue a certificate (a “qualifying certificate”) certifying that the lawyer named therein is qualified to pursue those activities during the current practice year.

(2)         If the registration is subject to conditions, the qualifying certificate shall provide accordingly.

(3)         Without prejudice to the Solicitors Acts, the Law Society shall not issue a qualifying certificate, or shall suspend a qualifying certificate which is in force, where -

(a)        the registered lawyer concerned has been prohibited, temporarily or permanently from pursuing the professional activities of a solicitor,

(b)        the registered lawyer has applied for registration in the register maintained by the other competent authority and the application has been granted, or

(c)        the Law Society considers that the cover, referred to in Regulation (6)(2)(b), against losses arising from any claims against the registered lawyer in respect of his or her professional activities in the State is no longer sufficient.

and shall notify the registered lawyer of the refusal or suspension and the reasons therefor as soon as practicable.

(4)         A qualifying certificate which is in force ceases to be in force on the admission of the registered lawyer concerned to practice as a barrister or solicitor.

(5)         In this Regulation “practice year” means a calendar year.

Withdrawal of authorisation to practise in home member state

9.           (1)         Subject to paragraph (3), where the relevant authority in the home member state withdraws a lawyer's authorisation to practise under his or her home professional title, then -

(a)        if the withdrawal is temporary -

(i)           Regulation 10(1) ceases to apply in relation to the lawyer, and

(ii)          where the professional activities of the lawyer are those of a solicitor, his or her qualifying certificate stands suspended,

for the period of the withdrawal,

and

(b)        if the withdrawal is permanent, the competent authority concerned shall remove the lawyer's name from the register and cancel his or her registration certificate and where appropriate, his or her qualifying certificate.

(2)         The competent authority concerned shall notify the lawyer as soon as practicable of the withdrawal of the authorisation and the effect of the withdrawal.

(3)         Where a registered lawyer is authorised to pursue professional activities under the home professional title in two or more home member states, paragraph (1) does not apply unless the authorisation to pursue those activities has been withdrawn in all those states, but the registered lawyer is not entitled to pursue professional activities under the home professional title where the authorisation to pursue them in the home member state concerned has been withdrawn.

Professional activities, conduct and discipline

Professional activities

10.         (1)         Subject to these Regulations, a registered lawyer is entitled to pursue the professional activities of a barrister or solicitor, as the case may be, on a permanent basis under the home professional title, as entered in the register, as if he or she were a barrister or solicitor, and, without prejudice to the generality of the foregoing, a registered lawyer -

(a)        may give advice on the law of the home member state, Community law, international law and the law of the State, and

(b)        has the same right of audience as a practising barrister or a solicitor qualified to practise in relation to the representation of a client in any proceedings before a court tribunal or public authority;

and for those purposes references in any enactment or statutory instrument to a barrister or solicitor are to be construed as including references to a registered lawyer so pursuing those activities.

(2)         In any proceedings before a judicial authority where the professional activities in question may, but for these Regulations, be lawfully provided only by a practising barrister or a solicitor qualified to practise, a registered lawyer shall act in conjunction with such a barrister or solicitor who practises before the judicial authority concerned and who would, where necessary, be answerable to that authority.

(3)         (a)        A registered lawyer while pursuing the professional activities of a barrister or solicitor shall -

(i)         use the lawyer's home professional title.

(ii)        indicate the professional body of which the lawyer is a member in the home member state or the judicial authority before which the lawyer is entitled to practise pursuant to the laws of that state, and

(iii)       include a reference to the lawyer's registration with the competent authority.

(b)        The lawyer's home professional title shall be expressed in an intelligible manner in the official language or one of the official languages of the home member state and so as to avoid confusion with the title of barrister or solicitor.

(4)         Section 58(3) of the Act of 1954 is amended by the insertion, after paragraph (h) (inserted by section 77(b) of the Act of 1994), of the following paragraph:

“(i)       an act which complies with the following conditions:

(a)          it consists in the preparation of a formal document for obtaining title to administer the estate of a deceased person or for creating or transferring an interest in land,

(b)          it is done by a lawyer from a state (other than the State) which is a contracting party to the EEA Agreement or from the Swiss Confederation while pursuing the professional activities of a barrister or solicitor on a permanent basis under the professional title used by the lawyer in the state concerned by virtue of the European Communities (Lawyers' Establishment Regulations 2003 ( S.I. No. 732 of 2003 ), and

(c)          such an act is not reserved in that state to professions other than that of lawyer.”.

(5)         (a)        A registered lawyer who is pursuing the professional activities of a solicitor and who contravenes paragraph (3) is guilty of an offence and liable on summary conviction to a fine not exceeding €3,000.

(b)       An offence under this paragraph may be prosecuted by the competent authority concerned.

(6)         In paragraphs (1) and (2) “solicitor qualified to practise” has the meaning given to it by section 3(1) of the Act of 1954.

Application to registered lawyers of rules of professional practice, conduct and discipline

11.         (1)          The rules of a competent authority governing professional practice, conduct and discipline including any of those rules containing sanctions for breaches thereof, apply and have effect, with the necessary modifications, in relation to registered lawyers in respect of professional activities pursued by them in the State.

(2)         Without prejudice to subsection (1), the enactments and regulations thereunder relating to the professional practice, conduct and discipline of solicitors apply and have effect, with the necessary modifications, in relation to registered lawyers pursuing the professional activities of a solicitor.

(3)         The competent authority shall -

(a)        before initiating disciplinary proceedings or proceedings under Regulation 10(5) in relation to a registered lawyer, inform the relevant authority in the home member state as soon as practicable and furnish it with all relevant details.

(b)        cooperate with it throughout the proceedings, and

(c)        inform it as soon as practicable of the outcome of the proceedings (including proceedings on any appeal) and of any sanction imposed and the reasons for it.

(4)         Where a complaint (other than by the Law Society) of alleged misconduct by a registered lawyer who is pursuing the professional activities of a solicitor is received by the Disciplinary Tribunal, it shall inform the relevant authority in the home member state of the receipt of the complaint and the outcome of its consideration of it.

(5)         The relevant authority in the home member state is entitled to make submissions at the hearing of any appeal against a decision made by a competent authority or the Disciplinary Tribunal in disciplinary proceedings against him or her.

(6)         In paragraphs (7) and (8) “appropriate authority” means -

(a)        in relation to a barrister, the Bar Council, and

(b)        in relation to a solicitor, the Law Society,

(7)         If, while a barrister or solicitor is practising under the Directive in a member state, the appropriate authority proposes to initiate proceedings under any of the rules mentioned in paragraph (1) in relation to the barrister or solicitor, the appropriate authority shall -

(a)        so inform the corresponding authority in that state as soon as practicable and furnish it with all relevant details, and

(b)        inform it as soon as practicable of the outcome of the proceedings (including proceedings on any appeal) and of any sanction imposed and the reasons for it.

(8)         The appropriate authority shall decide what action to take, under the rules mentioned in paragraph (1), in the light of any decision of the corresponding authority in a member state concerning a barrister or solicitor practising under the Directive therein.

Further adaptation of enactments and regulations relating to solicitors

12.         (1)         Without prejudice to Regulations 10(1) and 11 -

(a)        references in any enactment or regulations thereunder to the words or expressions referred to in Column 1 of the Table appended to this Regulation, and

(b)        any such references in relation to proceedings before the High Court or Disciplinary Tribunal involving a solicitor.

are -

(i)        to the extent necessary to enable the registered lawyer to carry on the same professional activities as a barrister or solicitor, as provided for in Article 5 of the Directive, and

(ii)        for the purposes of any proceedings before that Court or Tribunal involving a registered lawyer pursuing the professional activities of a solicitor.

to be construed as including references to the words or expressions opposite them in Column 2 of the Table.

(2)         The provisions of the enactments and regulations in which the references concerned occur have effect accordingly, with any modifications made by these Regulations and with any other necessary modifications.

(3)         Registered lawyers who are pursuing the professional activities of a solicitor are to be treated as if they were officers of the High Court and to be subject to the inherent jurisdiction of that Court in like manner and to the same extent as if they were solicitors.

TABLE

Column 1

Column 2

barrister or counsel

registered lawyer pursuing the professional activities of a barrister

roll

register

solicitor

registered lawyer pursuing the professional activities of a solicitor

solicitor qualified to practise

registered lawyer whose qualifying certificate is in force

practice of a solicitor

pursuit by a registered lawyer of the professional activities of a solicitor

practising certificate

qualifying certificate

Registered lawyer who is member of grouping in home member state

13.         (1)         (a)            A registered lawyer who is a member of a grouping in the home member state shall inform the competent authority accordingly and furnish it with any relevant information which it may require in regard to the grouping.

(b)           Such a registered lawyer may pursue professional activities as a member of the grouping or open a branch or agency of the grouping only to the extent, if any, to which doing so is permitted under the rules of professional conduct of the competent authority concerned.

(2)         Nothing in these Regulations precludes from pursuing professional activities as a grouping -

(a)            two or more registered lawyers who are pursuing the professional activities of solicitors, or

(b)            one or more than one solicitor and one or more than one registered lawyer pursuing those activities.

(3)         Registered lawyers may use the name of any grouping in their home member state to which they belong and in that event shall also mention the legal form of that grouping and the names of any of its members who are pursuing professional activities in the State.

(4)         For the purposes of this Regulation a grouping includes persons who are not members of the legal profession if -

(a)            its capital is held entirely or partly, or

(b)            the name under which it pursues professional activities is used, or

(c)            the decision-making power in the grouping is exercised de facto or de jure.

by persons who are not barristers, solicitors or lawyers.

Compensation Fund

14.         Notwithstanding section 21 of the Act of 1960 -

(a)            the Law Society is not required to make a grant from the Compensation Fund to a client of a registered lawyer who is pursuing the professional activities of a solicitor and who, by virtue of Regulation 6(2)(b)(ii), is not required to make a contribution to it, and

(b)            where such a registered lawyer has, in the circumstances mentioned in that Regulation, paid a contribution to the Compensation Fund that is less than the contribution that would otherwise be payable, any grant from the Fund to a client of the lawyer is to be reduced by the amount recoverable by the client from the guarantee fund of which the lawyer is a member, provided in accordance with the rules of the home member state.

Transitional provision

15.           (1)       These Regulations do not apply in relation to a lawyer -

(a)            who, immediately before 1 April 2004, is pursuing professional activities on a permanent basis under his or her home professional title.

(b)            who intends to continue to pursue them after that date,

(c)            who has applied by that date in accordance with Regulation 6 to the competent authority for registration, and

(d)            whose application has not been determined.

(2)         For the purposes of paragraph (1)(d), an application for registration, as at a particular date, is to be taken as not to have been determined if, as at that date, the applicant either -

(a)            has not received a rejection of the application and the period for rejection or deemed rejection has not yet expired, or

(b)            is appealing against such a rejection and the appeal has not been finally determined.

Admission of member state lawyers to practice under professional title of barrister or solicitor

Amendment of European Communities (General System for Recognition of Higher Education Diplomas) Regulations 1991

16.          The European Communities (General System for the Recognition of Higher Education Diplomas Regulations 1991 ( S.I. No. 1 of 1991 ) are amended -

(a)          (in Regulation 4, by the substitution, for “Regulation 5”, of “Regulations 5 and 5A (inserted by Regulation 16 of the European Communities (Lawyers' Establishment Regulations 2003 ( S.I. No. 732 of 2003 )”,

(b)          by the insertion of the following Regulation after Regulation 5 -

“5A.     (1)           Regulation 5 does not apply in relation to the profession of barrister or solicitor where the applicant is a registered lawyer who -

(a)            has effectively and regularly pursued in the State under the home professional title an activity in the law of the State (including Community law) for a period of at least 3 years, and

(b)            applies to the designated authority for admission to practice as a barrister or solicitor by virtue of this Regulation.

(2)            In this Regulation references to the effective and regular pursuit of an activity are to be construed as references to the actual exercise of the activity without interruption other than that resulting from the events of every day life (but not an activity pursued in the State by virtue of the European Communities (Freedom to Provide Services (Lawyers) Regulations, 1979 ( S.I. No. 58 of 1979 )).

(3)            The registered lawyer concerned shall furnish the designated authority with proof of such effective and regular pursuit for a period of at least 3 years and to that end shall provide the authority with -

(a)            any relevant information and documentation and, in particular, the number of matters the lawyer has dealt with and their nature, and

(b)            for the purposes of enabling the authority to verify the effective and regular nature of the activity pursued, any clarification or further details either orally or in writing, as requested by the authority, in regard to that information and documentation.

(4)        Where a registered lawyer has effectively and regularly pursued professional activities in the State under the home professional title for a period of at least 3 years but for a lesser period in the law of the State, the designated authority may apply the provisions of paragraph (1) in relation to the lawyer and to that end shall take into account -

(a)            the effective and regular professional activity pursued by the lawyer during such lesser period.

(b)            any knowledge and professional experience of the lawyer in relation to the law of the State, and

(c)            any attendance by the lawyer at lectures or seminars on the law of the State, including the rules regulating professional practice and conduct.

(5)        For the purposes of paragraph (4) -

(a)            the registered lawyer shall provide the designated authority with any relevant information and documentation, in particular in relation to the matters the lawyer has dealt with; and

(b)            an assessment of the lawyer's effective and regular professional activity in the State and of his or her capacity to continue the activity pursued shall be carried out by means of an interview with the designated authority to verify the regular and effective nature of the activity pursued, unless the designated authority proposes to apply the provisions of paragraph (1) in relation to the lawyer and considers that such an interview is unnecessary.

(6)        (a)           Without prejudice to Regulation 9, a lawyer who is admitted to practice as a barrister or solicitor by virtue of this Regulation is entitled to use the home professional title, expressed in the official language or one of the official languages of the home member state as well as the title of barrister or solicitor, provided that he or she continues to be authorised in that state to pursue professional activities under that title.

(b)            On such admission the registration certificate and, where appropriate, the qualifying certificate of the lawyer ceases to be in force.

(7)        The designated authority may decide to refuse an application under this Regulation where -

(a)            it considers that it would be contrary to public policy to grant it, in particular because of disciplinary proceedings, complaints or incidents of any kind, or

(b)            proof has not been provided by the registered lawyer concerned of the matters mentioned in paragraphs (3) or (4),

and the decision shall include a statement of its reasons for doing so.

(8)        The members of the designated authority shall preserve the confidentiality of any information received by them by virtue of this Regulation.

(9)        In this Regulation ‘home professional title’, ‘home member state’ ‘qualifying certificate’, ‘registered lawyer’ and ‘registration certificate’ have the meanings given to those expressions by the European Communities (Lawyers' Establishment Regulations 2003.”.

and

(c)          in Regulations 8(1) and 8(6), by the substitution, for “Regulation 4 or 5”, of “Regulation 4, 5 or 5A (as so inserted)”.

SCHEDULE

Regulation 2 (1)

LEGAL PROFESSIONAL TITLES IN MEMBER STATES

Austria

Rechtsanwalt

Belgium

Avocat/Advocaat/Rechtsanwalt

Denmark

Advokat

Finland

Asianajaja/Advokat

France

Avocat

Germany

Rechtsanwalt

Greece

Dikegoros

Iceland

Lögmaöur

Italy

Avvocato

Liechtenstein

Rechtsanwalt

Luxembourg

Avocat

Netherlands

Advocaat

Norway

Advokat

Portugal

Advogado

Spain

Abogado/Advocat/Avogado/Abokatu

Sweden

Advokat

Swiss Confederation

Avocat Avvocato/Advocat/Rechtsanwalt/Anwalt/Fürsprecher/ Fürsprech

United Kingdom

Advocate/Barrister/Solicitor

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GIVEN under my Official Seal,

29th December, 2003

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Minister for Justice, Equality and Law Reform.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

The purpose of these Regulations is to bring into force in Ireland the measures necessary to comply with Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of a lawyer on a permanent basis in a Member State other than that in which the qualification was obtained and with related instruments applying to the other Member States of the European Economic Area and to Switzerland. For this purpose provision is made for the registration of such lawyers, their professional activities, conduct and discipline and, subject to certain conditions, their admission into the professions of barrister and solicitor.

1 OJ No. L77 14.3.98

2 OJ No. L266 3.10.02

1 OJ No. L77 14.3.98

2 OJ No. L266 3.10.02