When the Public Interest Masks Lawyers' Interests: Luxembourg's Failure to Adhere to Directive 98/5

Abstract:     
Lawyers in Luxembourg appear to be both influential and fearful. Influential in that they initially convinced the Grand Duchy to seek an Article 230 EC annulment of EC Directive 98/5, which aims to further substantiate the rules on the freedom of establishment for the legal profession, and fearful in that they subsequently participated, after failing to obtain satisfaction in the annulment action, in the manifest misimplementation of the Directive. In two recent cases, Wilson v. Conseil de l'Ordre des Avocats du Barreau de Luxembourg and Commission v. Luxembourg, the European Court of Justice, severely but rightly, held that this set of inherently protectionist rules devised by the Luxembourg authorities was incompatible with Directive 98/5.

In this article, the authors address the two most controversial aspects of these judgments. First, the right to practice the legal profession in a host Member State will be examined, with a particular emphasis on language testing. It will be argued that the Court of Justice rightly concluded that Directive 98/5 precludes a prior test of linguistic knowledge. However, the authors contend that the two judgments at issue call into question the stance of the Court of Justice in its previous interpretations of linguistic requirements. Second, the composition of professional bodies with jurisdiction to review decisions denying migrant European lawyers the right to register with the Bar of the host Member States will be considered. The authors concur with the view that the composition of the administrative bodies provided by Luxembourg law is manifestly deficient with regard to the principles of judicial independence and judicial impartiality. It is submitted, however, that the link between the concepts of independence and impartiality should be more clearly articulated when it comes to defining a 'court or tribunal' within the meaning of Article 234 EC.

Number of Pages in PDF File: 37

Keywords: Lawyers, European Community Law, Freedom of Establishment, Linguistic Knowledge, Registration in the national Bar Register

Accepted Paper Series