EU Services Directive
Report by Bruce Ritchie - July 2009
Changes to the Practice Rules required.
The EU Services Directive which requires to be implemented in the United Kingdom by the end of December 2009 contains provisions under the following headings:
• Administrative simplification.
• Freedom of establishment for service providers.
• Free movement of services.
• Quality of services.
• Administrative co-operation.
• Convergence programme.
Many of the terms of the Directive will require to be implemented by the Government but some have a direct impact on the Society’s Practice Rules.
The provisions on administrative simplification relate primarily to establishing a Point of Single Contact (PSC) for electronic access to information about services provided by the legal profession in each Member State. This does not involve any Practice Rules.
The provisions on freedom of establishment for service providers relate to authorisation schemes, and do have an impact on some of our rules. In particular, the Directive affects the Restriction on Practice Rules (the three year rule) and the Foreign Lawyers Registration Rules (to allow Scottish solicitors to enter into a partnership with registered foreign lawyers in a Multi-National Practice). In addition, the Rules prohibiting MDPs were criticised but they will be revoked as part of the ABS reforms.
The provisions on free movement of services do not affect any of the Practice Rules, but the provisions on quality of services have an impact on the Client Communication Practice Rules which may be addressed by guidance rather than a change in the rules.
The provisions of administrative co-operation and convergence do not affect the Practice Rules.
An outline of the impact for each of the rules mentioned above is noted below:
Restriction on Practice Rules.
These rules do not make provision for account to be taken of any period when the solicitor may have practiced as a European lawyer in his own Home State or as a registered European lawyer practising in Scotland and we have been advised they should be amended to include such periods. We have also been advised that as these rules restrict the ability to practise they would need to be justified by an over-riding reason relating to the public interest and be proportionate. That is something that has been discussed on many occasions and on which we are on firm ground.
Foreign Lawyer Registration Rules
It is suggested that these Rules be amended to include a requirement on the Council to consider an application within a set period of time with the right to apply to the Court if that timescale is not adhered to.
Client Communication Practice Rules
It is suggested that the Rules do not require all the information set out in Articles 22 and 27 of the Directive to be given to clients (Appended below). This can be dealt with by amending the Guidance Note on the Rules rather than the Rules themselves.
Articles 22 and 27 referred to above:
Article 22
2.1 Article 22 requires Member States to ensure that providers must make certain information available to the recipient such as
• The name of the provider, his legal status and form, the address at which he is established and details enabling him to be contacted rapidly and directly and by electronic means;
• In the case of the regulated professions, any professional body with whom the provider is registered, the professional title and the member state in which that title has been granted;
• The general conditions and clauses, if any, used by the provider;
• The insurance guarantees referred to in Article 23(1) and in particular the contact details of the insurer; and
• Additional information if requested by the recipient.
Article 27: Settlement of Disputes
7.1 Article 27 requires Member States to take measures to ensure that providers
(a) supply contact details, in particular an address, to which recipients can send a complaint or a request for information;
(b) respond to complaints in the shortest possible time, use their best efforts to find a satisfactory solution and inform recipients of any possibility of recourse to a non-judicial means of dispute settlement; and
(c) are obliged to demonstrate compliance with the obligations laid down in the Directive as to the provision of information and to demonstrate that such information is accurate.
