Latest EU developments on freedom of establishment (lawyers and notaries); European Patents Court; contract law

Italian fee rules action dismissed

On 29 March the European Court of Justice ruled in Case C-565/08 Commission v Italy that the Italian system of lawyers’ fee tariffs had not been shown to amount to an infringement of European law. The rules set maximum tariffs for lawyers’ fees, with a system of judicial or client-agreed derogations allowing for higher fees in exceptional circumstances. The Commission alleged the provisions were incompatible with the Treaty provisions on freedom of establishment. The court held, however, that the existence of a restriction could not be inferred from a difference in rules between member states, and that the Commission had not demonstrated that the Italian rules adversely affected lawyers from other member states who were seeking to gain access to the Italian market in legal services.

Access opened to notary profession

On 24 May the ECJ ruled that EU member states which prohibited non-nationals from becoming notaries were in breach of EU law. Belgium, France, Luxembourg, Germany, Austria and Greece were held in breach of their Treaty obligations to provide for freedom of establishment. The court held that the activities of notaries could not be viewed as fulfilling the exemption for activities connected with the exercise of official authority. The member states concerned can no longer prevent solicitors qualified in other member states from training to become notaries in their jurisdictions on the basis of nationality.

Thumbs down for European Patents Court

On 8 March the ECJ ruled that the draft international agreement for a European and Community Patents Court was incompatible with the EU Treaties. The envisaged court would lie outside the institutional and judicial framework of the EU, with exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the Community patent. National courts would thus be deprived of jurisdiction and the power to request preliminary rulings in the field of patents. The court warned that the proposed court would ultimately alter “the essential character” of the EU legal order, a system firmly based on direct co-operation between national courts and the Court of Justice.

Feasibility study on contract law

The publication on 3 May of a “feasibility study” of European contract law marks the Commission’s latest progress in its plans for an “optional instrument” (OI) for consumers and businesses, which the Commission argues would facilitate cross-border transactions. OI could be used as an alternative option to national contract law systems, although it is not yet clear how this instrument could function. The study is based on the work of its European contract law expert group and covers business-to-consumer and business-to-business contracts. Interested parties have until 1 July to provide input on the expert group’s 189 articles and the UK law societies are seeking input from practitioners.

Share this article
Add To Favorites