1. Introduction
When the Treaty of Rome (The Treaty) was signed, the legal profession believed it had no impact on its organisation. Brackers d’Hugo, Bâtonnier of a French city bar, wrote in the journal Le barreau de France in 1958: ‘one may seriously doubt whether the treaty of Rome can have any bearing on the legal profession’.Footnote 1 And when Marcel Raymond, president of the Association Nationale des Avocats, expressed some concerns about the absence of representatives of the legal profession on the European Economic and Social Committee, an official from the French government replied that ‘the common market has nothing to do with lawyers’.Footnote 2 At the time the Treaty entered into force, representatives from the legal profession thus believed that they were out of the scope of its provisions: at the first meeting of the CCBE (European Council of Bars and Law SocietyFootnote 3 ) on 3 December 1960, the European Commission was expected to ‘definitively exclude the legal profession from the scope of the Treaty’.Footnote 4 Yet, from the very beginning, the Directorate General (DG) Internal Market started to work on a directive that would facilitate the circulation of lawyers within the European market.
This article focuses on a specific moment of European integration, which was very important because it was the first and one of the most controversial debates around the legal profession. Based on an analysis of the 16-year debate leading up to the adoption of the 1977 Directive which facilitates the effective exercise by lawyers of freedom to provide services, it focuses in particular on the actors who took part in this debate in order to understand how and why Member States’ legal professionals rallied to the European integration project. This empirical entry point is a point of observation of legal professionals as both objects and actors in the policies aiming at building the common market. The issues at stake raised various questions from ‘what is a lawyer?’ to ‘what is the legal professions’ relationship with the state or with business interests?’.
A. Context: The general programmes and the building of a single market through the ‘Libération’Footnote 5 of professions
The Treaty, in its provisions, does not explicitly provide for a ‘libération’ of the legal profession, meaning its inclusion in the common market project. But it provides a framework for the integration of salaried and non-salaried professions. This framework was developed in the General Programmes for the abolition of existing restrictions on freedom of establishment and on freedom to provide services within the Community, based on Article 54 of the Treaty (the General Programmes).Footnote 6 It aimed to organise European institutions’ activities regarding the freedom to provide services (temporary professional activity in another Member State) and of establishment (permanent settlement of a professional within another Member State).
Although they provided the framework for the work of DG internal market and the adoption of more than ten directives over a period of twenty years (see Table 1), these General Programmes remain surprisingly understudied. They must ‘set out the general conditions under which freedom of establishment is to be attained in the case of each type of activity and in particular the stages by which it is to be attained for each category of activity, the general conditions for achieving freedom of establishment [or freedom to provide services] and in particular the stages involved’.Footnote 7 They should then lead to the adoption of sectoral directives aimed at ‘liberating’ each activity and are therefore the cornerstone of European integration and the building of the common market. Yet the many debates and conflicts that shaped their development provide an insight into the laboratory of the construction of the common market. In 1960, the Commission ‘expressed its support for the inclusion of lawyers in the General Programme (Annex IV) for all the activities of the legal profession, with the exception of their possible participation in the exercise of public authority (in particular in their capacity as substitute judges)’.Footnote 8
Table 1. Chronology of the work the European institutions regarding the freedom to provide services for lawyers
Adopted in 1961, the General Programmes gave rise to intense regulatory activity in the Commission’s departments. As such, they were the professional dimension of the intense activity to harmonise and liberalise the movement of goods and services, an activity that involved a substantial re-regulation operation. As a sign that the aim was indeed to create a new, European level of regulation, the archives refer to the ‘liberation’ of the professions rather than their ‘liberalisation’, a term that would not become widespread in administrative archives until more than a decade later.
But the schedule set by these texts could not be kept, due to the many conflicts raised by this Commission intervention at the heart of the ‘systems of professions’ in the six Member States. The delays mainly concerned so-called ‘self-employed’ activities: while the first wave of sectoral directives for the liberal professions was initially scheduled for 1963, the first directive, regarding doctors, was not adopted until 1975. It would be another ten years before pharmacists and architects would also be subject to European regulation. In 1969, when the Programmes initially envisaged that all the activities listed in the Annexes would be subject to a ‘libération’ directive, no liberal profession had yet been the subject of European regulation. This gave cause for concern to the Commission, which was worried about its ability to intervene in this field of activity.
The ‘libération’ of the legal profession was then seen as a way to achieve the future common market: ‘one of the most important ways to achieve the economic union between Member States’ according to the director of the legal service of the Council, Daniel Vignes.Footnote 9 But negotiations foundered on Article 55 of the Treaty, which seemed to exclude them from the right of establishment and the freedom to provide services within the Community. The legal interpretation of this Article was the key issue of the 15-year long negotiations Table 2.
Table 2. Chronology of the work the European institutions regarding the freedom to provide services for lawyers
B. The legal and professional controversy on Article 55
If the Treaty barely mentions lawyers,Footnote 10 its Article 55(1) seemed to be a direct obstacle to the European integration of some regulated professions, in particular the legal profession. According to this Article, the provisions of the chapter on the right of establishment ‘shall not apply, so far as any given Member State is concerned, to activities which in that state are connected, even occasionally, with the exercise of official authority’. The question was therefore the following: does this Article apply to the legal profession? Do lawyers participate in the exercise of official authority? It is true that one could consider that this is the case, particularly when they participate in the administration of justice, in litigation and pleading activities. But other activities may seem more remote, such as legal advice.
What made it more relevant is the fact that during the travaux préparatoires of the Treaty, negotiators had precisely the legal professions in mind when they reached an agreement on this provision.Footnote 11 And even if we consider that the Article does indeed exclude lawyers from the scope of the right of establishment, does it exclude the profession as a whole or just the specific activities that are connected with the exercise of official authority? The latter option would then be considered as a ‘restrictive interpretation’ because it would allow for the liberalisation of a part of the legal profession’s activities.
The question of the application of Article 55 to the legal profession is at the centre of the heated discussions that took place from 1959 to 1974 regarding the draft directive published by the European Commission. The origin of such difficulties can be found in the national historical construction processes of legal professions in Europe. Each European legal profession features different relationships to the market and the state. According to Olgiati, one of the reasons that explains the difficulties of regulating learned professions at the European level is that EU policies are ‘market-oriented’ (they aim to create a European economic market) and thus they tend to see any professional activity ‘as a service product’.Footnote 12
Regarding the legal profession, this market-oriented policy can give rise to two problems. It challenges both its relationship with the state and with business interests. First, the legal profession is a regulated profession, characterised by control at entry level and a regulated body, two conditions that can be seen as obstacles to the competition and to the achievement of the common market. Regulated professions define the conditions of their own work, their theoretical knowledge and practices, by controlling the education and the access of practitioners. Regulated professions are legally protected. This legal protection especially concerns their monopoly on a specific activity.Footnote 13 Deregulating the legal profession thus questions its historically ambivalent relationship with states. While state-building has been sustained by the development of legal professions, States also guarantee their independence.Footnote 14 Second, the market-oriented policy can threaten national professional models and their distancing from business interests. The legal profession is based on the strong commitment to ‘disinterestedness’.Footnote 15 This means that it relies on its distance from commercial interests.Footnote 16 And that is why it was not seen, at first sight, as involved in the construction of a common market. However, this rhetoric of ‘disinterestedness’, along with the necessity to keep the profession united, has been weakened by the development of a business bar and the opening of the profession to new practices. These changes differ from Member State to Member State and what is at stake in the debate regarding the integration of the legal profession in the EU depends on each state’s national traditions and historical construction of the legal profession.
C. Towards a bottom-up approach of the European integration of legal professions
To fully understand what is at stake in the legal controversy surrounding Article 55, this article adopts a bottom-up, actor-centered approach, distancing itself from a binary analysis of European and national structures. The sociology of professions has sought to grasp the effects of European integration on the structuring and governance of professions, but this article aims to develop a different approach, focusing on professionals.
Sociologist Florent Champy identifies the construction of a large common and competitive European market as a ‘threat’ to the national professional model.Footnote 17 But when studying the architects, he leaves the European level in the background; his sociology of architecture considers the European level only tangentially.Footnote 18 Laurence Klesta, in her research on doctors which adopts a legal approach,Footnote 19 focuses more on the question of access to care and how the Court recognised care as services in a decision at the end of the 1990s,Footnote 20 but she does not analyse the consequences that such a qualification, which can be seen as a normalisation of medical care (becoming just another service among others), can have on the image of the doctor in Europe. When examining the impact of European integration, the sociology of professions focuses on professional bodies of governance and the attempts to transfer governance from the national to the European level, rather than studying practices and relationships between individual professionals and EU policies. For example, Julia EvettsFootnote 21 studies the development of new international, professional organisations. These European federations of professions do not have the powers of their national counterparts: rather than regulatory bodies, these federations are ‘forums’, ‘in which international professional regulatory needs are being discussed and where regulatory solutions are being suggested’.Footnote 22 For Vittorio Olgiati, who studies learned professions in Europe, ‘a proper, officially established, EU-centred professional model is still non-existent’.Footnote 23 Of course, there were some attempts to promote a Europeanisation of professions but these attempts were always limited, taking the form of a ‘defensive modernization policy’, whose objective ‘had always been to avoid, as much as possible, any sort of traumatic “transition”’.
In the context of European integration, one needs to take into account the transnationalisation processes of national professionsFootnote 24 and to articulate both the national and the European levels when studying legal professions, in order to analyse how national professional traditions might be in conflict with the European project (or support it). Hence when working on the European level, we have to take into account two elements: first, the EU is composed of national professions, at Member State level, which will influence European law and second, a European legal profession can arise through European law and question in return national historical and professional arrangements. This interaction between different regulatory levels raises the issue of the role and position of lawyers in both national societies and the European polity.
If the sociology of professions is of interest when seeking to understand the Europeanisation of legal professions from the top, this approach, focused on regulatory bodies, tends to neglect actors and their practices and the practical modalities of the encounter between lawyers and the EU. That is why I adopt in this article a slightly different perspective, borrowed from the interactionist sociology of professionals, which allows a shift from professional regulatory bodies to practices. Hence, it helps to describe a co-construction process where law shapes professionals’ practices, representations and beliefs as the latter shape law in return. The sociology of professionals puts aside the fixed notion of ‘regulated profession’ and invites us to take into account internal tensions and evolutions, the fluidity, and changing features of legal professions. This fluidity has two aspects. First, it is temporal: the definition of who is part of the legal profession evolves through time (in France for example, the conseillers juridiques have been considered as lawyers only since the 1991 reform). Second, it is spatial: lawyers’ professional jurisdiction Footnote 25 (the tasks and activities claimed by a profession) is constantly an object of struggles and competition. Not only might it be attacked from the outside (in the 1960s, there was a competition for legal counselling with non-lawyers) but lawyers also try to broaden the scope of their jurisdiction.
How did European law change what it means to be a lawyer? Debates, struggles and the various commitments that European law triggered are a good way to grasp how European law challenged national meanings of the ‘lawyer’ and how European institutions tried to define a European form of the ‘legal profession’, a category that is different from national cases. Challenging these national meanings, European law also questions the practices of lawyers in Europe. This article does not aim to prove that European law created European ways of practicing law but rather to understand how debates about European definitions of what a lawyer is, echoed some national struggles within the profession (the advent of a business bar Footnote 26 for example). It thus questions the legitimate practices of a professional, and the centrality of certain practices over others (giving legal advice over going to court). In this sense, legal controversies are understood here as political and professional battles.
D. Methodology and structure
To understand the practical impact of European law, the methodology used for this article borrows from multiple disciplines: history (archival study), sociology (interviews) and law (analysis of ECJ decisions), following Rebecca Adler-Nissen,Footnote 27 who writes that the combination of these three methods can be useful when grasping Europe through practices and identifying norms shaping these practices and the conflict, debates and struggles about those norms. I studied more specifically the archives from DG internal market and the legal service of the European Commission regarding the debate leading to the adoption of the 1977 directive. I also had the chance to access the CCBE archives showing the internal debates within the European legal professions regarding Article 55. I complemented this archival work with interviews: one with a former official from DG internal market who worked on the directives as well as three lawyers closed to the professional bars in the 60s/70s (one French and two Belgian). I decided to focus more specifically on three national professions (France, German and Italy) because they were particularly involved in the debates surrounding the 1977 Directive, and because each represents a different position in relation to the European project, historically and nationally constructed.
The actor-centered and bottom-up approach allows to revisit a history of European legal integration that has sidelined legal professions,Footnote 28 focusing mostly on the legal service and judges. Private practitioners thus become full protagonists of the construction of the common market. First, national professional traditions differences shaped the positions and oppositions of the bars toward the European regulation of legal professions (2). It is through the use of law, and an interpretative activism of law, that European legal professions could be the target of internal market law (3). It resulted in the adoption of a directive regarding lawyers, sketching an embryonic European legal profession that raised important questions about what it means to be a lawyer in the Community and in its Member States.
2. The profession, the state and the market: National shapes of the lawyer triangle
From 1960, the European Commission consulted Member States about opportunities for liberalizing European legal professions. It sent a questionnaire to Ministries of Foreign Affairs regarding the interpretation of Article 55.Footnote 29 In 1963, DG internal market services organised the first information meeting with professional and governmental delegations.Footnote 30 The meeting resulted in the creation of a working group involving representatives both from Member State governments and bars.
The group met a few times,Footnote 31 but the question of the application of Article 55 seemed to be the main obstacle to any agreement. Especially, the German and Luxembourg delegations refused any compromise: ‘there is no negotiation possible that could lead to a compromise’.Footnote 32 Negotiation meetings during the following years came one after the other, with the same debate: the opposition of the German and Luxembourg delegations blocking any progress on the issue. In June 1966, a member of the Belgian delegation, Marcel Grégoire (lawyer and former minister) strongly opposed the draft directive.Footnote 33 Following this, ‘a new meeting of the working group [was] no longer feasible’. The Luxembourg government, in a note sent to the Commission in 1967, adopted the same approach as the German government. The working group on the draft directive did not meet for two years after these statements (between 1966 and 1968), because of the impossibility of reaching any agreement. Yet, some delegations were in favour of a European directive on lawyers: the Italian and Dutch delegations in particular supported the European Commission’s project.
At the end of the 1960s, negotiations were in deadlock, and the hope of adopting a directive before the deadline set by the General Programmes (1969) became less and less likely. The underlying reasons for the differences between delegations are deeply seated in the historical building processes of national professions. Each process has resulted in a unique set of relationships between the legal profession, the state and the market. Proximity to the state is reflected in state protection of the profession and a rhetoric of ‘disinterestedness’, and proximity to the market is reflected in the development of advice activities for companies, which are more commercially oriented.
Two positions have to be isolated: first, regarding the European project itself and the Europeanisation of legal professions; second, regarding the specific question of the interpretation of Article 55. The relationship between the profession and the state is key to understanding positions on the first question; the relationship between the profession and the market is key to understanding positions on the latter.
In a nutshell, the more the legal profession has been built with the state, the more representatives from the bar oppose any form of Europeanisation of the profession and the intervention of EU institutions in the regulation of professions. The more professions were built on the values that promote disinterestedness and a distance from the market, the less the delegations are in favour of a restrictive interpretation of Article 55. Such interpretation, which distinguishes between lawyers’ activities, dissociating the representation of a client before a court and the provision of legal advice, is more likely to be accepted by legal professions that already have members specialising in business law and advising firms.
I will illustrate this by focusing on Germany, France and Italy. These three countries had different positions in the debate because of the processes of their historical construction, because of the specific feature of the national legal profession, which differs regarding both the relationship with the state and the distance from the market. The chart below illustrates these differences on two axes. The horizontal axis represents the distance/proximity from the market, the vertical one the relationship with the state Table 3.
Table 3. Structure of interests and positions of national legal professions towards European integration
A. In Germany: A litigation-oriented profession
In Germany, the Rechtsanwalt has enjoyed a monopoly over activities regarding the defence of its clients since 1878. Scholars point to the conservative nature and the tendency to inertia of the German bar.Footnote 34 The activities of Rechtsanwälte focus on litigation, and they play a lesser role than their European counterparts in business affairs, most legal counsel in this matter being salaried by companies.Footnote 35 The collective imaginary pictures the Rechtsanwalt in his gown, in court. Professional ethics are based on the sense of public service, objectivity and ‘quasi judicial’ behaviours.Footnote 36 Professional identity is based on an alignment with Akademiker, with whom the Rechtsanwalt shares ‘conservative educational ideals’.
The building of the German legal profession was largely made ‘from the top’, through state regulations rather than through self-regulation.Footnote 37 Further, proximity to the judicial milieu is strengthened by the fact that students in law, whether they want to become judges, lawyers or prosecutors, pursue the same studies. Future self-employed lawyers are a minority during their university studies. Hence, in Germany, there are strong ties between lawyers and the state and the centre of gravity of the legal profession is its judicial activities.
Moreover, the legal profession was largely built outside the market and business interests. Business lawyers were very marginal in the legal profession because the services they offer are mainly provided by in-house lawyers. These salaried lawyers have an institutionalised status since the 19th century so the ‘gravity centre’ of independent lawyers remains litigation.Footnote 38 Thus, the German delegation strongly opposed the restrictive interpretation that separated legal counsel from litigation.Footnote 39 For German representatives, legal advice was a marginal activity, or an activity linked to litigation, which could not be made autonomous. They did not want to ‘atomize the profession’.Footnote 40 The distance from the private sector and the absence of a business bar in the 1960s thus explains the opposition of the German delegations to every draft directive published by the Commission.
The proximity with the state and the distance with commercial interests explain why the German professional and governmental delegations were in such opposition to any form of regulation of the legal profession at the European level. For German representatives, ‘lawyers should be considered as public office holders’; ‘the German lawyer, like the judge or the prosecutor, is a judicial institution and is, accordingly, connected with the exercise of official authority’.Footnote 41 The representatives quote the Sachsenspiegel, a major law book written during the Holy Empire to argue that lawyers’ activities must be seen as similar to judges’ activitiesFootnote 42 and that the legal profession is a ‘state jurisdictional body’.Footnote 43
B. In France: A legal profession opening on to the market
France took a more nuanced approach. There had been a handful of business lawyers since the 19th century, who gave legal counsel to the largest companies and for whom this was their main activity.Footnote 44 But for most of the bar, pleading in court remained the core activity. According to Lucien KarpikFootnote 45 the bar was, in the 1960s, ‘relatively homogeneous . . . directed towards the judiciary’ and kept its distance from the business community.Footnote 46 There were many regulated professions dealing with law: huissiers, avocats, greffiers, notaires, avoués. Those who specialised in legal advice were called ‘agents d’affaires’ or ‘conseillers juridiques’ and were considered as second-order professionals. The bar, which was constructed by putting a distance between it and the market and business interests did not accept them as lawyers.Footnote 47
In France, the bar was built by putting a distance between itself and the market, and also the state: lawyers were not state representatives, even if they exercised a public-service mission. They were not service providers, even if they had market-related activities. This double distance from both the state and the market explains the nuanced position of the French delegations in the negotiations regarding the European directive.
First, because of the distance from the state, the bar did not consider that lawyers exercised official authority.Footnote 48 Second, because of the distance from the market, the bar was also opposed to the restrictive interpretation. According to the delegations, the distinction between activities could undermine the unity of the profession.Footnote 49
It is because of internal considerations that the position of the French bar evolved. First, negotiations regarding the European directive were seen as an opportunity for the bar to absorb another legal profession: the avoués. These could represent clients before certain jurisdictions of appeal but could not plead the cases. The bar wanted to merge with the avoués and in 1960 it attached its support to the directive with a merger.Footnote 50 The merger was effective in 1971 and was supported by the Fédération des avoués de France. Footnote 51 By integrating professionals that were not allowed to plead before the merger, the bar also saw its centre of gravity slightly displaced towards legal advice.
The merger was supported by the reformist branch of the bar, the Union des jeunes avocats Footnote 52 (UJA) which wanted also to integrate the conseillers juridiques. The UJA wanted a modernization of the legal profession: in the 1960s, the total number of independent lawyers was stagnant and young law graduates were increasingly choosing to give legal counsel to companies,Footnote 53 redefining the relationship with the market.
Hence, the evolving French legal profession and the redefinition of its relationship with the market explains the evolution of the French delegation, which supported the draft directive after 1971. It is because of developments within the national profession that the French position changed.
C. In Italy and in the Netherlands: Closer relations (and competition) with business interests
Italy was in favour of the liberalisation of the legal professions from the beginning of negotiations. It might appear surprising that the Italian bar and the German bar adopted such different positions: the two countries experienced strong state control over legal professions during the fascist regimes,Footnote 54 and Italy and Germany have the same history of progressive unification of the legal profession.Footnote 55 But the relationship with the state is not the same in Italy and in Germany: bars (which were forbidden by Mussolini’s regime) were re-established in 1944 and self-regulation was guaranteed by the creation of the Consiglio Nazionale Forense, of which the only members were lawyers. This retreat of the state from the government of the profession, and then the distance that was re-established after the fascist regime, can explain the fact that the Italian delegation did not consider lawyers to be exercising public authority.
Second, the legal profession is also closer to the market: business lawyers emerged at the end of the 19th century, with the industrialisation of the country and the adoption of a new code of commerce in 1882.Footnote 56 For Maria Malatesta, the legal profession did not demonise the relations between lawyers and business interests and, unlike the French bar, there was no hierarchy established between pleading and advising companies. There was a soft division between procuratore (whose activities focus on the defence of the client in courts) and avvocato. If the two positions merged in 1997,Footnote 57 the same person could exercise both activities in the 1960s. The Italian delegation was thus in favour of the European integration of the legal profession. It was one of the advocates of the restrictive interpretation of Article 55, believing that ‘the right of establishment has always been about activities’.Footnote 58 It is the distance from the state and closer relations with the market that explain this position.
Finally, the case of the Dutch and Belgian legal professions is also of interest: for them, the directive might be a way to secure their activities against the competition of agents d’affaires and other legal counsels – professions closer to the Market. These professions, less regulated, could circulate more easily within the communities and then constituted a threat to lawyers’ jurisdiction, competing directly with services offered by lawyers. For countries in favour of the draft directive, what was at stake was their role in the competition for providing legal counselling, especially in the competition with other, non-regulated professions. But professional representatives also feared that their activity could be less valued, thanks to the evolution of their jurisdiction. During the CCBE meeting in September 1962, comments made by the representatives of the bars show their concern about the growing competition with agents d’affaires. The speech of the Dutch representative, Mr. de Brauw, is a good example of the ambivalent position of lawyers towards the European project: ‘for the Dutch delegation, it would seem desirable that lawyers were not excluded from the scope of the common market, in order to fight against the agents d’affaires on an equal footing regarding freedoms’. The Belgian representative agreed and said that this issue was ‘the occasion to obtain, at national level a protection of the legal profession from the agents d’affaires’. From this perspective, obstacles to the circulation of lawyers are a competitive disadvantage compared to the unregulated profession of the agents d’affaires: they can cross borders much more easily than lawyers and then follow their clients to advise them. To be able to practice law within all the Member States would thus secure, for the bar representatives, a new jurisdiction for national legal professions – legal advice. The adoption of a directive on the legal profession meant not allowing the agents d’affaires to be the only beneficiaries of the advantages and freedom offered by the future common market.
Hence, the analysis of each national legal profession, its historical features and its evolutive relationships with the state and the market, helps us understand the different positions toward European integration. Different relationships between the legal professions on the one hand and the state and market on the other hand is one key explanation of the positions of national bars towards the liberalisation of legal professions. Accordingly, we can explain the heated debated regarding Article 55 as a confrontation between national professions. Each national position derives from the specific building of the legal profession in Member States regarding the state and the market.
3. Building a Europeanised legal profession through law?
The issue regarding the application of Article 55 to the legal profession was at the centre of the heated discussions that took place from 1959 to 1974 regarding the draft directive published by the European Commission. It was finally settled in a decision made by the ECJ in 1977 (Reyners). Meanwhile, European institutions had prepared the decision by elaborating and promoting a restrictive interpretation of the Article.
The legal service of the Commission (and its directors Michel Gaudet and Claus-Dieter Ehlermann) has been identified as a central actor in European integration,Footnote 59 but also as an essential actor in the development of a proper Community law.Footnote 60 Surprisingly, this service was not willing to support the restrictive interpretation of Article 55 and remained very cautious on the issue. In 1960, the legal service, responsible for drafting a proposal for a text regarding the freedom of establishment for lawyersFootnote 61 (which would be published along with the General Programmes) wrote: ‘the possibility to apply the freedom of establishment to lawyers is considered to the extent that they do not exercise activities which are connected with the exercise of official authority’.Footnote 62 Hence, the legal service refused to take a strong stance and did not choose one interpretation over the other. It was in other institutions that the restrictive interpretation was developed, an interpretation that allowed the European Commission to finally tackle the question of the regulation of the legal professions. This process led to the possibility of building a Europeanised legal profession, and law was a key resource in it.
A. Imposing a restrictive interpretation
The restrictive interpretation of Article 55 was elaborated in two steps. The first step for the advocates of the restrictive interpretation was to dismiss the travaux préparatoires of the Treaty because they expressly excluded lawyers from the scope of the right of establishment. This « coup de force » can be seen in a speech made by Lambert Schaus at a the CCBE meeting in 1962. The Commissioner for Transport developed arguments to exclude the travaux préparatoires and allow, in fine, the development of a restrictive interpretation of Article 55: he recommended, to ‘determine the legal scope of the text’, rather than seeking ‘what the authors meant’.Footnote 63
DG internal market supported this view, and it constantly repeated, during the negotiations, that the travaux préparatoires had no legal value. During a meeting with the representatives of the CCBE on 22 June 1968, the director general of the DG internal market, Théodore Vogelaar, reminded bar representatives that ‘a gentlemen’s agreement was concluded in this matter between Member States governments’. And according to this agreement ‘we cannot use the travaux préparatoires’.Footnote 64 That is also why European institutions refused the publication of those travaux préparatoires.
Four years later, the European Parliament raised the question of the status of the travaux préparatoires. This was an opportunity, for the rapporteur on the draft directive, to reiterate Lamber Schaus’ arguments: ‘Treaty provisions have to be interpreted according to their end . . . and not in terms of restrictive considerations’.Footnote 65
Once the travaux préparatoires were set aside, the next step was to develop and promote a restrictive interpretation of Article 55. In 1961, DG internal market stated that it was ‘clear that Article 55 should be applied in exceptional circumstances’.Footnote 66 The same year in the Parliamentary Assembly, Gaston Thorn used exactly the same wording,Footnote 67 which is a proof that the arguments circulated through the networks of the advocates of European integration and of the liberalisation of the legal profession.
This interpretation insisted on the fact that the application of Article 55 did not target professions as a whole but only some activities of such professions. Hence, G. Thorn identified ‘three functions’ of the lawyer: ‘private legal counsel’, ‘the defence before a court’ and the ‘substitution to a judge’. He then asked why ‘the activity of private legal counsel could not be liberalised?’. Some MEPs went further. Marcel Fischbach, president of the legal committee of the Parliamentary assembly, a Christian democrat from Luxembourg who held a Doctorate in law, and Jean Duvieusart, a Belgian Christian Democrat lawyer, president of the Parliamentary Assembly in 1964 and 1965 pushed, during the parliamentary debate, for a ‘restrictive interpretation’ of Article 55 ‘in order to allow lawyers to freely exercise their function not only as legal counsel but also as defence counsel in courts’.Footnote 68 The final opinion of the Assembly took into account their position.
From 1960, a coalition of diverse institutional actors rallied in order to promote a restrictive interpretation of Article 55 and allow the Commission to liberalise the legal profession. As Vauchez demonstrated for the development of a ‘programme fort’ for the Community,Footnote 69 these mobilisations gave the right of establishment and the freedom to provide services a much wider scope than was initially intended by the negotiators of the Treaty.
B. The European court of justice and the Reyners case
In 1973, the situation seemed quite desperate and European and national actors involved in the negotiations were ready to end them and drop the idea of a directive for the European legal profession. However, a decision made by the ECJ resonated and events were moved on. The Reyners decision, on 21 June 1974, enabled the negotiations to be relaunched. This decision must be understood in the broader context of the rising power of the ECJ, which has been studied.Footnote 70 From the beginning of the 1960s, several decisions of the Court contributed to the ‘constitutionalisation’ of the treaties,Footnote 71 affirming the primacy of Community law over national law (Costa decision in 1964Footnote 72 ) and the doctrine of direct effect of some provisions of the treaties (Van Gend en Loos in 1963Footnote 73 ). The Court became a fully-fledged actor in European integration.
The ECJ’s activism continued during the second part of the 1960s and in the 1970s, under the leadership of its presidents Robert Lecourt (1962–1976) and Hans Kutscher (1976–1980), who wanted to ‘compensate for the legislative inertia’.Footnote 74 However, this traditional view has been considerably challenged in the past years and scholars from various disciplines have pointed out the limits of an approach that makes judges the committed revolutionaries of European integration.Footnote 75 As shown in the Reyners case, the judgments were often prepared in advance by actors outside the Court and were the source of interpretative work and regulatory activism by the Commission afterwards.
In 1974, the Court handed down a number of decisions broadening the scope of the doctrine of direct effect and ruling some restrictions of the right of establishment and the freedom to provide services as illegal (decisions van Binsbergen Footnote 76 regarding direct effect of the free movement of workers, decision van Duyn Footnote 77 regarding direct effect of directives not transposed into national law after the expiry of the transposition period). The Reyners decision is part of these decisions.Footnote 78
Mr. Jean Reyners was born in Brussels but had Dutch nationality. He had completed his law degree in Belgium and obtained a Law Doctorate in 1957 (at the Catholic University of Leuven). Jean Reyners thought of passing the bar in order to become a lawyer. However, Belgian law had established a nationality requirement to access the legal profession. Nor could Jean Reyners become a lawyer in his country of origin because the Netherlands did not recognise a Belgian diploma. Jacques Veldekens, Jean Reyners’ lawyer, first went to the Belgian Ministry of Justice. The government introduced a bill that aimed to remove Article 428 of the Judicial Code (‘no one can be a lawyer if he is not Belgian’). This Article was modified and amended to become: ‘the nationality requirement may be waived in cases determined by the King’. The royal decree was published on 24 August 1970Footnote 79 but a condition was introduced, after fierce lobbying from the Belgian bar: a condition of reciprocity. Since the Netherlands also had a nationality condition, Reyners could not qualify for exemption. An action of annulment was brought to the Belgian Conseil d’Etat by Reyners and Veldekens, which referred a preliminary question to the European Court of Justice on 21 January 1973.
The Court had to answer two questions. The first issue pertained to the direct applicability of Article 52 regarding the right of establishment. Article 54 provided for directives in order to implement this freedom so the direct effect was not obvious. The second question focused on the interpretation of Article 55. The answer of the Court was of great importance because it had the potential to end 15 years of legal controversy over Article 55. National governments and bars saw this opportunity and sent to the Court their observations. Belgium, the Netherlands, Ireland and the United Kingdom sent observations supporting a restrictive interpretation. Germany, Luxembourg, and the Ordre national des avocats de Belgique advocated for the exclusion of lawyers from the scope of the Treaty. The European Commission, in a note, repeated the arguments developed for over ten years in the DG internal market and in the European Assembly.
The conclusions of the ECJ regarding Article 55 were the following: ‘the exception to freedom of establishment provided for by the first paragraph of the Article 55 must be restricted to those of the activities which in themselves involve a direct and specific connexion with the exercise of official authority; it is not possible to give this description, in the context of a profession such as that of lawyer, to activities such as consultation and legal assistance or the representation and the defence of parties in court, even if the performance of these activities is compulsory or there is a legal monopoly in respect of it’. Hence, the Court endorsed the restrictive interpretation of Article 55. It also ruled the direct effect of Article 52 because of the expiry of the transition period (1969) set down in the General Programmes adopted in 1961, as planned in Article 54. The judgment on the Reyners case, delivered on 21 June 1974, contributed to solving the problem of Article 55 and its interpretation. It opened the possibility for a new proposal for a directive regarding the freedom to provide services for lawyers. The European Commission thus published a new draft, and it was finally adopted on 22 March 1977.
The political role of the Court was claimed by the advocate-general Henri Mayras. He established in his submission a link between economic integration and the development of legal services. According to him, lawyers were ‘above all, the most suited to meet [the] needs’ to provide legal services at the Community level. Recalling the deadlocks in the negotiations (the issue raised the ‘most lively controversies and the most marked differences between the Bars and the national governments, to the extent that the activity of the Community organs in this field have been paralysed’), he saw in the preliminary ruling an opportunity to resolve the controversy (‘That is why it is fortunate that the Belgian Conseil d’Etat [. . .] today gives you the opportunity to settle this question at last and to put an end to the uncertainty which has obtained for so many years’).
This decision has been analysed as an example of Weiler’s theory: normative supranationalism replaced decisional supranationalism, the Court ‘adopting a legislative role’.Footnote 80 Law would have been in this case used as an instrumental tool by the ECJ to further European integration.Footnote 81 However, in light of the recent progress in EU legal studies, this decision also has to be analysed in the light of the involvement of other actors, before the decision and after (to seize the opportunity to relaunch and extend the integration of the legal profession). The political activism of the Court cannot be reduced to the will of judges in favour of European integration and Court activity is subject to ‘multiple investments’.Footnote 82
The efforts of the DG internal market and certain MEPs to develop and enforce a restrictive interpretation before the decision must be studied.Footnote 83 The decision reiterated the arguments made years before. Henri Mayras, in his submission, rejected the travaux préparatoires by using the same two-step theory of DG internal marketFootnote 84 : first, these works were set aside by the signatories themselves (‘The signatory states of the Rome Treaty themselves excluded any recourse to the travaux preparatoires’); second, he invited the judges to take into account that the literal interpretation is less important than the scope of the text (‘But above all you have yourselves several times denied recourse to such a method of interpretation by giving predominance to the content and the finality of the provisions of the Treaty’). The observations sent by Member States to the Court also used the restrictive interpretation.
The consequences of the Court’s decision would have also been less important if the European Commission had not seized the opportunity to further European integration. Regarding the legal profession, the Reyners decision allowed the European Commission to publish a new draft directive in 1975, which was adopted on 22 March 1977. But the Commission also produced a memorandum, sent to the Council,Footnote 85 which drew consequences from the decision for all professions. These conclusions went beyond the scope of the decision. According to the memorandum, the decision meant that all the draft directives regarding the right of establishment, now given its direct effect, were useless. It pushed then for the adoption of new directives related to Article 57 regarding the mutual recognition of diplomas to ensure the legal certainty of the implementation of the right of establishment. The Commission used the direct effect of Article 52 as an implicit threat to the Council: if it were to block directives on Article 57, the Court might also pronounce its direct effect.Footnote 86
4. Conclusion: A Europeanised lawyer for the single market without a European legal profession
In practice, the impact of the directive adopted was minimal. Already in its report for the first draft of the directive, the rapporteur of the Parliamentary assembly, Nicola Romeo, said that the directive would just turn an ‘état de fait’ into an ‘état de droit’: ‘the directive would just give a Community frame to habits and traditions that are already there in the Community bars’.Footnote 87 However, the sociological impact of the text, and the 15-year heated debate about the interpretation of Article 55, raised important questions about what it means to be a lawyer in the Community and established the conditions for the emergence of a particular way of practising law at the European level.
According to Nicola Romeo, ‘the directive is not an innovation. It does not really liberalise the activities to which it refers’.Footnote 88 Two reasons explain why the directive cannot be seen as an innovation. First, ‘in practice, these activities are already liberalised, not only pursuant to substantive law but also according to agreements between bars’.Footnote 89 To overcome the difficulties associated with the stalled negotiations, lawyers had indeed already turned to another solution to facilitate circulation in Europe, and to give them a framework. Bilateral conventions were adopted between bars. The first, signed in 1968 between Benelux bars, entered into force in 1971.Footnote 90 Negotiations between bars took place outside any intervention by European institutions. This was also the case for the agreement between the Paris bar and London solicitors (which entered into force in 1972) and the agreement between England and the Netherlands.Footnote 91 Second, the European directive did not challenge the authority of national bars. Quite the contrary, it reinforced the way national legal professions are organised by recognizing the powers of the bars. The principle of the ‘double deontology’ laid down in the directive strengthened their capacity to enact and implement professional rules: lawyers providing services in another Member State ‘shall observe the rules of professional conduct of the host Member State, without prejudice to [their] obligations in the Member State from which [they] come’ (Article 4). Moreover, lawyers may be introduced to the ‘President of the relevant Bar in the host Member State’ (Article 5). Far from challenging the authority of national bars, the directive thus recognised them as key players in the circulation of lawyers within the Community.
While the directive did not mean a transfer of professional governance from the national to the European level, it was a first step towards the re-regulation of the professions as part of the legal shaping of the common market. Furthermore, the directive, and the 15-year heated debate about the interpretation of Article 55, raised important questions about what it means to be a lawyer in the Community and undoubtedly had a symbolic impact. Beyond national disparities regarding the profession’s practice, bar representatives had to think about the profound significance of their occupation, about the links with the State and the place given to legal counsel. For European officials, the liberalisation of the legal profession was seen as a way to achieve the future common market.Footnote 92 Hence, lawyers were considered as a tool to ensure the free movement of services, as auxiliaries of European firms. As Weiler wrote, a ‘single European market’ is also a ‘single European market’ which is not ‘simply a technocratic programme to remove the remaining obstacles to the free movement of all factors of production’ but also ‘a highly politicised choice of ethos, ideology, and political culture: the culture of the market’.Footnote 93 In essence, the 1977 directive targeted business lawyers, those who provided legal advice. Laurel Terry points out that it is in this text that, for the first time, the word ‘lawyers’ was associated with the word ‘services’, which had consequences on the function assigned to them in society and led to a redefinition of the relations between the legal profession and business interests. The deconstruction of national borders regarding the practice of law led the bars to rethink the links between the state and the profession.
There is a complex interplay between the national and the European legal professions. First, the debate around the building of a European legal profession was shaped by national ones: the heated debate around the interpretation of the Treaty and the positions of each national professional delegation can be explained by the specific structure and historical construction of each legal profession. But, in return, the contours of the European legal professions also changed national ones, reshaping the relationship between the legal profession, the state and the market.
The study of the legal controversy regarding Article 55 helps to understand the impact on the practice of European law and the political/professional dimension of legal controversies. Far from being just a technical and theoretical controversy, the negotiations regarding the 1977 directive called into question the daily practices of lawyers in each Member state and organisation. Law (legal doctrine, legislation, cases) was a key resource in this process, but through the legal construct of an embryonic European legal profession, it is in fact practices that were at stake and prompted the following question: which activities (pleading, legal advice) are at the heart of the legal profession?
Acknowledgements
I am grateful to the editors of this special issue for the fruitful discussions on this article and more broadly on EU legal integration. This article would not exist without the discussions I had with my dear colleagues from the Forms of Life and Legal Integration in Europe (FOLIE) project led by Loïc Azoulai.
Competing interests
The author has no conflicts of interest to declare.
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