The European Communities (Lawyer’s Practice) (Scotland) Regulations 2000

Explanatory Note

(This note is not part of the Regulations)

These Regulations, which are made under section 2(2) of the European Communities Act 1972, give effect to European Communities Parliament and Council Directive No. 98/5/EC of 16 February 1998 (OJEC L77, 14.3.98, P36). The purpose of the Directive is to facilitate the practice of the profession of lawyer on a permanent basis in a member State of the European Community other than the State in which the qualification was obtained.

Under the conditions specified in or permitted by the Directive, a European lawyer may carry out professional activities otherwise reserved to solicitors or advocates and may apply to become a solicitor or advocate.

Part I makes general provision including interpretation, extent and purpose (regulations 2 and 3) and in particular it provides–

(a) that the Regulations shall come into force on 22 May 2000 and that there shall be a transitional period from that date to 22 November 2000 to enable European lawyers practising in Scotland to apply for registration under the Regulations. During that transitional period the offence provision (regulation 21) and the provision in relation to non entitlement to fees (regulation 22) shall not apply (regulation 1);

(b) for the competent authorities for the purposes of registration of European lawyers to be the Law Society of Scotland and the Faculty of Advocates (“the professional bodies”) (regulation 4);

(c) for information to be exchanged in relation to European lawyers registering with one of the professional bodies (regulation 5).

Part II makes provision for the practice of professional activities by registered European lawyers (regulation 6). It provides for the title and description which a registered European lawyer may use (regulation 7). Provision is also made in relation to joint practice (regulations 8 to 10) and the areas of work in which a registered European lawyer may practise (regulations 11 to 14).

Part III makes provision for registration. In particular it provides–

(a) that the professional bodies shall register a European lawyer who has a certificate confirming registration with the competent authority in the lawyer’s home State and who has completed an application and provided the appropriate fee (regulations 16 and 17);

(b) that inter alia a European lawyer may not be registered with both the Law Society of Scotland and the Faculty of Advocates or barristers' professional bodies and vice versa (regulation 18);

(c) the time limit for considering applications and appeal procedure (regulation 19 and 20);

(d) for the creation of an offence of pretending to be a registered European lawyer (regulation 21);

(e) for non recovery of fees etc where the lawyer is not appropriately registered (regulation 22); and

(f) for the issue of certificates of registration and the publication of the names of registered European lawyers (regulations 23 and 24).

Part IV makes provision for regulation and discipline of registered European lawyers.

Part V makes provision for entry into the profession of solicitor and advocate. In particular it provides–

(a) that a registered European lawyer may be exempted from the requirements of the European Communities (Recognition of Professional Qualifications) Regulations 1991 (regulations 29 to 35); and

(b) for the effect of entry into the profession of solicitor or advocate (regulation 36).

Consequential amendments and modifications are made to the Solicitors (Scotland) Act 1980 and other enactments that make specific provision in relation to solicitors (regulation 37 and schedules 1 and 2).