2004 No. 186
LEGAL PROFESSION

The European Communities (Services of Lawyers) Amendment (Scotland) Order 2004

Made
Laid before the Scottish Parliament
Coming into force

At the Court at Windsor Castle, the 14th day of April 2004

Present,

The Queen’s Most Excellent Majesty in Council

Her Majesty, in exercise of the powers conferred on Her by section 2(2) of the European Communities Act 19721 and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:

Citation, commencement and extent

1.

(1)

This Order may be cited as the European Communities (Services of Lawyers) Amendment (Scotland) Order 2004 and shall come into force on 17th May 2004.

(2)

This Order extends to Scotland and insofar as it extends beyond Scotland it does so only as a matter of Scots law.

Amendments to the European Communities (Services of Lawyers) Order 1978

2.

The European Communities (Services of Lawyers) Order 19782 is amended in accordance with the following articles.

3.

For “an EEC lawyer” wherever it occurs, and “the EEC lawyer's” where it occurs in article 16(1)(a), substitute “a European lawyer” and “the European lawyer's” respectively.

4.

In article 23–

(a)

after the definitions of “advocate”, “barrister” and “solicitor” insert–

““country of origin”, in relation to a European lawyer, means the country or countries in which he is established”;

(b)

for the definition of “EEC lawyer” substitute–

““European lawyer” means a person entitled to pursue his professional activities in a state in column 1 using the designation referred to in column 2–

State

Designation(s)

Austria

Rechtsanwalt

Belgium

Avocat/Advocaat

Cyprus

Δικηγóρος

Czech Republic

Advokát

Denmark

Advokat

Estonia

Vandeadvokaat

Finland

Asianajaja/Advokat

France

Avocat

Germany

Rechtsanwalt

Hellenic Republic

Dikegoros

Hungary

Ügyvéd

Iceland

Lögmaður

Republic of Ireland

Barrister/solicitor

Italy

Avvocato

Latvia

Zvẽrinãts advokãts

Liechtenstein

Rechtsanwalt

Lithuania

Advokatas

Luxembourg

Avocat

Malta

Avukat/Prokuratur Legali

Netherlands

Advocaat

Norway

Advokat

Poland

Adwokat/Radca prawny

Portugal

Advogado

Slovakia

Advokát/Komerčný právnik

Slovenia

Odvetnik/Odvetnica

Spain

Abogado/Advocat/Avogado/Abokatu

Sweden

Advokat

Switzerland

Avocat/Advokat/Rechtsanwalt/Anwalt/Fürsprecher/Fürsprech/Avvocato”

  • and

    1. (a)

      omit the definition of “member State of origin”.

5.

In article 11–

(a)

omit “member”; and

(b)

for “State” in each place where it appears, substitute “country”.

6.

In article 18–

(a)

in paragraph (2), for “the Solicitors (Scotland) Act, 1933” substitute “the Solicitors (Scotland) Act 1980”4; and

(b)

in paragraph (3), for “section 42 of the Solicitors (Scotland) Act 1933” substitute “section 33 of the Solicitors (Scotland) Act 1980”5.

7.

In the Schedule–

(a)

in Part 1, for “Legal Aid (Scotland) Act 1967 (c. 43)” substitute “Legal Aid (Scotland) Act 1986 (c. 47)”;

(b)

in Part 2, for “Solicitors (Scotland) Act 1933 (c. 21), section 39” substitute “Solicitors (Scotland) Act 1980 (c. 46), section 32”6; and

(c)

in Part 3, for “Solicitors (Scotland) Act 1933 (c. 21), sections 37, 38” substitute “Solicitors (Scotland) Act 1980 (c. 46), section 26”7.
A. K. Galloway
Clerk of the Privy Council
(This note is not part of the Order)

This Order amends the European Communities (Services of Lawyers) Order 1978 (S.I. 1978/1910) (“the 1978 Order”). The 1978 Order implemented Council Directive No. 77/249/EEC, dated 22nd March 1977, to facilitate the effective exercise by lawyers of the freedom to provide services (“the Directive”).

The amendments made by this Order are mainly consequential on adaptations to the Directive resulting from–

(a)

the Treaty concerning the accession of Spain and Portugal to the European Community signed at Madrid and Lisbon on 12th June 1985 (O.J. No. L 302, 15.11.1985, p.160);

(b)

the Treaty concerning the accession of Austria, Finland and Sweden to the European Community signed at Corfu on 24th June 1994 (O.J. No. C 241, 29.8.1994, p.21);

(c)

the Agreement between the European Community and its Member States and the Swiss Confederation, on the free movement of persons, signed at Brussels on 21st June 1999 (which is designated a Community Treaty by the European Communities (Definition of Treaties) (Agreement between the European Community and its Member States and the Swiss Confederation on the Free Movement of Persons) Order 2000 (S.I. 2000/3269)) (O.J. No. L 114, 30.4.2002, p.45);

(d)

the Agreement on the European Economic Area signed at Oporto on 2nd May 1992, by which Iceland, Liechtenstein and Norway joined the EEA (Annex VIIB provides for the mutual recognition of professional qualifications) (O.J. No. L 001, 3.1.1994, p.371); and

(e)

the Treaty concerning the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia to the European Union, signed at Athens on 16th April 2003 (O.J. No. L 236, 23.9.2003, p.179).

Those adaptations confer certain rights to practise on a permanent basis as a lawyer on nationals of, and lawyers professionally qualified in, the affected countries.

Article 2 of the 1978 Order is amended so that the definition of “EEC lawyer” is replaced by a definition of “European Lawyer” which refers to EU Member States, EEA countries and Switzerland, and the national designations of lawyers in those countries (article 4). Further consequential changes are made by articles 3 and 5.

References to Scottish enactments in the 1978 Order are updated (articles 6 and 7).