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 extent1

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. GallowayClerk 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).