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Deadlines: Motivation ministry: 9 December 2022
Written observations: 21 December 2022
Keywords: lawyer, qualification, profession, Bar Association
Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate the practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained
Facts of the case:
The applicant is an Austrian national residing in Austria. He is an Austrian lawyer and is entered in the register of lawyers in Vorarlberg, Austria. At his request the Liechtenstein Bar Association entered him in the register of European lawyers established in Liechtenstein. Following a dispute between the applicant and the Liechtenstein Bar Association, in particular as to whether the applicant was authorised to assume the mandates of other Liechtenstein lawyers in the context of legal aid, the Liechtenstein Bar Association decided by order of 5 April 2022 as follows: It is found, on the basis of Article 62(2)(c) of the Lawyers Act (RAG), that applicant as an established European lawyer is not authorised to accept mandates in the context of legal aid, nor may he assume such mandates as a substitute. The Government of Liechtenstein dismissed the applicant’s appeal. The applicant lodged an appeal with the Administrative Court challenging that decision. The applicant claims that he wants to be eligible to be appointed as a legal aid lawyer, legal aid defence counsel or public defender by the Liechtenstein courts in proceedings in which one of the parties has been granted legal aid. In addition, he wants to be eligible to act as a substitute for lawyers appointed by the courts as a legal aid lawyer, legal aid defence counsel or public defender. The prohibition, pursuant to Article 62(2)(c) of the Lawyers Act, according to which established European lawyers are not authorised to be appointed as a legal aid lawyer, legal aid defence counsel or public defender, contradicts European law in particular the fundamental freedoms guaranteed under the EEA Agreement as well as Directive 98/5/EC, which do not contain such a prohibition. The assignment of legal aid mandates by the courts, as well as the appointment of a legal aid lawyer, legal aid defence counsel or public defender, can be financially attractive as the lawyer is paid by Liechtenstein, even though according to a fixed tariff. Acting as a substitute for a lawyer appointed by the court as a legal aid lawyer can also be financially attractive if the substituted lawyer and his substitute reach an appropriate financial agreement. In this respect, the prohibition in Article 62(2)(c) RAG hinders European lawyers established in Liechtenstein from freely pursuing their profession. This prohibition does not appear to be based on Directive 98/5/EC. Therefore, the question arises as to whether the freedoms guaranteed by the EEA Agreement and Directive 98/5/EC can be restricted beyond the wording of Directive 98/5/EC in Article 62(2)(c) RAG on the basis of reasons of public interest such as invoked by the Government.
Request for an advisory opinion:
Is a national provision, according to which a lawyer, who normally practices his profession in a Member State other than the one in which he obtained his qualification, is not authorised to be appointed as a legal aid lawyer, legal aid defence counsel or public defender, compatible with Directive 98/5/EC?
Cited (recent) case-law: (C-99/16)
Policy Area: EZK, JenV