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What Is the Establishment Directive?

European Directive

Establishment Directive 98/5/EC

The Establishment Directive 98/5/EC allows a lawyer who is qualified in one EU Member State (and who is an EU national) to practice on a permanent basis in another Member State under their home professional title.

“Lawyers” covered by the Establishment Directive are defined in article 2 of the Directive. Lawyers wishing to make use of their rights under this Directive must register with the competent body (usually the local bar) in the Member State in which they wish to practice, and be bound by the relevant local rules of professional conduct and insurance and guarantee fund regimes.

Once registered, a European lawyer is able to advise on the law of their home state, international and European law, and also the law of the host state (subject to certain restrictions).

Practice under the Directive must be either on a permanent basis or a temporary provision of services under the Services Directive of 1977.

The two states are mutually exclusive. Whether activities are “permanent” or “temporary” is a question of law on which anyone who may be covered by the Establishment Directive may wish to take advice.

It should be remembered that the Directive only affects lawyers wishing to practise in a Member State other than their own. For European purposes, the UK constitutes one Member State, so the Directive does not affect transfers between Scotland, Northern Ireland and England and Wales.

The Law Society of Northern Ireland is one of the two "competent authorities” in Northern Ireland. The other is the General Council of the Bar of Northern Ireland.

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Following the decision of the UK to withdraw from the European Union, the REL process will no longer be open to EU lawyers wishing to establish in Northern Ireland once the UK leaves the EU. Should the UK leave the EU with a negotiated deal in place, under current terms in this area the Establishment Directive would continue to apply until the end of the transitional period (31 December 2020).

In the event of a ‘no deal’ Brexit, the UK Government has put in place legislation (this includes Northern Ireland and England and Wales, with equivalent legislation introduced in Scotland) to unilaterally offer EU lawyers registered in the UK a grace period until December 2020 to either transfer to UK title, or to alter their business model accordingly. However, the process will close to new applicants on exit day.

The Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2019 can be found by clicking here 

Under the terms of The Services of Lawyers and Lawyers Practice (Amendment) (EU Exit) Regulations 2019, which implement the UK-Swiss Separation Agreement, the rights of existing Swiss Lawyers registered as RELs in Northern Ireland, England and Wales before Exit Day will not be revoked and the Regulations also provide for a longer transitional period for Swiss Lawyers seeking to register and initiate the application to transfer to the host profession for a period of four years from the date of Exit Day. 

The Regulations can be found by clicking here.


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