Proposition 50K1120

Projet de loi visant à faciliter l'exercice de la profession d'avocat ainsi que l'établissement en Belgique d'avocats ressortissants d'un autre Etat membre de l'Union européenne.

General information ¶

Submitted by

Groen Open Vld Vooruit PS | SP Ecolo MR Verhofstadt Ⅰ

Submission date

Feb. 26, 2001

Official page

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Status

Adopted

Requirement

Simple

Subjects

EU national lawyer organisation of professions access to a profession

Voting ¶

Voted to adopt

Groen Ecolo LE PS | SP Open Vld MR

Abstained from voting

CD&V N-VA FN VB

Party dissidents ¶

• Alfons Borginon (Open Vld) abstained from voting.
• Karel Pinxten (Open Vld) abstained from voting.

Contact form ¶

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Discussion ¶

July 5, 2001 | Plenary session (Chamber of representatives)

Full source

Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 facilitating the permanent exercise of the profession of lawyer in a Member State other than that in which the professional qualification was acquired. Their

Mr. Bourgeois’s bill pursues the same objective and was added to the draft.

The transposition of this Directive is the final stage in the realization of the free movement of lawyers in the European Union. In order to transpose the Directive, a number of provisions of the Judicial Code are amended and supplemented.

The draft law and the draft law also contain two major parts. A first set of provisions ensures that a national of a Member State of the European Union who is entitled in that Member State to hold the title equivalent to that of a lawyer may also exercise that profession in Belgium, though under his original professional title. These lawyers will have to register on an ad hoc list with a Belgian law firm and must maintain their registration in the country of origin.

A second series of amendments to the provisions of the Judicial Code makes it easier for lawyers of an EU Member State to hold the title of lawyer in Belgium and, for this purpose, to apply for their registration on the board of the Bar Association. In short, this will make it easier for EU lawyers to establish themselves in Belgium In the future, these lawyers will be exempted from the conditions of accession, established by Article 428bis of the Judicial Code, provided that they can demonstrate an effective and regular activity of at least three years in Belgium in the field of Belgian law and Community law. If these lawyers cannot demonstrate such work in the field of Belgian law and Community law, an interview with the staff holder of the relevant Order shall take place.

Following the discussion in the committee on the problem of multidisciplinary companies, a hearing was organized with Mr. Van Doosselaere to know his view on the subject. The interested party shared that they could fully find themselves in the arrangement drawn up in the government’s bill. He therefore advocated in the committee that the decision to prohibit EU lawyers from being part of multidisciplinary groups in Belgium be handed over to the separate councils of Orden instead of converting it into an absolute legal ban as provided for in the bill proposed by colleague Bourgeois.

On this subject, the views of the Association of Flemish Balais, of the French Order of Lawyers at the Brussels Balais, of the Conférence des barreaux francophones et germanophones and of staff holder Lange were also obtained in writing. The Association of Flemish Balais resolutely opts for the introduction of a legal ban on participation in multidisciplinary groups. On the other hand, the French Bar Association of Lawyers at the Brussels Bar of Brussels supports the government’s draft. The Conférence des barreaux francophones et germanophones informed the Committee on Justice that it had just established a working group on this subject to determine a position. Staff holder Lange said that the CCBE has always formally expressed itself against the multidisciplinary groups.

In addition to a number of technical amendments, Mr Bourgeois submitted two amendments aiming to legally prohibit a lawyer from exercising his profession in a multidisciplinary group. These two amendments were rejected by 9 votes against 5 and 1 abstinence.

The entire amended draft was approved with 10 votes and 5 abstentions. The added Bill-Bourgeois was declared invalid.

This bill finally translates the Directive 98/5 of 16 February 1998 to facilitate the permanent exercise of the profession of lawyer in another Member State into our positive law. In fact, this should have happened for a long time, namely by 14 March 2000.

We are actually late with the transposition of some directives. In December 1999, a government commissioner was given an additional assignment to remove the backwardness in this area very quickly. As we know, however, Mr. Willockx has now become mayor and we have guessed whether that famous downturn has been shortened. It is, in any case, another example of a late transposition of a directive, which, however, has a direct effect.

Our group has tried to do something about it itself. On 29 March 2000, we submitted a bill. We have repeatedly tried in vain to put it on the agenda and have it discussed. We did not succeed. The government eventually submitted a draft itself late, especially on 26 February 2001; better late than never. In any case, this bill can be called positive, as it is the last necessary step for the realization of the free movement of lawyers within the Union.

I remember that this step has happened. There is a 1977 Directive which regulates the free movement of services within the Union and which was transposed by law in 1982, almost twenty years ago. There is a 1989 directive leading to the recognition of higher education degrees within the Union, but that dead letter remained until it was translated into our positive right.

This was not so easy for the lawyer. Belgium issued a royal decree in 1998 which made the free establishment conditional on a proficiency exam. However, this did not prevent this directive from being transposed here, which will happen here, at least if the Senate agrees and does not cause any further delay, because it is the draft 77, Mr. Speaker.

However, we find the provision in this regulation on the multidisciplinary company less positive. Collega Vandeurzen, the rapporteur to whom I thank in this way, has already pointed out an important point of discussion: does the legislator allow or not to allow the creation of so-called multidisciplinary companies? These include lawyers, accountants and auditors. We believe that the legislature should regulate this.

In any case, the legislator could not ignore this issue, since, according to a provision of the Directive, there should be no discrimination between the lawyers of the host country, in the present case Belgium, and the lawyers of another Member State. Here, the legislator leaves something to the Order of Lawyers. This statement was defended by the French-speaking lawyers and the French-speaking lawyers from Brussels, while the Association of Flemish Balies, together with the European CCBE, is of the opinion that there should be a ban on the multidisciplinary companies.

This is also our position, because we believe that the multidisciplinary company poses a danger of conflicts of interest, for the independence of the lawyer and for professional secrecy.

In this way, it is also a step towards the further mercantilisation of that free profession. Our position has not been achieved.

However, the legislature is not consistent in this regard. At that time — when the SP stood on the same line with us — we rightly inscribed a ban on the multidisciplinary company in the law on the notary. Furthermore, there are proposals to include a similar ban in the ongoing legislation on auditors or at least to introduce a separation between auditing and consulting. After all, there were some bad experiences with it. Therefore, we have consistently advocated for a ban in this law.

The reference to the so-called ban of the National Bar Association does not convince us at all. By the way, the French-speaking Brussels Balie allows access to multidisciplinary resources companies. Later, the Dutch-speaking and French-speaking orders will be authorized to regulate themselves in this, which may result in a conflicting regulation and is not in accordance with the directive.

For these reasons, we will not approve the draft and will abstain from voting.

Mr. Speaker, I agree with the position expressed by Mr. Bourgeois and immediately take the opportunity to congratulate him on his 50th birthday. (Applause to all the banks.)

Mr. Speaker, the CVP is a bit too quick, because my birthday is only tomorrow. I thank them in any case.