Binational lawyer: can he have offices in several EU countries?

Imagine for a moment: you are a lawyer in Vitré, well established in your office near the court. But you also have ties in Germany, where you wish to develop a client base. Problem: the internal regulations of the Paris Bar forbid you from having a second professional office abroad. What to do? This is exactly the question the Court of Cassation had to decide in 1985. And its answer made the bars tremble.

This decision, unknown to the general public, is nevertheless fundamental for all legal professionals: it enshrines the freedom of establishment within the European Union, even in the absence of harmonised directives. For owners, tenants or property professionals, it illustrates how European law takes precedence over national regulations, a principle that can also apply to other regulated professions.

So, concretely, what does this judgment say? A German lawyer, established in Paris, wished to take the oath and register with the Paris Bar while keeping his office in Cologne. The Paris Bar refused, invoking Article 83 of the Decree of 9 June 1972 which imposes a single professional domicile in France. But the Court of Cassation, relying on a decision of the Court of Justice of the European Communities, ruled in favour of the lawyer. Explanations.

The facts: a story that happens every day

Our story begins with Mr X, a lawyer of German nationality, established in Cologne. A Doctor of Law from the University of Paris, he wishes to expand his activity in France. He therefore requests admission to the lawyer's oath and registration on the trainee list of the Paris Bar. So far, nothing unusual, except that Mr X maintains his professional office in Cologne. He wants to practise in both countries.

The Paris Bar opposes a refusal: Article 83 of the Decree of 9 June 1972, as well as Article 1 of the internal regulations of the Paris Bar, require every lawyer to have a single professional domicile in France. No question of having a second office abroad. Mr X challenges this decision before the Court of Cassation. He invokes European law: Articles 52 et seq. of the Treaty of Rome, which guarantee freedom of establishment in the European Union.

The Court of Cassation, seised, decides to stay proceedings and refers a preliminary question to the Court of Justice of the European Communities (CJEC). The latter, in a judgment of 13 July 1984, answers clearly: even in the absence of harmonised directives, a Member State cannot refuse a lawyer from another Member State access to the profession solely because he keeps an office in his country of origin. The Court of Cassation, bound by this interpretation, then quashes the decision of the Paris Bar. The German lawyer can therefore practise in Paris while keeping his office in Cologne.

The reasoning of the court — dissected

The Court of Cassation relies on the CJEC judgment of 13 July 1984 (Case 107/83, Klopp). In that judgment, the CJEC interprets Articles 52 et seq. of the Treaty of Rome (now Articles 49 et seq. TFEU), which establish freedom of establishment. According to the CJEC, this freedom is not limited to the right to create a secondary establishment, but includes the right to keep a principal establishment in another Member State while creating a secondary one elsewhere. The nationality condition cannot be required for access to the profession, provided the lawyer fulfils the other conditions (diplomas, good character, etc.).

The Court of Cassation applies this reasoning: Article 83 of the Decree of 9 June 1972, which imposes a single professional domicile in France, cannot prevent a lawyer established in France from also having one or more professional domiciles in other Member States of the Community. The condition is that this lawyer fulfils, except for the nationality condition, the conditions required by the respective laws of those countries. In other words, national regulations must give way to European law.

This decision is a confirmation of the primacy of European law over national law. It shows that French judges, even in the absence of precise directives, must respect the fundamental principles of the Treaty. For non-lawyers, remember this: when a national rule contradicts European Union law (notably freedom of establishment), European law prevails. A principle that can also apply to other regulated professions, such as notaries, architects or accountants.

What this changes for you — concretely

This decision directly concerns lawyers, but it has repercussions for all property professionals. Take an example: an estate agent based in Pacé wishes to open an agency in Brussels while keeping his activity in Brittany. If French regulations required him to have a single establishment, he could invoke European freedom of establishment to challenge this restriction. Admittedly, the profession of estate agent is regulated, but the principle is the same.

For owners and tenants, this decision illustrates an essential mechanism: European law can sometimes take precedence over local rules. If you are faced with a prohibition that seems contrary to European freedoms (for example, an abusive non-competition clause in a commercial lease), know that courts can set aside the national rule. Concretely, if you are a lawyer and wish to practise in several EU countries, you can now do so without fear, provided you respect the ethical rules of each host country.

In practice, what should you do? If you are a regulated professional and wish to establish yourself in another Member State, check that the conditions for access to the profession (diplomas, internships) are fulfilled. Then, do not hesitate to challenge any decision that would forbid you from keeping an office abroad, by invoking freedom of establishment. A lawyer specialised in European law can help you build a solid case.

Four tips to avoid this type of dispute

• Check the regulations of your profession in each country. Before settling in another Member State, ensure you fulfil all the conditions (diplomas, registration with a professional body, insurance) to practise there legally.
• Consult a lawyer specialised in European law. Every situation is unique. A professional can advise you whether freedom of establishment applies to your case and what steps to take.
• Keep a record of all correspondence with professional authorities. If you receive a refusal, keep the letters and the reasons given. They may be useful in case of appeal.
• Consider referring a preliminary question to the CJEC. If national regulations seem contrary to European law, your lawyer can ask the court to stay proceedings and refer to the CJEC for interpretation.

Further reading: related case law and developments

This decision is part of a line of CJEC judgments affirming the freedom of establishment of lawyers. Before the Klopp judgment of 1984, the CJEC had already ruled in the Reyners case (1974) that the nationality condition was incompatible with the Treaty of Rome. The 1985 decision of the Court of Cassation is a direct application of this. Since then, Directive 98/5/EC has harmonised the conditions for practising the legal profession in the EU, making this case law less necessary, but the principle remains valid.

For other professions, the CJEC has extended this reasoning: for example, for doctors (Broekmeulen case, 1981) or architects. The trend of the courts is clear: any restriction on freedom of establishment must be justified by overriding reasons in the public interest and be proportionate. If you face a prohibition, know that judges are increasingly strict on these justifications.

Checklist before taking action

FAQ:

• Can I practise in France and another EU country at the same time? Yes, if you fulfil the conditions for access to the profession in each country. Freedom of establishment allows it, even if national regulations provide otherwise.
• What if my professional body refuses my registration because I already have an office abroad? You can challenge this refusal before the administrative or judicial court, invoking the primacy of European law. Consult a lawyer.
• What are the risks if I set up without authorisation? You could be prosecuted for illegal practice of the profession. It is better to obtain prior authorisation or challenge a refusal before starting to practise.
• Does this freedom apply to notaries? Yes, but with nuances because the notarial profession is often linked to the exercise of public authority prerogatives. The CJEC has issued specific judgments (Case Commission v. Greece, 1992).
• How long does a procedure to challenge a refusal take? On average 6 to 18 months before national courts, plus a possible preliminary reference to the CJEC which can extend the time by 1 to 2 years.

Do you find yourself in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of procedure — and often much more. Book an appointment →