EuRAG - Law Implementing the Directives of the European Community
Important Cases
Admission - Application of a German citizen practicing as a solicitor in England after accomplishment of legal education in the USA (German Federal Court (BGH), Beschl. v. 19.9.2003 - AnwZ (B) 74/02)
(PDF-document, BRAK-Mitteilungen 1/04 S. 37)
Admission - Court jurisdiction for disputes concerning admission as a Rechtsanwalt (German Federal Court (BGH), Beschl. v. 7.10.2003 - AnwZ (B) 38/02)
(PDF-document, BRAK-Mitteilungen 1/04 S. 35)
About the conditions of admission to the aptitude test (§ 16 EuRAG) - A US-citizen cannot be admitted to the aptitude test provided by the Law Implementing the Directives of the European Community. (OVG Nordrhein-Westphalen, Urteil v. 30.9.2004)
(PDF-document, BRAK-Mitteilungen 1/05 S. 44)
Conditions of the admission to the aptitude test - Even if the applicant has completed an education qualifying him for the exercise of the legal profession in a member state of the EU according to §16 I EuRAG (admission as solicitor in Great Britain), admission to the aptitude test can be refused according to §16 II EuRAG. The exception from the rule provides that if the education and practical training were not mainly received in EU member states, the effective and regular exercise of the profession of a European Lawyer for at least three years is required for the admission to the aptitude test. After having completed a legal education in Austria, the applicant had obtained his admission as Attorney and Counselor at Law in the USA and later as solicitor in Great Britain after having passed the Qualified Lawyer Transfer Test (QLTT). The Administrative Court regarded only the two-year practical training required for the admission as solicitor as relevant education in terms of §16 II EuRAG. The majority of the overall training had taken place in the USA and only to a minor part in Great Britain. (VGH Baden-Württemberg, Beschluss vom 22.8.2005)
(PDF-document, Link zu BRAK-Mitteilungen 1/06 S.45)
The Lawyers? Court (Anwaltsgerichtshof) Lower-Saxony ruled on July 27, 2006, that a part-time employment as a salaried lawyer practicing under his home-country professional title does not rule out an effective and regular pursuit of an activity in the host Member State in accordance with Art. 10 (1) Dir 98/5/EC. (the Spanish lawyer in question had also been working as a university lecturer for two days a week). However, the lawyer has to prove the effective and regular pursuit by producing a list of cases that he has worked on. The court held that an average number of less than forty cases per annum is no sufficient proof of the required effective and regular pursuit if most of these cases are of a simple nature and the lawyer has worked on the files together with other lawyers of the firm (Anwaltsgerichtshof Celle, 27.7.2006 , Case AGH 14/05).
(pdf-document, Link zu Brak-Mitteilungen 5/2006 S. 225)
On May 19, 2006, the Lawyers? Court Hesse decided that the registration of a lawyer practicing under his home-country professional title (Art. 2 Dir 98/5/EC) cannot be revoked for the sole reason that the lawyer has not submitted a certificate issued by the competent authority of his home country attesting that he is still a member of the bar. The court held that the German registration authority is under a duty to contact the competent authority in the lawyer?s home country and must ask for being furnished with the required paperwork (Anwaltsgerichtshof Frankfurt, Case 2 AGH 15/05).
The Appellate Administrative Court Of Berlin-Brandenburg ruled on December 20, 2006 that a lawyer who has studied law and has begun but has not finished his post-graduate training in Germany and has been admitted as a solicitor in England and Wales (because of a prior admission as a US attorney) must be exempted from the aptitude test under Dir 89/48/EC as his German law degree and basic post-graduate training (which would not have allowed him admission to the German bar) guarantee sufficient knowledge of the German legal system (Oberverwaltungsgericht Berlin-Brandenburg, Case 7 B 28/05).