The purpose of this study is to review on the right of establishment, specially in the fields of lawyers, in the Common Market of the European Union and to prepare for opening of Korea-EU FTA. The core principles governing the right of establishment are laid down in the EC Treaty and have been developed through case law by ECJ. And important developments in several sectors have also been brought about through secondary legislation(directives based on Articles 44 and 47 EC). Articles 43-48 EC on freedom of establishment require the removal of restrictions on the right of individuals(specially this study is concerned on self-employed persons such as lawyers, not workers) and companies to maintain a permanent or settled place of business in a Member State of the EU. But then there are several exceptions on grounds of public policy, security and health. The ECJ has ruled that a range of other public interest justifications may be invoked by Member States to restrict the freedom of establishment. In Reyners, the general activities of lawyer of the EU are not connected with the exercise of official authority. The most typical activities of the profession of avocat, in particular, such as consultation and legal assistance and also representation and the defence of parties in court, even when the intervention or assistance of the avocat is compulsory or is a legal monopoly, cannot be considered as connected with the exercise of official authority. But, the German, Belgian, British, Irish and Dutch Governments, as well as the Commission, regarded the exception contained in Article 45 as limited to those activities alone within the various professions concerned which are actually connected with the exercise of official authority, subject to their being separable from the normal practice of the profession. In Klopp, according to Article 43 EC, the legislation of a Member State cannot may require a lawyer to have only one establishment throughout the Community territory. However, in view of the special nature of the legal profession, the second Member State must have the right, in the interests of the due administration of justice, to require that lawyers enrolled at a Bar in its territory should practise in such a way as to maintain sufficient contact with their clients and the judicial authorities and abide by the rules of the profession. Nevertheless such requirements must not prevent the nationals of other Member States from exercising properly the right of establishment guaranteed them by the EC Treaty. The existence of a second set of chambers in another Member State does not prevent the application of the rules of ethics in the host Member State. Any nationals of the Member State of the EU have chambers more than one. In Gebhard, membership of a professional body may be a condition of taking up and pursuit of particular activities, but it cannot itself be constitutive of establishment. Likewise, Member States must take account of the equivalence of diplomas and, if necessary, proceed to a comparison of the knowledge and qualifications required by their national rules and those of the person concerned. Several cases above mentioned are important to Korea Government preparing to Korea-EU FTA and to lawyers hoping to advance of EU market. If the parties of Korea-EU FTA open the field of service of lawyers, any discrimination on grounds of nationality as a exception of freedom of establishment shall be prohibited. The lawyers or law firms belong to the parties of Korea-EU FTA also have chambers more than one, because any legislation of the parties cannot may require a lawyer or a law firm to have only one establishment throughout the EU and Korea. In addition, in applying their national provisions, the parties of Korea-EU FTA may not ignore the knowledge and qualifications already acquired by the person concerned in another party. Consequently, the parties must take account of the equivalence of diplomas, and if necessary, proceed to a comparison of the knowledge and qualifications required by their national rules and those of the person concerned. On the occasion of Korea-EU FTA, legal disputes of the parties will increase and activities of the lawyers will be lively. Therefore it is necessary to build up lawyers having the expertise on EU law.

The purpose of this study is to review on the right of establishment, specially in the fields of lawyers, in the Common Market of the European Union and to prepare for opening of Korea-EU FTA. The core principles governing the right of establishment are laid down in the EC Treaty and have been developed through case law by ECJ. And important developments in several sectors have also been brought about through secondary legislation(directives based on Articles 44 and 47 EC). Articles 43-48 EC on freedom of establishment require the removal of restrictions on the right of individuals(specially this study is concerned on self-employed persons such as lawyers, not workers) and companies to maintain a permanent or settled place of business in a Member State of the EU. But then there are several exceptions on grounds of public policy, security and health. The ECJ has ruled that a range of other public interest justifications may be invoked by Member States to restrict the freedom of establishment. In Reyners, the general activities of lawyer of the EU are not connected with the exercise of official authority. The most typical activities of the profession of avocat, in particular, such as consultation and legal assistance and also representation and the defence of parties in court, even when the intervention or assistance of the avocat is compulsory or is a legal monopoly, cannot be considered as connected with the exercise of official authority. But, the German, Belgian, British, Irish and Dutch Governments, as well as the Commission, regarded the exception contained in Article 45 as limited to those activities alone within the various professions concerned which are actually connected with the exercise of official authority, subject to their being separable from the normal practice of the profession. In Klopp, according to Article 43 EC, the legislation of a Member State cannot may require a lawyer to have only one establishment throughout the Community territory. However, in view of the special nature of the legal profession, the second Member State must have the right, in the interests of the due administration of justice, to require that lawyers enrolled at a Bar in its territory should practise in such a way as to maintain sufficient contact with their clients and the judicial authorities and abide by the rules of the profession. Nevertheless such requirements must not prevent the nationals of other Member States from exercising properly the right of establishment guaranteed them by the EC Treaty. The existence of a second set of chambers in another Member State does not prevent the application of the rules of ethics in the host Member State. Any nationals of the Member State of the EU have chambers more than one. In Gebhard, membership of a professional body may be a condition of taking up and pursuit of particular activities, but it cannot itself be constitutive of establishment. Likewise, Member States must take account of the equivalence of diplomas and, if necessary, proceed to a comparison of the knowledge and qualifications required by their national rules and those of the person concerned. Several cases above mentioned are important to Korea Government preparing to Korea-EU FTA and to lawyers hoping to advance of EU market. If the parties of Korea-EU FTA open the field of service of lawyers, any discrimination on grounds of nationality as a exception of freedom of establishment shall be prohibited. The lawyers or law firms belong to the parties of Korea-EU FTA also have chambers more than one, because any legislation of the parties cannot may require a lawyer or a law firm to have only one establishment throughout the EU and Korea. In addition, in applying their national provisions, the parties of Korea-EU FTA may not ignore the knowledge and qualifications already acquired by the person concerned in another party. Consequently, the parties must take account of the equivalence of diplomas, and if necessary, proceed to a comparison of the knowledge and qualifications required by their national rules and those of the person concerned. On the occasion of Korea-EU FTA, legal disputes of the parties will increase and activities of the lawyers will be lively. Therefore it is necessary to build up lawyers having the expertise on EU law.

, , , , , ,

European Union Law, European Community, Common Market, Right to Establishment, Free-movement of Persons, Free-movement of Services, Lawyers