Dialogue with the German Bars allowed us to clarify their position on structures: Under German company law, branches of UK LLPs with the centre of administration/control in the UK will continue being authorised in Germany. What will not be permitted is UK LLPs opened in Germany for the sole purpose of the German operations and with the centre of administration/control in Germany itself. These will need to restructure into other company forms recognised by German Law.
There is new draft legislation under discussion which would limit to a maximum of two years after Brexit the acquired rights principle that can be applied to those solicitors currently registered as European Registered Lawyers in Germany. This would mean that they would not be able to remain indefinitely on the REL list after Brexit.
The Legal System:
The German legal system is based on the Romano-Germanic Civil Law tradition.
The Legal Profession:
The German profession of Rechtsanwalt (lawyer) stood at 153251 on 1 January 2010.
Approximately 9,500 lawyers practise as Notar (Civil law notary) in Germany. German law requires their intervention in many business and commercial transactions, as well as in probate, conveyancing and some family matters.
The professions of Notar and Steuerberater (tax adviser) have been approved by the Solicitors Regulation Authority (SRA) for the purpose of Multi National Partnerships (MNPs).
Regulation of Legal Profession:
The BRAK (Bundesrechtsanwaltskammer) is the federal regulatory organisation for the profession of Rechtsanwalt. Regulation actually lies with the 27 regional Rechtsanwaltskammern and the one attached to the Bundesgerichthof (Federal Court of Justice) in Karlsruhe. Membership to a Rechtsanwaltskammer is compulsory.
In addition to the regulatory bodies, the DAV (Deutscher Anwaltverein) is the voluntary representative body for German Rechtsanwälte members. Around 45% of German Rechtsanwälte are members of the DAV.
EU, EEA and Swiss nationals
Germany implemented the Establishment Directive 98/5/EC, through the German Law implementing the Directives of the European Community pertaining to the professional law regulating the legal profession (EURAG). Establishment is permitted for EU, EEA and Swiss nationals who are qualified in these countries. It allows them to give advice in international law, the law of their home country as well as German law. Registration under this directive is with the local Rechtanwaltskammer.
Non-EU/EEA/Swiss nationals who are however qualified in the EU/EEA or Switzerland can establish in Germany but are restricted to give advice only in international law and the law of their home country.
Legal services by EU, EEA and Swiss qualified lawyers can also be provided cross-border on a temporary basis under the provisions of the Lawyers Services Directive 77/249/EEC. Contrary to the Establishment Directive, there are no conditions of nationality under the Lawyers Services Directive.
Under Section 206 of the Legal Profession Act (Bundesrechtsanwaltsordnung – BRAO), the Federal Ministry of Justice has approved the following foreign professions as being equivalent to the German’s lawyer profession and therefore entitled to the right of establishment in Germany to give advice in international law and the law of their home country:
- in Egypt: Muhami
- in Albania: Avokat
- in Argentina: Abogado
- in Australia: Barrister, Solicitor, Legal Practitioner
- in Bolivia: Abogado
- in Brazil: Advogado
- in Chile: Abogado
- in China: Lü shi
- in Taipei: Lü shi
- in Salvador: Abogado
- in Georgia: Adwokati
- in Ghana: Lawyer, Legal Practitioner, Solicitor, Barrister
- in India: Advocate
- in Indonesia: Advokat
- in Israel: Orech-Din
- in Japan: Bengoshi
- in Cameroun: Avocat, Advocate
- in Canada: Barrister, Solicitor
- in Korea: Byeonhosa, Lawyer
- in Croatia: Odvjetnik
- in Malaysia: Peguambela & Peguamcara, Advocate and Solicitor
- in Morocco: Mohamin
- in Macedonia: Advokat
- in Mexico: Abogado
- in Moldavia: Avocat
- in Namibia: Legal Practitioner, Advocate, Attorney
- in New Zealand: Barrister, Solicitor
- in Nigeria: Legal Practitioner
- in Pakistan: Wakeel, Advocate
- in Panama: Abogado
- in Philippines: Attorney
- in Russia: Advokat
- in Serbia: Advokat
- in Singapore: Advocate and Solicitor
- in Sri Lanka: Attorney at law
- in South Africa: Attorney, Prokureur, Advocate, Advokaat
- in Thailand: Tanaaykwaamin Turkey: Avukat
- in Tunisia: Avocat
- in Ukraine: Advokat
- in Uruguay: Abogado
- in Venezuela: Abogado
- in the US: Attorney at law
Solicitors of England and Wales as well as European/EEA/Swiss lawyers may apply for registration as European lawyers.
European lawyers can apply for admission as a European Lawyer to the regional Rechtsanwaltskammer in Germany (depending on the Land of intended establishment). Upon admission as a European Lawyer at the regional Bar, the European lawyer becomes a member of the Bar, and would has to pay an annual membership fee. He is then be subject to the German Federal Lawyers Act (Bundesrechtsanwaltsordnung). The application procedure for admission as a European Lawyer is set out in §2-8 of the EuRAG. A proof of citizenship as well as a recent (less than 3 month) certificate issued by the competent authority in the home State attesting to the European lawyer’s membership of that profession may be required. After having effectively and regularly pursued activity as a European Lawyer in Germany practicing German law for at least three years, Solicitors and European/EEA/Swiss lawyers can ask for admission to the profession of Rechtsanwalt. The precise conditions for this are set out in § 11-15 of the EuRAG.
Solicitors of England and Wales (and other EU, EEA and Swiss qualified lawyers) seeking to requalify in Germany can do so in two ways:
- Through Art. 10 of the Establishment Directive 98/5/EC, as transposed in in § 11-15 of the EuRAG, under conditions of nationality and after three years of regular and effective practice of German law in Germany (see above).
- Through the Diplomas Directive 89/48/EEC, now incorporated into the Recognition of Professional Qualifications Directive 2005/36/EC, by sitting the relevant equivalence examination: European lawyers who wish to requalify directly as a German Rechtsanwalt can ask to take an aptitude test on German law (as laid down in § 16- 21 of the EuRAG), which consists in an oral and written examination, in German. The authority to contact to take the test depends on the Land where the European lawyer wishes to establish.
Germany is a member of the European Union and of the World Trade Organisation. Negotiations on behalf of European Union member states are carried out by the European Commission.