In the 53rd issue from 13th July 2010 of the State Gazette the amendments to the Bar Act( BA) were published, in which the Bulgarian law was brought in compliance with EU Directive 98/5, concerning the facilitation of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained. According to the amendments each citizen of a Member State of the EU, who has obtained his/her legal education in Bulgaria, can become a lawyer or a junior lawyer; citizens of the European Union, who have obtained their professional legal qualification in another Member State can pursue their professional practice in Bulgaria on an equal basis with the Bulgarian lawyers.These legislative amendments are are subcequent to a number of decisions of the Commission for Protection of Competition( “CPC” ) and the Supreme Administrative Court(”SAC” ) of Bulgaria, in which branches of some international/foreign law firms were sanctioned for their activities in Bulgaria and where comments were made on the discriminative nature of the Bulgarian legislation on advocacy and the latter’s incompliance with European Law. The provisions of the Bulgarian law on advocacy before the amendments stated that only Bulgarian citizens who have completed a legal education and have passed the Bar exam could become lawyers in Bulgaria. Although the foreign lawyers did posses the minimum rights to perform their activities on the territory of Bulgaria, they were restricted by a complicated and time consuming procedure.Following the successful implementation of the Directive the only difference between a Bulgarian lawyer and a foreign one is stated in Article 24 par. 2 of the Bulgarian Bar Act, according to which the representation before the Supreme Administrative Court and the Supreme Court of Cassation has to be done by a lawyer with at least five years of professional practice. Thus foreign lawyers have to be accompanied by a Bulgarian colleague who fulfills the necessary requirements. Apart from the latter difference foreign lawyers, who have been admitted to the Bar in a Member State, have the same rights and obligations as their Bulgarian colleagues.Lawyers from a Member State who wish to permanently pursue their practice in Bulgaria have to apply to the Supreme Council of Attorneys in order to be registered in the Unified Register for Foreign Lawyers. A certificate of legal qualification from the respective Members State as well as a written consent from a Bulgarian lawyer, who, if needed, will accompany the foreign lawyer during the procedural representation, have to be attached to the application. If the application is granted, the foreign lawyer is registered in the Unified Register for Foreign Lawyers and in the Bar Association Registry, to which the accompanying lawyer is a member. A foreign lawyer card is issued in his/her name.
Lawyers from a Member State may request a registration in the Bulgarian Bar Association after 3 years of uninterrupted legal practice in Bulgaria or after passing an equivalence examination. Then, they are withdrawn from the Unified Registry for Foreign Lawyers and are registered in the Bulgarian Lawyers Registry, which entitles them the same rights as Bulgarian lawyers and allows them to pursue their professional practice under the title “advokat”.The Acts by which the Directive was implemented by other Member States of the EU is relatively close to the one in Bulgaria. Restrictions similar to those in the Bulgarian legislation existed in a number of the older EU Member States. In 2004 the European Commission decided to refer France, Spain and Ireland to the European Court of Justice for their failure to implement Directive 98/5. In France this led to the creation of Act No 2004 – 130 of 11 February 2004 reforming the status of certain judicial and legal professions, legal experts, industrial property attorneys and experts in public auctions. The Act amended Law No. 71-1130 of 31 December 1971 reforming certain judicial and legal professions [1]and brought the French legislation in a relative harmony with the EU legislation. As in the Bulgarian Bar Act the French also allows citizens of other Member States, who have received their professional legal qualification in another Member State, to pursue their practice under their home country title in France as long as they provide the necessary proof of qualification and they register with the corresponding French Bar Association.[2] If a lawyer has pursued his practice for three consecutive years in France, he may apply for a French legal title, namely “avocat”. One difference which can be found in the French and Bulgarian legislation on advocacy is that the French law does not allow a foreign lawyer to participate in any procedural representation.[1] In order the foreign lawyers to effectively represent their clients in Court they have to obtain the French legal title as provided by Article 89 Law No. 71 – 1130 of 31 December 1971 as amended by Act No. 2004 – 130 of 11 February 2004.The almost identical provisions of the French and Bulgarian legislation on advocacy can be attributed to a large part to the Guidelines for the implementation of EU Directive 98/5 drawn up by the Council of Bars and Law Societies in Europe. Although not binding they provide the necessary help and instructions to ease the harmonization and unification of the Member States’ legislation.
It should be noted that it is a significant step for Bulgaria not only the implementation of an EU Directive but most of all the fulfillment of one of the fundamental rights of EU, enshrined by the Treaty of Maastricht, namely the freedom to travel, work and live anywhere in the Union. This is a step that shall unite and bring Bulgaria closer to the rest of the Member states.
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[1] Loi No. 71 – 1130 du 31 décembre 1971 portant reforme de certaines professions judiciaires et juridiques
[2] Articles 83 and Article 84 of Law No. 71-1130 of 31 December 1971 as amended by Act No. 2004 – 130 of 11 February 2004
