On 30th–31st January, 2013, the European Commission (EC) organized an explanatory screening meeting in Brussels on Chapter 3 – Right of Establishment and Freedom to Provide Services. Ms. Tatjana Matić, President of Negotiating Group 3 and State Secretary at the Ministry of Foreign and Internal Trade and Telecommunications and Ms. Simona Gatti, Deputy Head of Unit for Serbia, Directorate General for Enlargement opened the two-day explanatory screening which was attended by Ms. Tanja Miščević, Head of Negotiating Team for Accession of the Republic of Serbia to the EU, Mr. Duško Lopandić, Ambassador of Serbian Mission to the EU and representatives from eight competent institutions, including Ms. Ivana Ninčić, RFU Consultant for International Cooperation, who represented the Ministry of Justice and Public Administration (MOJPA). The meeting was also attended through web stream by members of other relevant institutions, including the Bar Association of Serbia. The explanatory meeting was first such meeting in the screening process after the dissolving of the National Assembly of the Republic of Serbia and calling for early elections, for which reason it was stressed by the heads of the Serbian delegation that the dedication to the screening process and intensive work which it entails for the administration is unwavering and remains unaffected by political events. On the other hand, the importance of the explanatory meeting for Chapter 3 was underlined by the EC, as this chapter raises highly complex and challenging issues which will call for a comprehensive analysis the acquis requirements and choosing the most suited system for transposition of legal instruments, all requiring a long-term legislative and administrative reform. During the meeting, four major aspects of the acquis were analysed – mutual recognition of professional qualifications, including sector specific mutual recognition, postal services, and the right of establishment and freedom to provide services. The first day of the meeting began with an in-depth presentation by the EC experts of the overall system of mutual recognition of professional qualifications under the Directive 2005/36/EC which applies to the recognition of professional qualifications when a profession is regulated in a host Member State. It was clarified that the recognition of professional qualifications for lawyers for the purpose of immediate establishment under the professional title of the host Member State is covered by the general system of establishment provided in this Directive, and that for professions whose pursuit requires precise knowledge of national law and in respect of which the provision of advice and/or assistance concerning national law is an essential and constant aspect of the professional activity, such as all legal professions, the host Member State may stipulate either an adaptation period or an aptitude test, and that the aptitude test is, in effect, similar to the examination which nationals of the host Member State take. The amendments to the Directive from 20 November 2013 were also highlighted, which exclude from the scope of the directive notaries who are appointed by an official act of government. It was also accentuated that the question of recognition of professional qualifications is extremely complex, especially having in mind the fact that up to the moment, in the Republic of Serbia, the procedure for the recognition of academic documents (academic recognition) is conducted, which is quite different from the procedure of recognition of qualifications (professional recognition). Of particular importance for the competences of the MOJPA and its obligations under the Stabilization and Association Agreement was the session on free movement o professionals related to lawyers, as one of the legal professions under the purview of the ministry. Three modalities exist by which a lawyer professional qualification may be recognised, which are not in hierarchy or subsidiary to each other. The general system, under Directive 2005/36/EC which is the fastest but also the most difficult, as well as two other systems which were considered during the drafting of the Legal Profession Act in 2011: the system of temporary/occasional provision of services under Council Directive 77/249/EEC1 and the system of establishment under Directive 98/5/EC2. Under the Lawyers’ Services Directive, a lawyer who has the right to practice the profession under the professional title of a Member State can provide services temporarily/occasionally in any other Member State under their home Member State professional title, including giving advice even in host country law, representing clients in legal proceedings before courts, without registering with the host Member State bar and observing the rules of professional conduct of the host Member State. As opposed to the Lawyers’ Services Directive, the Lawyers Establishment Directive allows for the right to establish under the homecountry professional title without examination of the diplomas, to practise the same activities as a host Member State lawyer and facilitates access to the host Member State professional title. It establishes specific provisions on joint practice, practice in a branch of the home grouping, etc. The presentations of the experts opened the floor for many questions regarding the interpretation and implementation of the directives, including problems arising from the double deontology rule and on the level of knowledge examined in the aptitude test. During the second day of the screening, two of the “fundamental freedoms” – the right of establishment and freedom to provide cross border services were presented, through a detailed explanation of the central piece of acquis in this area – the Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (the “General Services Directive”). It was stressed that national laws that restrict these two freedoms must be modified, including not only discriminatory national rules, but also any national rules which are indistinctly applicable to domestic and foreign operators and which hinder or render less attractive the exercise of these "fundamental freedoms", in particular if they result in delays or additional costs. Member States may only maintain such restrictions in specific circumstances where these are justified by overriding reasons of general interest, for instance on grounds of public policy, public security or public health, and where they are proportionate. In the second session it was stated that Member States need to have the administrative capacity to continuously screen administrative or legal rules existing or under preparation as to their compatibility with both freedoms, as interpreted by the European Court of Justice. The General Services Directive entered into MOJPA’s secondary competence in January 2014, with respect to all provisions which relate to services provided by legal professions, excluding notaries and bailiffs. The explanations by the EC experts were highly useful in clarifying problems arising from the wide applicability of this horizontal, cross-cutting directive and the major harmonisation obligations which lie ahead for the MOJPA. For example, establishment related requirements, such as legal form requirements, capital ownership requirements, bans on having more than one establishment, compulsory tariffs for lawyers, etc., need to be evaluated and justified while non-justified ones need to be abolished or made less stringent. Moreover, typical legal obstacles have to be abolished or made less stringent, such as requirements on multidisciplinary activities and total prohibitions on commercial communications (advertising) by regulated professionals such as lawyers. To implement the Services Directive correctly Serbia needs to identify and screen the existing legislation, covered by the Services Directive, as well as administrative practices, for requirements imposed de facto and for the simplification obligation. It was recommended that Serbia set up an interinstitutional/interministerial group to ensure cooperation and use questionnaires and organize meetings/workshops to explain the scope and aim of the screening. Sample questionnaires from other Member States were offered by the EC, in order to assist in this difficult endeavour. The presentations led to a highly engaging discussion on the particular problems which may arise in the implementation of the Directive, such as the abolishing of fixed tariff system with respect to attorneys-at-law and the compensation of costs in legal proceedings. As notaries and bailiffs are explicitly excluded from the application of the Directive, an explanation of the regulation of activities of these two professions on the EU level was requested. Finally, a clarification was requested whether this Directive is applicable to mediators and in what sense. The EC obliged to subsequently answer the question, in writing, having in mind the importance of this profession and the reforms which are taking place. In the closing remarks, the EC stressed that given the complexity and longer term horizon of Chapter 3, much has to be done on both sides until the Screening Report in order to ascertain a realistic position from the side of Republic of Serbia and assesment from the side of EC. The EC urged the Serbian representatives to apply as soon as possible for TAIEX workshops and Twinning projects in order to assess the necessary steps in the implementation of the Service Directive and Directive on the recognition of professional qualifications. The Serbian representatives were requested to send the available relevant legislation in English as well as existing tables of concordance. The EC is expected to submit answers to questions posed at the explanatory meeting which were left open. In the following intensive six-week period preceding the bilateral screening, scheduled for 12-13 March, 2014, Serbia is expected to lay out its’ own legal framework in the relevant topics, i.e. alignment with EU acquis, the level of implementation of the legal framework, and the plans of alignment. All necessary documentation, including PowerPoint presentations, should be delivered by 03.03.2014. The consultant actively prepared before the explanatory meeting, determining the acquis which falls into the purview of the MOJPA, analysing the acquis, establishing contentious issues and drafting relevant questions which she subsequently posed at the meeting. During the meeting, the consultant took all necessary notes, posing questions and requests for clarification to the EC presenters. After the meeting the consultant continues to work on preparing the necessary documents for the bilateral screening, pursuant to the schedule and instructions of the EC and the Negotiating Chapter President.
Updated: February 6, 2014
