The key point to have in mind in reading this guidance is that leaving the EU means that barristers travelling to and/or providing services to the EU are obliged to engage with 27 sets of national rules for regulatory obligations, visas, VAT etc. The TCA does not interfere with those rules save in so far as existing national rules do not provide the minimum commitments promised by the TCA. Even if member state rules do not respect the minimum commitments in the TCA, remedies are potentially cumbersome. Accordingly any members who do have an arguable right under the Withdrawal Agreement (on which see more in FAQ papers 1 & 2) should argue accordingly as it is considerably more liberal than the TCA which sets a low bar for member states to cross.
This guidance is particularly focussed on the practice rights of members of the self-employed Bar engaged in cross-border work in and into the EU, largely, but not exclusively, from a UK base. The advice developed by bodies such as the Law Society of England and Wales (see links below) provides a good overview of the position for those in employment.
The closest category of service professional, as defined by the TCA, that covers fly-in, fly out work by self-employed barristers is Independent Professionals (IPs), though there is some overlap with the category Short Term Business Visitors (under which no fees may be taken).
This information is provided by way of non-binding, preliminary guidance for members of the Bar in an area where the understanding of the TCA is changing rapidly and the views of specialists are not unanimous on the effect of certain provisions. It cannot substitute for members undertaking their own due diligence as to the specific rules applicable in each member state and to each case in which they are involved. The Bar Council cannot be held liable for any action or inaction taken in reliance on any elements of, or omissions from, this guidance and any links or other data to which it refers.
The basic position under the TCA for members of the Bar of England & Wales
If you are:
- Called as a full member of the Bar of an EU member state and hold an EEA nationality, your right to provide legal services in and into the EU using the host state title was preserved by the Withdrawal Agreement 2019 and continues as before.
- Called as a full member of an EU member state Bar but do not hold an EEA nationality, your right to provide legal services in and into your Member State of call was preserved by the Withdrawal Agreement 2019 and is unchanged, as is your right of audience before the Court of Justice of the EU using the host state title, subject to mobility issues. Practice rights in and into other EU Member States are, however, more limited. See 3. below.
- UK-only qualified, self-employed and do not hold an EEA nationality, the TCA commits EU member states, as a minimum, to allow you to provide clients with legal advice on domestic (UK) law and Public International Law (PIL), based on your home title, in and into the EU territory, subject to local registration requirements, reservations and relevant mobility provisions.
In addition, note that:
* Where registration of a lawyer is required, the terms of such should be as favourable as for a lawyer from any other 3rd country;
* No requalification as a domestic lawyer or establishment of a local office may be required in order to provide legal advice on home state law and PIL;
* For junior self-employed practitioners having less than six years professional experience, the TCA contains no guaranteed route to providing even these limited services on a fee-earning basis;
* There is no positive commitment in the TCA to permit barristers to provide advice on EU law, nor, with limited exceptions, to provide representation services on EU territory. However, individual member states may permit either or both. Thus, barristers wishing to offer such services must refer to the specific rules in the relevant member state, including possible conditions or restrictions attached, such as limitations on legal professional privilege.
- The TCA contains a carve-out for legal arbitration (mediation and conciliation) services based on home title when performed on a fly in fly out basis, meaning that Member States may be permissive as to the provision of such services by third country practitioners. France and Sweden are examples of states that have historically been so. However, again, there may be conditions attached, such as local Bar registration, or a time limit for stay.
Preservation of Practice Rights under the Withdrawal Agreement
Independently of the position under the TCA, and apart from those members of the Bar who had completed the applications for, or been called to, an EEA bar before the end of December 2020 (see categories 1 and 2 above), the Withdrawal Agreement 2019 (WA) also preserved practice rights beyond the end of transition for a further category of self-employed person as well as for UK legal practitioners involved in, broadly speaking, two categories of cases:
- For the duration of cases that were pending before the Court of Justice of the EU (CJEU) at the end of the transition period, and
- For those appearing in cases related to the interpretation or breaches of the terms of the WA itself, for a period of up to 8 years following the end of transition.
These exceptions are discussed further in FAQ papers 1 and 2 below.
Frontier Workers under the WA
Article 25 WA protects certain cross-border rights of self-employed Frontier Workers (defined in Article 9b WA as “Union citizens or United Kingdom nationals who pursue an economic activity in accordance with Article 45 or 49 TFEU in one or more States in which they do not reside.”). As you know, Article 49 TFEU sets out the right of establishment.
Practitioners who have been providing legal advice or representation services in one or several member states for a sustained period, and on a regular basis, prior to 31 December 2020, may have been entitled to that protection. However, the specific elements of the definition have not been fully tested in this context. It is not clear, for example, whether it requires, e.g. a local office, a minimum or maximum amount of time on the territory, regularity or number of trips, etc. Pure service provision as facilitated by the Lawyers’ Services Directive 77/249 would seem not to be sufficient.
In any event, in order to avail of the protections of the WA for citizens’ rights generally, and practice rights in particular, registration for the status sought, or at least application there for, should have been completed prior to 31 December 2020.
However, we note that some member states are showing some flexibility, both as to the strict definition of frontier worker that they apply, and the timing of the application for registration as same. Any practitioner who thinks he/she may qualify, is advised to inform themselves of the position in the relevant member state(s) as quickly as possible, as this window, if still open, will surely shut in the coming weeks.
Further information can be found on relevant government websites. For example:
Assistance with practical issues
Members of the Bar who are currently or imminently engaged in cross-border work in or into an EU member state must check that state’s regulatory and entry requirements in advance.
Third country lawyer practice rights in EU member states:
The Law Society of England & Wales Brexit page contains links to the rules applicable in several member states, with of course, a focus on the interests of solicitors.
Christian Wisskirchen, Head of International at the Bar Council, London, will also try to assist barristers with individual queries at: [email protected].
Please note that the position is evolving, so individual practitioners are advised to continue to update themselves before undertaking work in or into a specific member state.
Mobility (work permits, visa requirements, etc):
Legal professional privilege (LPP)
UK practitioners advising on EU law are recommended, as a matter of course, to ensure that their legal advice is countersigned by an EEA qualified lawyer.
Professional indemnity insurance (PII) coverage
As a general rule the Bar Mutual Indemnity Fund provides cover to members of the Bar practising in England & Wales, including those of whom it can be said that their “principal place of business” (though e.g. a tenancy or door tenancy) is in England & Wales, even if the service is provided elsewhere.
Nonetheless, when informing themselves as to the regulatory regime applicable to the provision of a particular legal service in or into an EU member state, members are advised to consider the potential implications for their professional indemnity insurance coverage.
Transfers of personal data from the EU to the UK
Pending the EU’s formal confirmation of the adequacy of the UK’s data protection regime, the TCA provides a temporary solution to keep data flowing, by which personal data shipped to the UK “shall not be considered as transfer to a third country” under EU law. This arrangement will lapse on 30 June 2021 or whenever the EU’s data adequacy decision has been finalized, whichever is sooner. For the time-being therefore, the position is unchanged from pre-end of transition.
On 19 February the Commission tabled two draft adequacy decisions, one under the General Data Protection Regulation and the other for the Law Enforcement Directive. These now await formal confirmation by the European Data Protection Board (EDPB) (opinion due mid-April) as well as by the member states, through the Comitology Procedure. Though this is not yet a done deal, all being well the Commission expects to adopt the two adequacy decisions by early June.
- Note that the effect of these adequacy decisions would be to allow personal data to continue to flow from the EU to the UK without any further safeguard being necessary. That would e.g. negate the need for inclusion of Standard Contractual Clauses in arrangements involving the transfer of personal data from EU territory.
- If and when adopted, these decisions should remain valid for a first period of four years, renewable if the level of protection in the UK were still found adequate.
See further EU materials on this subject:
International dimension of data protection: Adequacy decisions
International dimension of data protection: Brexit
UK government advice
VAT - Legal Services supplied electronically to a non-taxable person:
While the UK was a member state, electronic service supply benefited from the MOSS system, whereby regardless of where the service supplier is based, the VAT is paid in the consumer's home state. Now, a UK service supplier must register for VAT in any member state into which it wants to supply services to a non-taxable person. However, it is possible proactively to register as a third country supplier for the MOSS VAT scheme in one member state, which will then cover you for the whole of the EU.
Access to EEA Host title – Mutual Recognition of Professional Qualifications
For practitioners who wish to provide their services cross border in and into the EU, especially in areas of law that fall outside the scope of home or public international law, the simplest way to avoid the complexity outlined above would be to acquire an EU legal qualification (aka host title), ideally through recognition of their UK one.
The Bar Council is exploring both the possible development of a mutual recognition agreement for (legal) professional qualifications at EU-UK level, which is foreseen as a possibility under the TCA, and in parallel, other possible arrangements with EU national and regional bars, including for the acquisition of partial or temporary titles. We will provide details on this webpage as this work bears fruit.
Ongoing request for practitioner feedback on problems arising
We are gathering evidence of any problems members of the Bar encounter in cross-border practice in and into the EU. If you encounter any obstacle (e.g. refusal of a relevant visa, or of necessary registration by a bar association; difficulties with recognition under the Withdrawal Agreement or in appearing either as counsel or arbitrator in either any ad hoc or institutional proceedings) that you believe are due to the regulatory and legislative changes that took effect from 1 January 2021, please email Anastasia Kostaki: [email protected].
Equally if you have any relevant experience of a positive nature, we would also be grateful for your feedback. Please treat this as a continuing request as opportunities for travel open up during the course of this year. Any communication will be treated as confidential.
In submitting any such report, please identify your practice area and the type of advice, case or hearing concerned, whilst respecting client confidentiality. This will help us to make relevant interventions with HMG or other stakeholders in an effort to mitigate any such difficulties.