Doing business in the EU

30 July 2021

The UK’s exit from the EU means that British citizens no longer enjoy freedom of movement to travel around the EU (with the exception of Ireland) and the European Economic Area (EEA). Accordingly, solicitors heading to the EU to undertake business on a temporary basis – often referred to as fly-in, fly-out (FIFO) – will have much to consider ahead of business travel, including visa requirements and scope of professional practising rights.

Immigration
A British citizen can travel to an EU country on holiday or to attend business meetings without the need to obtain a visa in advance of travel. However, this is subject to limiting their stay to no more than 90 days within any six-month period. If the purpose of travel is, for example, to advise a client on a FIFO basis in a particular EU member state and the advice is chargeable (regardless of the duration of the visit), then it is very important to scrutinise the rules of that particular country to determine whether work permission is required. Each country within the EU and EEA has its own immigration rules and will therefore need to be assessed independently before travelling. Even if you decide that work permission is not required, British citizens now need to be mindful of not falling foul of the 90 days within a six-month limit that includes all trips, business and leisure.

Practising rights
In terms of practising rights, while there is – under the EU-UK Trade and Cooperation Agreement (TCA) – a general right for solicitors to provide (limited) legal services under home country professional title within the EU, it is certainly more restrictive than the previous framework. Previously, solicitors had the right to temporarily provide legal services under their home country professional title in other EU member states on a FIFO basis. The Legal Services Directive (77/249/EEC) meant those individuals had the right to advise clients in other EU member states on a temporary basis on domestic law (both UK and host state), international law and EU law – with no requirement to register with the local bar, or any requirements of local presence. They could also represent clients in the domestic courts and tribunals of other EU member states, although advocacy was often in conjunction with a host state lawyer.

Devil in the detail
In respect of practising rights, the TCA importantly states that “a party to the agreement is to allow a lawyer of the other party to supply ‘designated legal services’ under their home jurisdiction professional title”. ‘Designated legal services’[1] are defined as including legal services and includes legal advisory, arbitration, conciliation) in relation to (i) home jurisdiction law and (ii) public international law excluding Union law [2]. Therefore, while solicitors can provide certain legal services under their home country professional title, the default position is that the TCA does not extend to the law of the host jurisdiction in question, including EU law. Furthermore, despite this mutual commitment to allow the provision of designated legal services by lawyers of both parties, the TCA also enables member states to specify ‘reservations’ – in other words, restrictions – which can be imposed in relation to how the right is exercised, and the commitment must also be read in light of other provisions within the TCA. It is therefore necessary to consider the regulatory position on a member-state-by-member-state basis. Owing to the lack of reservations listed by certain member states, there has been little change from the ‘no-deal’ position in relation to some jurisdictions. However, in other member states where the default position for provision of legal services by third-country lawyers is restrictive, the TCA has firmly established a more liberal entitlement for solicitors to provide legal services on a FIFO basis. 

The TCA provides for British citizens to enter EU countries to carry out the permitted listed short-term business visitor activities[3], although each member state  can seek to rely on an exemption (non-conforming measure)[4] permitted under the agreement. However, in practice – taking Italy, for example – no formal steps have yet been taken to implement the TCA, making it very difficult to understand how the rules will be interpreted, as opposed to Portugal where the TCA is recognised and the rules are clear to the authorities.

It’s clear that having to consider each member state individually means that you will need to be fully apprised of the restrictions and requirements in place for each country where you do business. It would be prudent to seek specialist advice before travelling for business and even when Covid-19 restrictions ease, there may still be a need to navigate the visa and practising requirements on a jurisdiction-by-jurisdiction basis.

FURTHER INFORMATION

If you have any questions or concerns about the content covered in this blog, please contact Jessica Clay or Ilda de Sousa, or a member of the regulatory or immigration team. 

 

ABOUT THE AUTHORS

Jessica Clay is a Senior Associate with over a decade’s worth of experience specialising in legal services regulation. Jessica’s work in this sector focuses  on advising law firms and other regulated individuals  in relation to complying with regulatory obligations, better understanding the importance of legal ethics within regulation, regulatory investigations and public law matters, including reviewing regulatory frameworks and decision making processes.  

Ilda is a partner in the immigration team at Kingsley Napley. She is a South African qualified attorney and a British qualified solicitor with more  than ten years of UK corporate immigration law experience, managing large company clients as well as handling complex matters for individuals, British nationality applications, appeals, judicial reviews and applications under European Law including Brexit related advice. She also has extensive knowledge and experience in all aspects of the Points Based System and in advising investors, entrepreneurs and high-net worth individuals.

 

Foot notes


[1] The legal services definition (pertaining to types of activities rather than the type of law) is based on UN Central Product Classification 861 (UN, 1991) and includes legal advisory, arbitration, conciliation,


[2] Article SERVIN 5.48 ‘legal services in relation to home jurisdiction law and public international law, excluding Union law.’


[3] ANNEX 21 para. 8 Business visitors for establishment purposes, intra-corporate transferees and short-term business visitors


[4] Business visitors for establishment purposes, intra-corporate transferees and short-term business visitors


[3] ANNEX 21 para. 8 Business visitors for establishment purposes, intra-corporate transferees and short-term business visitors

 

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility