Austria International Trade in Legal Services

Austria International Trade in Legal Services

HOME COUNTRY LICENSING QUESTIONS

Is there legislation governing the legal sector

Rechtsanwaltsordnung (RAO) (Legal Profession Act)  24 June 1996  and Bundesgesetz über den freien Dienstleistungsverkehr und die Niederlassung von europäischen Rechtsanwältinnen und Rechtsanwälten sowie die Erbringung von Rechtsdienstleistungen durch international tätige Rechtsanwältinnen und Rechtsanwälte in Österreich (EIRAG) (The Federal law on the free movement services and establishment of European lawyers as well as the provision of legal services by international lawyers in Austria) 23 May 2000 (as amended).

Under what title do lawyers practise?

Rechtsanwalt 

How does an individual lawyer obtain a "licence" to practise law? How often must this be renewed?

In order to obtain a licence as a lawyer in Austria, an individual must have 1) Austrian or EEA citizenship; b) Full civil capacity; c) Completed the required period of study of Austrian law ; d) Have undertaken the required training; e) Have successfully competed the Austrian Bar Exam; f) Participated in the training courses organised by the Bar; g) Possess the required civil liability insurance. In order to qualify a lawyer must have completed five years’ legal professional work and have passed the bar examination. The bar examination can be taken after three years of training and attendance at the mandatory training courses prescribed for candidate lawyers by the Austrian Bar Association.

Does this entitle the holder to practise throughout the country? If the law license only permits one to practice on a sub-national level, please explain the jurisdictional limits

The Austrian Act allows lawyers to practise throughout Austria but requires registration with a local bar.

 

 

Are there certain activities that are "reserved" to those who are licensed to practise law in the jurisdiction?

The Austrian Act provides that “Lawyers are authorised to represent parties in court and out-of-court cases, regarding public and personal matters before all national courts and authorities. In addition, they provide services as legal advisors and can draw up contracts or act as asset managers’.

Do you need to hold local nationality to be eligible to practise law?

A nationality requirement applies, except for nationals of EEA countries. 

What legal forms can lawyers work in? (e.g. self employment, partnership, limited liability partnership, multi-disciplinary partnership, incorporation)

Austrian lawyers may work as sole practitioners, or in law firm partnerships. They can also enter into legal forms that are registered in the commercial register such as: Open societies (OA), Limited partnership (KG), whose partners may include a lawyer's spouse, children or retired attorneys; or limited liability partnerships.

What other ethical or regulatory requirements must a licensed lawyer comply with? 

Guidelines for the Practice of the Lawyer's Profession (Richtlinien für die Ausübung des Rechtsanwaltsberufes und für die Überwachung der Pflichten des Rechtsanwaltes und des Rechtsanwaltsanwärters (RL-BA 1977)) and additional legislation and rules available at www.rechtsanwaelte.at

Do law firms need to receive a "license" (or permission/approval) to practice law?

Law firms must register on the list of law firms held at the Regional Bar Association office in whose jurisdiction the firm has its main office. The law firm must also register in the Commercial Register above a revenue threshold.

Which authority issues licences? Are there different authorities for individuals and firms? 

Austrian lawyers must register with their local bar association. There is one bar association (Rechtsanwaltskammer) in every federal province of Austria. Details of these can be obtained through the website of the Federal Bar (www.rechtsanwaelte.at)
   

INDIVIDUAL FOREIGN LAWYERS

Are there any explicit rules or restrictions other than visas on fly in fly out practice of law? Ie. Do you need to obtain a licence for temporary practice?

 Temporary provision of legal services is limited to EEA  and Swiss lawyers (EIRAG §2). 

Can a foreign lawyer obtain a visa to visit clients or to market but not to practice?

Austria is one of the 25 countries in Europe that has signed the Schengen agreement. This allows a non-EEA national to obtain a visa to enter one or more of the Schengen countries for business or tourism purposes on a single visit of up to 90 days, or to make multiple entries to the Schengen area on any number of occasions over a 180 day period, provided none of these is for longer than 90 days.  A number of non-EEA countries are exempt from visa requirements.

Can a foreign lawyer obtain a licence to establish and practise as a foreign legal consultant and what is the scope of this limited licence?

Non EEA foreign lawyers are permitted to provide advice on foreign and international law but legal documents pertaining to Austria must be signed by Austrian licensed lawyers. They must clearly designate the country in which they are licensed to practise and they are not allowed to represent an Austrian consumer before Austrian courts and authorities. EEA and Swiss lawyers must register with the Austrian bar and will have full rights to practice.

Are there any conditions that must be fulfilled once a foreign lawyer has been granted a limited licence (e.g. residency requirement)

Foreign lawyers must notify the relevant regional chamber of the Austrian Bar of the vehicle through which they are practising in Austria. In their communications with clients, non EEA foreign lawyers must only use the professional title which they are entitled to use in their home state, must refer to the vehicle which is registered in Austria and through which they practise and to their home professional body.  EEA and Swiss lawyers must adhere in full to the Austrian Bar code of conduct and take out additional indemnity insurance if their home state insurance is not equivalent to that required in Austria.

Are there any conditions that must be fulfilled for a foreign lawyer to qualify for a limited licence? (e.g. prior practice)

Non-EEA foreign lawyers must be nationals of a Member State which is party to the General Agreement on Trade in Services and be entitled to exercise the profession of lawyer in that Member State.

Are foreign lawyers permitted to undertake arbitration and mediation? There are no specific provisions in Austrian arbitration law regulating the qualifications of arbitrators. Any person over the age of 18 with legal capacity may sit as an arbitrator. The parties are however, free to specify particular qualifications in their arbitration agreement, as well as to agree on the number of arbitrators and on a procedure for appointing the arbitrator(s). 
Are foreign lawyers allowed to appear in court under any circumstances? European Union/EFTA and Swiss lawyers may all appear in court provided they do so in association with a local lawyer. Other nationals are not permitted to appear in court.
Can foreign lawyers requalify as local lawyers? A European Union or EEA national who is qualified as a European or EEA lawyer can requalify in Austria by passing an examination set by the Austrian Bar or by practising Austrian law for three years (or a combination of the two). There are no provisions for lawyers of other nationalities to requalify.
Otherwise, a foreign lawyer must consult an Austrian attorney when representing a client in proceedings before Austrian courts and authorities”.

FOREIGN LAW FIRMS

Can a foreign law firm obtain a licence to open an office?

Austria qualified the EU's WTO commitment with the requirement that: “Foreign lawyers may, at the request of a consumer in Austria, temporarily move into the territory of Austria in order to render legal services, only in respect of the law of the jurisdiction where the service supplier is admitted to practice as a lawyer, or in respect of international law (excluding EEA/EC law)”. It is made explicit in EIRAG that this requires registration with the relevant Austrian regional bar and submission to its disciplinary provisions.  The foreign law firm must notify the relevant regional bar in writing when it opens an office and must observe Austrian law and regulations in relation to the permitted form and incompatibilities with other occupations.

Even if a foreign law firm does not require a legal licence must they register in some form in order to set up an office? (e.g. with a ministry of company affairs etc)

The registration requirements for a foreign law firm are dealt with by the special purpose legislation governing European and International lawyers (EIRAG). 

Are there different types of foreign law firm 'licence'  (e.g. Joint Law Venture, stand alone foreign licence etc) No
Is there a quota on the number of licences available? No
Are there geographical restrictions on foreign firm licences or on the number of branches a foreign firm can have? No
Are there "scope of practice" rules that apply directly to foreign law firms (as opposed to lawyers themselves)? (e.g. home, host, international law), if so, what are they?

There are no scope of practice rules that apply to firms as opposed to individual lawyers.

Are there restrictions on the corporate form a foreign law firm can take? Foreign law firms must take one of the forms permitted to Austrian lawyers (EIRAG §42)
Are there rules about the name a foreign law firm can take? No
What entity grants a 'license' to a foreign law firm? If that entity is on the Internet, please provide the URL The relevant chamber of the Austrian bar, depending on where the foreign firm wishes to establish (see www.rechtsanwaelte.at)
   

EMPLOYMENT AND PARTNERSHIP

Are there restrictions on the ownership share of foreign lawyers in a law firm? No
May a domestic lawyer be employed by a foreign lawyer or law firm? The ethical requirement for Austrian lawyers to be independent means that they cannot be employed except under contracts which permit them to have their own separate clients etc.
Can a domestic lawyer enter into partnership with a foreign lawyer? Yes
Can a domestic lawyer or domestic law firm employ a foreign lawyer? Yes
   

OTHER USEFUL LINKS/SOURCES

Other useful sources or comments or links

www.rechtsanwaelte.at