Germany International Trade in Legal Services

Is there legislation governing the legal sector

Federal Lawyers' Ordnance ("Bundesrechtsanwaltsordnung", BRAO) Rechtsdienstleistungsgesetz (RDG.) vom 12.12.2007

Under what title do lawyers practise?

Rechtsanwalt.

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

Admission to the Bar without annual renewal, but with ongoing supervision of lawyers, is conducted by 27 regional bars and the bar at the Federal Supreme Court of Justice. In order to become a lawyer in Germany an individual must have completed around nine semesters of university education in Law or related subjects, leading to the first state exam (“Erstes Staatsexamen”) which is administered by the Ministry of Justice. This is followed by a two-year period of legal clerkship (“Referendarzeit”), followed by the second state exam (“Zweiten Staatsexamen”).

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

Every lawyer becomes a member of his Bar (“Rechtsanwaltskammer”) by act of law when he is accredited as a lawyer. In the Federal Republic of Germany there are 28 such lawyer chambers. The Federal Bar is a statutory body for self-administration of the legal profession and as such guarantees the independence of the legal profession and protects it from the influence of the state and at the same time accentuates the status of the lawyer as an independent organ of justice. Lawyers are obliged to be members of their local Bar. The Federal Bar (“Bundesrechtsanwaltskammer – BRAK) safeguards, advances and represents the interests of its members. The local Bars accredit new lawyers, deal with misconduct and other professional issues.

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

German Rechtsanwälte have exclusive rights to represent clients in German Courts and provide all purpose general legal advice. These rights are shared with various other legal professionals in relation to specific areas such as tax, pension advice, insurance, claims collection, patent matters and certain areas of legal aid.  Bankruptcy administration is an unreserved activity.

German nationality is not required for the practice of law.

Lawyers are permitted to practise as sole practitioners, in partnerships and in corporate bodies. In the case of sole practice or partnerships (general or limited) no additional licensing is required. In the case of corporate entities, separate registration is required with the court register and law firms taking these forms must include the term “Rechtsanwaltsgesellschaft“(law firm) in their name.  The treatment of foreign companies raises still some legal uncertainty and should be discussed in individual cases with the relevant local Bar and Court.

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

Lawyers are subject to the statutory provisions of the German Federal Lawyers' Act (Bundesrechtsanwaltsordnung) and to the Lawyers Professional Code of Conduct (Berufsordnung der Rechtsanwälte).

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

Law firms, apart from those taking corporate forms, do not require separate licences to practise but lawyers must obtain prior authorisation in order to be able to practise in certain forms.

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

Authorisation to practise is given by the 27 regional bars (RAK) or the Bundesgerichtshof (BGH - Supreme Court Bar). Individual regional bars can be accessed via www.brak.de/die-brak/regionale-kammern/. Authorisation is required both for individuals and for corporate forms of law firm.

Is the jurisdiction a member of the WTO?

Germany joined the WTO on 1 January 1995

Has it made any commitments under GATS in legal services?

Germany has signed up to a GATS commitment of modes 1-3 in home country and public international law (excluding EU law). It has also made commitments in mode 4 to allow temporary presence for those holding a university degree and professional qualifications and three years' professional experience in the sector although this access does not cover activities reserved to Rechtsanwalt.

Is the jurisdiction party to bilateral agreements which offer special treatment to businesses or individuals from particular countries?

As a member of the European Union, Germany extends special treatment to individuals and businesses from other EEA states (EU plus Norway, Iceland and Liechtenstein. As a member of the EU, Germany is also party to the EU's many bilateral agreements with other countries and free trade areas ( a full list of these can be found at http://www.wto.org/english/tratop_e/region_e/rta_participation_map_e.htm?country_selected=none&sense=s )

The EU has comprehensive provisions covering the free movement of lawyers from EEA countries (EU plus Norway, Iceland and Liechtenstein) and Switzerland. These include the Establishment Directive for Lawyers (98/5/EC), the Lawyers' Services Directive (77/249/EC), the Framework Services Directive (2006/123/EC) and the Professional Qualifications Directive (2005/36/EC). Collectively these directives permit EEA lawyers to provide services freely cross border within the EEA, to establish and provide legal services in host as well as home country and international law and to requalify as a host country lawyer. There are limitations on the applicability of the Establishment Directive to EEA and Swiss lawyers holding specific legal titles and EEA (or Swiss) nationality. Provisions covering trade in services are included in the EU's Free Trade Agreements (FTAs) with South Africa, Mexico, Chile, Colombia, Peru, Central America and Korea. Of these, only the agreement with Korea contains newly liberalizing measures on legal services on the Korean side, and on the EU side offers no concessions beyond those offered to other members of the WTO. Legal services have also been included in the EU’s recent agreement with Canada and bind previous autonomous liberalization. The other agreements simply contain a commitment from both sides to 'progressive liberalization' of trade in services. Negotiations for future FTAs which might include provisions on legal services are ongoing with: Mercosur, Gulf Cooperation Council, India, Japan, Morocco, Ukraine, Moldova, Georgia, Armenia, Singapore, Malaysia, the US and Vietnam.

Are foreign lawyers from different jurisdictions treated differently as a result of any such agreements?

Lawyers from within the EU, EFTA and Switzerland are covered by the various EU directives covering legal services (The Lawyers' Establishment Directive 98/5/EC, the Lawyers Services Directive 77/249/EC). The result of these directives is that any EU, EFTA or Swiss lawyer can provide legal assistance in German as well as foreign and international law and under certain conditions can requalify as a German Rechtsanwalt.  Foreign lawyers who are from countries that are WTO members may practise international and their home country law (see BRAO § 206)

There are around 50-60 foreign law firms in Germany including US, UK, Canadian, Dutch and Chinese firms.  

The provision of temporary services in Germany by a lawyer from a non-EU Member State under his/her home title is not permitted. EU lawyers may practise temporarily as a result of the Lawyers Services Directive (77/249/EEC). 

Germany 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.

A foreign lawyer from a state which is a signatory to the GATS agreement may establish in Germany under his home title and can practise home country law and international public law provided that the foreign lawyer exercises a profession in his home country which in education, competencies and legal position is comparable to the position of a Rechtsanwalt in Germany. The Federal Ministry of Justice determines which legal professions which are acceptable. Licences for foreign lawyers are granted by local bars.

There are no nationality, residency or reciprocity requirements imposed on a foreign lawyer once he/she has registered with his/her local bar as a foreign lawyer under the Regulation on the Implementation of § 206 BRAO for lawyers from non-European countries.  The activities of European lawyers in Germany are governed by a separate regulation (EuRAG).

The granting of a limited licence to a foreign lawyer requires membership of the local Bar.

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?

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

Yes - although foreign law firms must be authorised by the relevant local Bar Association in accordance with the provisions of the "Federal Lawyers Act".

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)

Not applicable

No

No

Not in the permitted forms.

Yes

Under BRAO § 59a, Rechtsanwälte may also enter into any form of professional association with members of the legal professions from Member States of the EEA and parties to the WTO.

Yes

Other useful sources or comments or links

German Federal Bar Association: www.brak.de; German Bar Association: http://www.anwaltverein.de/