Courts, judges and lawyers across Europe

A party wishing to bring a civil claim in another country mustunderstand the legal and judicial system in that jurisdiction. Itis too easy for a litigant to assume that the system elsewherewill be the same as in his own country. In fact, legal systemshave been shaped by different legal traditions, and a litigantshould address the following questions:

This article examines these issues in relation to the nineEuropean jurisdictions previously covered in the Litigation 2000series. An earlier article looked at the courts which a litigantwould use to bring a commercial claim, as well as the levels ofappeal available (see www.plcinfo.com "Litigating acrossEurope", EC, 1999IV (3), 41). This article considers the civil courtssystem in more detail, as well as providing an overview on thejudiciary and the legal profession in the countries covered.

The system of civil and commercial courts is fairly complex,but in summary is as follows:

Justice of the Peace. A Justice of the Peacewill have:

Court of First Instance. The Court of FirstInstance has a civil section, known as the Civil Court(Tribunal Civil / Burgerlijke Rechtbank), a criminalsection (Tribunal Correctionnel / CorrectioneleRechtbank) and a juvenile section (Tribunal deJeunesse/Jeugdrecht-bank). Each of the 27 judicial districtsin the country has a Court of First Instance.

The Civil Court has:

The President of the Court of First Instance has jurisdictionin summary proceedings (see www.plcinfo.com "Litigatingacross Europe", EC, 1999 IV (3), 41).

Commercial Court. The Commercial Court hasjurisdiction over the following claims:

Also, the President of the Commercial Court has jurisdictionin summary proceedings and in cases of unfair trade practices(see www.plcinfo.com "Litigating across Europe", EC, 1999 IV (3),41).

Labour courts. Special labour courts dealwith all labour related disputes. The President of each court isa professional judge, and is assisted by two lay judges:

All judges are appointed for life by the King, who has tochoose among the candidates proposed by the Court of Appeal, theProvincial Council, the Cour de Cassation/Hof vanCassatie or the Senate, depending on the level of theproposed appointment.

Qualification. Judges in the Court of Appealmust be at least 35 years old and those in the Cour deCassation/Hof van Cassatie at least 40. All must have passeda professional competence exam or undergone special judicialtraining. The majority of judges of the lower courts arerecruited from among practising lawyers. Candidates for the Courtof Appeal are usually judges of the lower courts with severalyears of experience. Recent years have seen a tremendous increasein the number of female judges in the profession.

All judges are appointed to practise until retirement age.They can only be dismissed for serious misconduct, followingdisciplinary proceedings before the Cour de Cassation/Hof vanCassatie.

Some lay judges sit in the Commercial Court and in the LabourCourt.

Jury trial. Civil actions are never tried bya jury.

In Belgium, attorneys at law (avocats / advocaats)provide legal advice to clients and conduct litigation on behalfof their clients before the courts.

Attorneys at law practise either as sole practitioners or in apartnership. Attorneys remain personally liable to their clientsfor any professional negligence.

Qualification. To qualify and practise as anattorney at law, a lawyer must:

For at least three years, the attorney is a trainee(stagiair/stagiaire), and is trained during this time byan established attorney at law. This is known as doing a stage. A trainee can use the title of avocat/advocaat, and plead before any Belgian court, exceptthe Cour de Cassation/Hof van Cassatie. At the end ofhis training, a trainee may be admitted to a local bar and hisname added to the role of the Bar Association(tableau).

Rights of audience. Belgian attorneys at lawhave rights of audience before all courts, and are not attachedto a particular court. However, rights of audience in civil casesbefore the Cour de Cassation/Hof van Cassatie arelimited to a group of 16 attorneys at law specially appointed bythe Crown.

Fees. The Belgian Judicial Code contains tworules governing fees:

In practice, fees are calculated in the light of theimportance of the case, the skills and experience of the attorneyat law, the work involved, the client's financial situation andthe outcome of the case. In the largest law firms, attorneys atlaw usually charge on an hourly basis and bill their clientsevery other month or quarterly. Hourly rates vary with the typeof firm and the seniority of the attorney at law concerned.Larger law firms may charge hourly rates ranging from aroundBEF3,631 (EUR90) to BEF12,707 (EUR315) per hour.

EU lawyers. Lawyers qualified and entitled topractise in other EU countries in a profession equivalent to thatof attorney at law may:

Notaries are public officials, appointed by Royal Decree, withthe exclusive right to draft certain documents (known asauthentic deeds), and to certify as true the signatures of theparties to a contract.

Services. The services of a notary are neededfor:

Notaries also often provide the following services:

They also collect registration taxes that are due ontransactions effected by deed, such as on the transfer of realestate.

Notaries are not entitled to argue cases in court.

Qualification. In addition to their generallaw degree, notaries must:

The number of notaries is set by Royal Decree.

While there was quite an overhaul of the Czech judicial systemshortly after the 1989 Velvet Revolution, there is still a longway to go before the system is fully up to EU standards:

Other trends in the legal profession in recent years includethe following:

The court system consists of district courts (Okresnisoud), regional courts (Krajsk´´ soud),high courts (Vrchni soud) and the Supreme Court (Njevy¼¼í soud) (see www.plcinfo.com "Litigatingacross Europe", EC, 1999 IV (3), 41). A Supreme Administrative Court(Nejvy¼¼í správní soud) willalso be set up, although this has not yet taken place. It will beresponsible for reviewing administrative decisions.

The Constitutional Court (Ústavni soud) enjoysspecial autonomy and is not subject to the jurisdiction of asuperior court. It is the only court that deals withconstitutional matters.

District and regional courts. The districtcourts are the courts of first instance. The regional courts hearappeals from the district courts. In some circumstances, however,(set out in the Czech Code of Civil Procedure), the regionalcourt may serve as the court of first instance. This is the casefor most commercial disputes, in particular if the defendant isregistered with the Commercial Register of the Czech Republic.These cases can be dealt with either by:

High courts. There are two high courts, onein Prague and one in Olomouc. They serve as appellate courts forcases dealt with by regional courts at the first instancestage.

Supreme Court. The seat of the Supreme Courtis in Brno. The court:

Appeals are normally dealt with on the basis of writtendocumentation alone, but exceptionally the court grants theparties an oral hearing.

Constitutional Court. The ConstitutionalCourt also has its seat in Brno. One of the more importantfunctions of the court is the power to cancel a statute, or someof its provisions, if they contravene constitutional law or aninternational convention which is binding on the CzechRepublic.

A party can only approach the Constitutional Court when it hasexhausted all other remedies. A judge can also stall theproceedings and refer a case to the Constitutional Court if heconsiders that the law contradicts the Constitution.

The Justice Ministry selects candidates for appointment asjudges. The appointment is made by the President of the Republicfor an indefinite period of time, except for judges of theConstitutional Court who are appointed for a period of tenyears.

Types of judge. While most judges areprofessional, there are also associate judges, who do not have tobe lawyers by background. An associate judge:

Composition of court. Court decisions aremade either by judges sitting alone or by panels of judges.Associate judges never judge a case alone and always sit as twomembers of a three-member panel.

The composition of the various courts is as follows:

Qualification. Any citizen of the CzechRepublic who is competent to perform legal tasks, whose characteris beyond reproach, is at least 25 years old, has completed alegal education, and has passed a specialised exam in judicialprocedure and law, can become a judge. The exam is taken afterthree years of practice with a court. It is usual for very younglawyers to begin this period of practice immediately aftercompleting their legal education. This is possible because Czechlaw does not require judges to have had a long period ofpreparation and because previously there was very little interestamong lawyers in becoming judges.

Consequently, in the past public confidence in the quality ofdecisions made by the courts has suffered. In response, over thelast few years, the Justice Ministry has made efforts to appointlawyers with prior experience.

The situation is therefore changing and the profession ofjudge has become highly sought after. There were recently 641applicants for 50 trainee-judge positions. It therefore seemslikely that in future the quality of the bench will improve.

Jury trial. Civil actions are not tried by ajury.

In the Czech Republic, legal services are provided byattorneys (advokát). Although the vast majorityoperate as independent practitioners, there has been anincreasing trend in recent years to form associations. The fivelargest associations of lawyers in the Czech Republic (includingthose that are solely Czech, as well as branches of internationalfirms) have an average of 25 attorneys, and the largest 20 havean average of 15 attorneys.

There are a total of 8,000 attorneys in the Czech Republic,out of a population of ten million.

Qualification. The conditions for becomingand acting as an attorney are as follows:

Rights of audience. There is no divisionbetween lawyers in terms of rights of audience. All attorneys areentitled to appear before any court. Although lawyers canpotentially provide a wide range of services, in practice most ofthem specialise in civil, criminal, or commercial law, or in aspecific area within one of those fields.

With the exception of appeal proceedings before the SupremeCourt, a party does not have to be legally represented in court,but usually is.

Fees. An attorney's fee for his services isgoverned either by:

If a party wins the case, it is entitled to have its costs,including attorney's fees, reimbursed by the losing side, butonly to the extent set by the decree on attorney fees (seewww.plcinfo.com "Litigating across Europe", EC, 1999 IV (3),41).

Foreign lawyers. Recent changes to theAdvocacy Act (Act no. 85/1996 Coll) require foreignlawyers to register with the Bar and to take a short exam, in alanguage of their choice, primarily on ethics. This has allowedthe Bar to maintain some control over foreign lawyers practisingin the Czech Republic. It has also allowed the lawyers toparticipate in Bar activities, although they are still restrictedto practising the law of their home jurisdiction andinternational law.

However, not all foreign lawyers practising in the CzechRepublic are members of the Bar, as some do not believe that theAdvocacy Act applies to them. Foreign lawyers in someinternational law firms believe that the provision by them oflegal services is governed by the laws of the jurisdiction wherethey are authorised to practise. According to this view, thegoverning law does not change when they provide those legalservices abroad. The opposite view is that foreign lawyers haveto obey the mandatory rules in the Czech Republic if they providelegal services there, even if they only practice the law of theirhome jurisdiction.

In contrast to attorneys, the number of notaries public islimited by the Chamber of Notaries Public. There are a total of437 notaries public in the Czech Republic.

Notaries public typically deal with probate (the distributionof estates) and prepare documents for the court concerningprobate. The importance of notaries has increased recently as aresult of an amendment to company law providing that the majorityof decisions made by companies must be in the form of a notarialdeed.

The English civil litigation system is undergoing enormouschange as a result of extensive reforms to the rules of civilprocedure (known as the Woolf reforms) introduced in April ofthis year (see www.plcinfo.com "Litigating across Europe", EC, 1999, IV (3),41 and "Commercial disputes: The practical impact of theWoolf reforms", PLC, 1999, X(1), 31). The reforms have also made aconsiderable impact on the court system. The courts now adopt afar more active role in managing cases and, for example, maintaincase files. As part of that, a major computerisation project isunderway, but its effects will not be seen until 2000.

In addition, the roles of lawyers in the system have changedradically over the last twenty years. The pace of that changeaccelerated in the 1990s, with the abolition of the barristers'monopoly on advocacy rights in the High Court.

In principle, smaller commercial cases are dealt with by alower tier of courts, organised on a geographical basis, calledcounty courts, while larger ones are dealt with by the HighCourt, largely in London but also through District Registries inother major centres.

Previously there was a clear separation between county courtsand the High Court, with different grades of judges and differentrules and procedures. Under the Woolf reforms, the same rules nowapply to both, and outside London the two courts will operate asone until the trial stage. Within London, the distinction remainsgreater, with cases run separately throughout.

County court. At present the dividing line isthat claims for under £15,000 (EUR22,956) should be issuedin the county court, while claims above that go to the HighCourt. The figure of £15,000 (EUR22,956) is likely to beraised to £50,000 (EUR76,519) after a transitionalperiod.

High Court. The High Court is divided intothree divisions, corresponding to the type of work dealt with.These are the Chancery Division, the Family Division and theQueens Bench Division. Of these:

There are specialist courts within the Chancery Division forthe last two of these.

All commercial cases in the High Court are heard by a singlejudge.

Court of Appeal and House of Lords. Appealsfrom both the High Court and county courts lie to the Court ofAppeal, and then to the House of Lords (see www.plcinfo.com"Litigating Across Europe", EC, 1999, IV (3),41). The Court of Appeal usually sits in panels of threejudges, and the House of Lords in panels of five.

Judges' background and training means that they areintelligent, independent, experienced in complex legal issues andable to deal with advocates on equal terms. On the other hand,they are not young, and their make-up and attitudes tend toreflect the conservative, white- and male-dominated professionfrom which they are chosen.

Qualifications. All the judges in the courtsmentioned above are professional lawyers: there is, for example,no use of businessmen in the Commercial Court. Nor are the judgescareer judges: all have been practising advocates for at leastten years. Judges are selected on a non-political basis by theLord Chancellor, after consultation with existing judges.

Jury trial. Civil actions are not tried by ajury. The main exceptions are defamation and some fraudactions.

To lawyers in other European countries, one of the moststriking characteristics of the English litigation system hasalways been the split between barristers and solicitors.

Solicitors. Solicitors practise inpartnerships. The major international firms are very large. Inthose firms, most litigation is conducted by specialistlitigators, with assistance when necessary from othernon-contentious parts of the firm.

Thirty years ago few solicitors, in London at least,specialised in contentious work at all. When litigation arose,the commercial or corporate solicitor instructed a barrister toadvise on the case, to draft the pleadings and to present thecase before the court.

Over the past twenty years this has changed, with the adventof litigation solicitors who have taken an increasing role in theconduct of the litigation. Even so, until five years ago, it wasnormal for a litigation solicitor to have the day-to-day contactwith the client and gather evidence, but to instruct a barristerto draft the pleadings and to present the case before thecourt.

Barristers. Barristers are primarily trainedadvocates, practising as sole praticioners. Barristers still workindependently, although they share chambers and in practice thepromotion of an identity for the chambers is becoming almost asimportant as the marketing of the identity of a solicitor's firm.Senior advocates (the vast majority are still barristers) mayapply to become a Queen's Counsel (QC - a title conferred by theLord Chancellor on senior and respected advocates). It is stillusual for a QC, when appearing at court, to have a more juniorbarrister appear with him, to do research and preparation.

Oral evidence. It is the presentation ofcases at trial by specialist advocates, to judges from the samebackground, that has given rise to the distinctive features ofthose trials: a strong emphasis on oral argument and oralexamination of witnesses. Those skills were developed to thepoint where the rest of Europe could only look on in wonder atthe weeks or months of high-powered advocacy of which a majorEnglish civil trial consisted. This of course came with a costattached, which the Woolf reforms were intended to address (see FirstSource "Litigating across Europe", EC, 1999, IV (3),41). Together with earlier changes, the Woolf reformshave reduced the emphasis on oral hearings and the length oftrials.

Rights of audience. The other major attack onthe old system was the abolition of the barristers' monopoly onthe right to appear in trials in the High Court and the appealcourts. Since 1994 it has been possible for solicitors to appearin trials in the High Court, but only by obtaining an advocacycertificate. The qualifying requirements have been sufficientlyonerous to prevent no more than a few solicitors from obtainingthose certificates to date. But the tests are in the course ofbeing relaxed, and will be relaxed further pursuant to the Accessto Justice Bill which is due to be enacted this summer. Itremains to be seen whether (or possibly when) the point isreached at which all qualified solicitors will be able to appearin the High Court on qualification (as is the case withbarristers). In the meantime there is a perceptible increase inthe extent to which solicitors are drafting pleadings andappearing in court.

The current position. The result of all thischange has been the following:

No-one anticipates that the court reforms and the widening ofrights of audience will remove the demand for specialistfreelance advocates, who have the expertise that comes fromconstant appearance in court and the ability to concentrate onone trial for weeks on end. But it is inevitable that, even inthe major commercial cases, these attributes will become lessimportant. In smaller claims, the use of a separate advocate isalready hard to justify.

Consequently most commentators see the Bar shrinking over themedium term, though remaining as a pool of specialist advocateswhich will continue to be used in suitable cases. It is quitepossible that the two professions will merge, and that the Barwill consist of those who have decided to specialise in advocacyafter some years in general litigation work.

Fees. Solicitors charge for the conduct oflitigation on a time basis. Hourly rates vary with the type offirm and the seniority of the staff. In the large commercialfirms, hourly rates for partners may be £300 to £400(EUR449 to EUR598) per hour, ranging down to junior lawyers atapproximately £100 (EUR153) per hour.

Barristers also charge for drafting and advisory work on anhourly basis, at rates which at the top end are similar to orhigher than partners' rates in solicitors' firms, but are oftenlower than solicitors' rates among more junior barristers.Barristers charge for appearances in court through a brief fee,which covers preparation for, and the first day of, the hearing,and a daily fee covering subsequent days. Brief fees for the mostpopular barristers are very high. Again, those for juniorbarristers are relatively good value.

Solicitors and barristers are now allowed to take on cases onthe basis that, if they win, they receive an uplift of up to 100%on their usual fees but, if they lose, they receive nothing. Thishas been introduced only recently for commercial cases and itremains to be seen how attractive it will prove to either clientsor lawyers.

EU lawyers. At present a lawyer from anotherEU state wishing to practise English law must qualify as anEnglish lawyer:

There are very few notaries public in England, and most arealso practising solicitors. The few specialist notaries practisein London, where they deal mainly with the preparation ofdocuments for use in foreign courts.

One of the important features of the French court system,which distinguishes it from some other jurisdictions, is thedivision of the civil and administrative courts. This distinctionhas its origins in the French Revolution. The perceived abuse ofjudicial power under the Ancien Régime generated acertain distrust of judges, who were thought to have interferedin the affairs of the government of the country. Accordingly,since 1790, French civil and criminal judges have been prohibitedfrom ruling on acts of the administration. Only the specialisedadministrative courts have jurisdiction to rule on claims againstthe State or a State agency.

The difficulties in certain instances of determining whether amatter comes within the jurisdiction of the civil or theadministrative courts, has necessitated the creation of a courtwhich decides such jurisdictional disputes, called the Tribunal des conflits.

The civil and criminal courts are divided into two levels:courts of first instance and the appellate courts. These courtsare subject to the supervision of the Cour de Cassation,which exercises control over the law applied by the lowercourts.

Tribunal d'Instance. A Tribunald'Instance exists in each district to handle certain typesof civil claims involving monetary amounts of up to FF50,000(EUR7,622). This court (sitting as the Tribunal dePolice) may also try certain misdemeanours. The tribunalconsists of a single judge and his decision will be final andbinding in civil cases involving sums less than or equal toFF25,000 (EUR3,811).

Tribunal de Grande Instance. Thereis at least one Tribunal de Grande Instance in eachFrench Department (département), which hears bothcivil and criminal cases (the criminal division is the Tribunal Correctionnel). Civil cases are usually heard bythree judges, although recent legislation has expanded the use ofhearings by a single judge, in the interests of reducing triallists.

Tribunal de Commerce. The Tribunaux de Commerce were an invention of the AncienRégime based on the principle that businessmen shouldbe judged by their peers. Unlike the judges of the other civilcourts in France, the judges are non-professionals, who areelected by their peers in accordance with a two tier votingsystem (at the first level, déléguésconsulaires are elected, who in turn elect the judges).There is a Tribunal de Commerce in most districts, butwhere there is none, commercial matters will be heard by the Tribunal de Grande Instance.

The Tribunaux de Commerce have jurisdiction to heardisputes between business persons (commerçants) andthose involving commercial matters (actes de commerce)(see www.plcinfo.com "Litigating across Europe", EC, 1999, IV (3),41). The judges sit in panels of three, although inpractice a single judge (juge rapporteur) will generallyreview the parties' pleadings, hear their oral arguments andwrite the judgment on behalf of the tribunal.

Conseil des Prud'hommes. The Conseil des Prud'hommes is a specialised labour court,composed of five divisions that cover different professionalactivities. The judges of the Conseil des Prud' hommesconsist of an equal number of employers and employees, who areelected by their peers. The first step in the Prud'hommes process consists of conciliation before oneemployer and one employee, who will seek to guide the parties toa resolution of the dispute. It is only if this process failsthat the matter will go before the court for judgment. Casesbefore the Prud' hommes are generally heard by fourjudges, two employers and two employees. In the case of adeadlock, a judge of the Tribunal d'Instance will becalled upon to cast the deciding vote.

Cour d' appel. There are currentlyapproximately 30 courts of appeal (Cours d'Appel) inFrance with jurisdiction to hear appeals against decisions fromeach of the general and specialised civil and criminal courts. Inlarger centres, the courts of appeal will be divided into severalchambers, at least one of which will specialise in labour lawmatters. The courts of appeal sit in panels of at least threejudges and, in certain circumstances, will sit in panels of five(for example where a judgment has been set aside by the Courde Cassation and is sent back to the Cour d'Appelfor a new decision). The courts of appeal have jurisdiction tomake findings of fact and an appeal usually results in a fullrehearing of the case.

Cour de Cassation. Located in Paris,the Cour de Cassation is the highest court in France. Itis composed of five civil chambers and one criminal chamber.Depending on the importance of the case, the Cour deCassation sits in panels of three to seven judges.

Unlike the courts of appeal, the Cour de Cassationcannot rule on questions of fact; it only decides questions oflaw. In most cases, if a judgment is set aside by the Cour deCassation, the court will refer the matter to a Courd'Appel (other than the one which rendered the relevantjudgment) for a new hearing (this is called a renvoi).The Cour de Cassation may, however, substitute its owndecision for that of a court of appeal if findings of fact arenot required.

The Administrative Courts. There are threelevels of administrative courts: the TribunauxAdministratifs, the Cours Administratifs d'Appeland the Conseil d'Etat. The Conseil d'Etathears appeals from the lower levels of the administrative courts,but in some cases will itself be a court of first and lastinstance.

Subject to certain exceptions (see above "Tribunaux deCommerce"and "Conseil des Prud'hommes"), judges inthe French system are generally professional judges and publicservants.

Qualification. Judges are graduates of theEcole Nationale de la Magistrature, where their traininglasts 31 months, with four years of university study and goodresults on the entrance examination as a prerequisite. Ongraduating, a judge's appointment will be based on his standingin the class. Graduates of the Ecole Nationale de laMagistrature will work either as magistrats dusiège (judging cases) or as magistrats duparquet (representing the public interest, where relevant,in cases before the courts).

Judges in the administrative courts are civil servants and areselected from the graduates of the Ecole Nationale del'Administration. The higher ranking graduates are appointedto the Conseil d'Etat. The entrance examination for theEcole Nationale de l'Administration has the reputationof being very difficult. Consequently entry into this school hasconsiderable prestige attached to it.

Jury trial. Civil actions are not tried by ajury.

The legal profession in France underwent a very significantreform in 1990 (which was implemented by 1992). Legislation fusedtwo profession into one:

Members of the new fused profession hold the title of avocat. They comprise the main category of persons entitledto practise law in France. The practice of law is defined bystatute as giving legal advice or drafting legal documents (otherthan notarial deeds), for third parties on a regular basis. Thelegislation does not distinguish between advice relating toFrench law and that relating to other systems of law.

Consequently, a lawyer qualified to practise law in a countryother than France, who wishes to practise from within France,must become a member of a French bar. This principle applies evenwhere the lawyer does not intend to give advice on Frenchlaw.

However, a lawyer qualified in a country other than France maypractice in France in the context of a stage under thesupervision of a French avocat. Such stageslast one year and may be renewed twice (in other words, thelawyer may spend a total of three years practising in France as astagiare).

French avocats tend to practice in much smallerpartnership structures than their counterparts in countries suchas the UK, although this is changing. In recent years, there havebeen an increasing number of mergers between French firms, aswell as efforts to form alliances with firms in otherjurisdictions (see www.plcinfo.com "How to succeed in theEuropean mating dance", EC, 1999,IV(3),28)).

Rights of audience. Rights of audience beforethe Tribunaux de Grande Instance and the Coursd'Appel are restricted to avocats. This monopolydoes not, however, extend to some of the courts of firstinstance, where it is not mandatory to have legal representation.In the case of the Cour de Cassation and Conseild'Etat, the advocate (avocat au conseil) must beattached to the relevant court.

Qualification. To become an avocat,candidates must have completed a masters' degree in law(maîtrise) and have passed the entrance exam of theEcole de Formation du Barreau. This examination isfollowed by a year of course work at the bar school and then twoyears of training as an avocat-stagiaire.

The profession of avocat is self-regulated by localbar counsels, with each avocat having to become a memberof the local bar. Members of each bar elect a bar council(Conseil de l'Ordre), which is presided over by achairman called the bâtonnier. The Conseil del'Ordre has disciplinary powers with respect to members ofthe relevant bar.

Fees. Avocats charge by the hour andthe scale of fees varies enormously depending on the profile ofthe firm and the type of work involved. Fees might range betweenFF1,500 (EUR229) to FF3,500 (EUR534) for a very senior lawyer andbetween FF600 (EUR91) to FF1,200 (EUR183) for a juniorlawyer.

EU lawyers. At present, a lawyer qualified inanother EU state who wishes to practice law in France must applyto the Conseil national des barreaux (CNB), givingdetails of his education and professional experience, as well asproof that he is a member of the bar of an EU member state. TheCNB will decide whether it considers the applicant eligible topractise in France. If it does, the applicant must sit anaptitude test prepared by the Ecole de formation dubarreau, the contents of which will be based on the CNB'sassessment of the applicant. At the very least, every applicantwill have to sit an examination in professional conduct.

After 14th March, 2000, the system will change in light of theLawyers Establishment Directive (see box "Lawyers within theEU"). An EU-qualified lawyer wishing to practice in Francewill simply have to register with a French bar. It is not yetclear whether the requirement of an aptitude test will beabolished altogether, or whether the level of difficulty willsimply be reduced. There may still be restrictions on the rightto appear in court without a French-qualified lawyer. After threeyears of regular practice in France, the lawyer will be entitledto be registered as an avocat without furtherformalities.

The profession of notary remains separate from the professionof avocat. Notaries are public officers. In addition toproviding legal advice to their clients, they are the onlypersons entitled to prepare notarial deeds, such as deeds ofsale, any deed creating or transferring rights in real property,or any deed relating to personal matters such as marriagecontracts or probate.

To qualify as a notary, a candidate must possess a masters'degree in law and then complete a one year diploma in notariallaw (Diplóme d'études supérieuresspécialisées or a DESS), plus two years ofprofessional training. On completion of this training, a furthertwo years training (stage) is required.

Civil litigation is governed by what is known as the principleof locality (Lokalitätsprinzip) which only allowsadvocates to represent cases within the court district where theyare registered (see below "Rights of audience"). Withimprovements in communication and modern means of travel, thisprinciple will be abolished in the lower courts of former WestGermany at the beginning of the year 2000, enabling advocates torepresent civil law cases in more than one Regional Court.

The court system for commercial cases is made up of threelevels for cases with a value of more than DEM10,000(EUR5,130):

Local Courts (Amtsgericht) deal with cases below thisamount (see www.plcinfo.com "Litigating across Europe", EC, 1999, IV (3),41).

Judgments of the Federal Court of Justice can be overturned bythe Federal Constitutional Court(Bundesverfassungsgericht) on application by the losingparty. An application is limited to a violation of the Germanconstitution and the fundamental rights contained in it.

Regional Courts and the Higher RegionalCourts. The Regional Courts and the Higher RegionalCourts usually have specialised chambers that only deal withcases involving a specific field of law, such as constructionlaw. Also, every Regional Court has a commercial division thatdeals with cases involving business people (seewww.plcinfo.com "Litigating across Europe", EC, 1999, IV (3),41).

The Federal Court of Justice. The FederalCourt of Justice has strict internal divisions each of which isresponsible for considering cases that involve its particulararea of law. The aim is to achieve a high standard ofspecialisation within the court and uniformity ofjurisdiction.

Labour Law Courts. Separate Labour Law Courtsdeal with labour law issues. These courts also consist of threelevels:

Specialised courts. There are alsospecialised criminal, financial, administrative and socialcourts.

All judges are professional judges (the only exception beinglay judges in first instance commercial divisions). Judges areusually career judges and it is rare for advocates to changecareer and become judges.

In order to progress within the German judicial system, ajudge will not usually remain a judge throughout his wholecareer:

Because many young lawyers apply to become judges, in someGerman federal states a lawyer may have to work for several yearsas a prosecutor/state attorney before being given the opportunityto become a judge. As there are at present far more applicationsto become a judge than there are positions, young judges usuallyhave outstanding examination results.

Jury trial. Jury trial does not exist.

The aim of German legal education is to produce a lawyer whois in theory able to work in every field of the law and in everylegal profession, such as justice, advocacy, administration andeconomy. This is known as the "universal lawyer."

Qualification. The training needed to becomea qualified lawyer consists of two stages:

During the training period there is little room forspecialisation, so a lawyer will begin to specialise only when hestarts work. Due to the long and extensive legal training, theaverage German lawyer will usually be 28 to 30 years of age whenhe starts work as a qualified lawyer (male lawyers will usuallyhave spent one year doing national service).

Rights of audience. To date, the principle oflocality (Lokalitätsprinzip) (see above)has meant that advocates have had to register and set up theiroffice within one specific Court District, as follows:

While this principle may appear to limit the scope of alawyer's litigation activity, its effects have been greatlymitigated as follows:

The principle of locality will be:

Fees. Historically, German legal fees weredetermined on a statutory basis (see www.plcinfo.com"Litigating across Europe", EC, 1999, IV (3),41). Recently, however, there has been a tendencytowards the use of hourly rates which are agreed between a clientand his advocate, particularly in complex commercial matters.Market rates range from approximately DEM300 (EUR155) per hourfor junior lawyers to approximately DEM900 (EUR460) for seniorlawyers.

EU lawyers. German legislation concerningqualified lawyers from other EU-jurisdictions is based onEuropean legislation. Currently a qualified lawyer from an EUmember state has to pass an aptitude test in order to be allowedto practice as an advocate in Germany. The aptitude test consistsof a written and an oral test, containing the basics of civil lawand civil procedure. In addition, the candidate must choose onefurther area on which to be tested from a list of options.

Notaries public must be used for transactions and contractsthat are considered of particular importance, such as thetransfer of real property, notarisation of shareholders'agreements and notarisation of signatures.

In some federal states notaries public are not allowed to workas advocates, whereas in other federal states lawyers are allowedto be both notaries public and advocates.

Advocates are eligible to become notaries public after:

The number of notaries in each federal state is limited. As aresult, not every advocate who has the necessary qualificationswill actually be registered as a notary.

The Dutch court system has civil and administrative courts.The administrative courts essentially have jurisdiction to ruleon appeals against decisions made by the state, state agencies orother governmental institutions.

The Dutch court system for civil and commercial cases isfairly straightforward.

Magistrates courts. Magistrates courts (orcantonal courts/kantongerechten) deal with:

There are 62 magistrates courts. Cases are decided by onejudge. The court has jurisdiction in summary proceedings if themain proceedings fall within its jurisdiction.

District courts. District courts(rechtbanken) deal with:

Cases are generally heard by three judges. One judge maydecide claims where smaller amounts are in dispute. There are 19district courts and they are divided into civil, administrativeand penal sections. The President of the district court hasjurisdiction in summary proceedings (see www.plc info.com"Litigating across Europe", EC, 1999, IV (3),41).

Courts of appeal. The Court of Appeal (Gerechtshof) hears :

There are five courts of appeal and decisions are taken bythree judges.

Supreme Court. The Supreme Court (HogeRaad der Nederlanden) is a cassation court,comparable to those in Belgium and France. When all possibilitiesof appeal have been exhausted, the appellate decision can bereviewed by the Supreme Court, which is situated in The Hague(see www.plc info.com "Litigating across Europe", EC, 1999, IV (3),41). Cases are tried by either three or five judges,depending on the difficulty of the case.

Precedents of the Supreme Court have no binding force, butlower courts do generally follow them.

A person who wishes to become a judge and who has taken adegree in Dutch law may apply for a position as a candidatejudicial officer (rechtelijk ambetenaar inopleiding).

Appointment. A group of well respectedlawyers from both inside and outside the judiciary selects theappropriate candidates, who are generally between 25 and 30 yearsold. Judges are appointed by royal decree. According to the Dutchconstitution, the appointment is for life, except that judgeshave to retire at 70. Judges can only be dismissed if they areguilty of serious misconduct.

Training. During a training period of sixyears the candidate judicial officer is employed at court, at theoffice of the public prosecutor and at the bar in order toacquire practical experience. After training, the candidate iseligible to be appointed judge or public prosecutor.Approximately half of the judiciary follows this route.

Direct appointments. The other half of thejudiciary is directly appointed without needing to carry out asix year training period. Again, a group of well respected Dutchlawyers selects those direct appointees. The direct appointmentscan only be made if the candidate has acquired sufficientexperience in legal matters outside the judiciary.

Many civil cases are decided by a chamber consisting of onesubstitute-judge. Many legal experts, either from universities orlaw firms, occasionally act as substitute-judges. The Dutch civilcourts have now become dependent on substitute-judges.

Jury trial. Jury trial does not exist.

Advocates (advocaten) litigate before the courts andadvise their clients. However, they have no monopoly on theprovision of legal advice. Individuals can work as legal adviserswithout having any academic degree or other qualification (see below "Rights of audience").

Qualification. In order to be able to use thetitle of advocate the following requirements have to be met:

Since 1997 an advocate no longer has to practise in a lawfirm. Under certain strict conditions (guaranteeing theindependence of the advocate from his client) an establishedadvocate can be employed by a regular commercial company.However, it is still usual for an advocate to work in or for alaw firm or as a sole practitioner.

During the first three years of practising, the advocate isregistered with the Bar as a trainee. A trainee has to practiselaw under the supervision of an established advocate and to passbar exams. The Bar acts as a professional disciplinaryinstitution.

Rights of audience. Legal advisers have thefollowing rights of audience:

Lawyers of record. Every advocate is also alawyer of record (procureur). The role of a procureur is to sign documents in civil cases and deal withformal aspects of civil proceedings (see www.plcinfo.com"Litigating across Europe", EC, 1999, IV (3),41). The qualifications required to become a procureur are the same as for an advocate.

A procureur is always attached to, although notemployed by, a district court and can only act as such withinthat district. An advocate can also act as a procureurin other district courts, but if he does so, a local procureur must:

EU lawyers. The rights for EU lawyers topractise and to appear in court are those set out in the relevantEU directives (see box "Lawyers within the EU").

Fees. The national Bar has issued guidelineson the fees advocates may charge. The fee cannot be based on theoutcome of the litigation (no-win no-fee and contingency fees arestrictly forbidden). Fees will typically be determined on thebasis of the amount of work involved, the experience of theadvocate and the degree of specialisation required. Through thesevarious elements an hourly fee will be established and can beanywhere between NLG167 (EUR76) and NLG842 (EUR382) per hour.

Notaries are public officials appointed by royal decree. Theyhave exclusive rights to draft and authenticate certain documentssuch as wills, marriage contracts, deeds concerning the transferand mortgaging of real estate and the establishment of corporatestatus.

A notary is appointed for life. The number of positionsavailable for notaries is limited to approximately one thousand,and a candidate may have to wait many years before beingappointed. A person who wishes to be eligible for appointmentmust have obtained a notarial doctorate and acquired at leastthree years' training as a candidate notary in the office of anotary.

The state of the legal system is closely linked to theeconomic and political transformation that Poland has beenexperiencing since 1989. Substantial reforms to civil proceedingstook place in 1996.

A major issue is the extent to which the legal system is ableto bring about swift and effective justice. This is largelyinfluenced by the prevailing economic conditions in Poland. Forexample, the speed of proceedings is determined in large measureby the allocation of resources to the administration of justiceby the state. Financing the efficient operation of the judicialsystem out of the state budget is an on-going problem.

The influence of governing and administrative bodies on thejudicial process (an issue which is relevant to the countries ofthe former eastern bloc) is negligible.

Justice in Poland is administered by the common plea courts(s?dy powszechne), which consist of county courts(s?dy rejonowy), district courts (s?dyokregowy) and courts of appeal (s?dyapelacyjne).

In addition, there are courts with special jurisdiction(s?dy szczególne):

First instance courts. Generally, all civillaw cases are adjudicated by the county courts, except for:

Commercial courts. Commercial courts(s?dy gospodarcze), falling within the ambit ofdistrict and county courts, are located in provincial capitals.These are separate units set up to handle commercial cases andtheir functions include the following:

The Supreme Court. The Supreme Court governsthe activities of all other courts, in addition to ruling onappeals (known as cassation) (see www.plcinfo. com"Litigating across Europe" EC, 1999, IV (3),41). The Supreme Court is divided into four divisions,each dealing with a different area of law. The Civil Divisiondeals with civil and commercial issues.

In the exercise of its office, the judiciary is completelyindependent, subordinate only to the law, and individual judgesmay not be dismissed from their posts.

Qualification. In order to become ajudge:

As a rule, judges retire at the age of 65.

A judge can only be appointed to the Supreme Court after aminimum of ten years as a judge and to the courts of appeal aftera minimum of five years.

Composition of court. In principle, civil lawcases are adjudicated by a single professional judge at the firstinstance stage, and by three professional judges in the secondinstance. County court cases, and criminal cases heard by thedistrict courts located in provincial capitals are heard with theparticipation of lay judges who are non-lawyers(lawnicy). Some first instance cases (relating to labourlaw, social welfare protection, and family law, except thoseconcerning child support) also involve the use of lay judges. Alay judge is elected by the commune council (rada gminy)located in the jurisdiction of the county court in question andcan be any person without professional legal training.

As a rule, a court composed of one judge and two lay judgesadjudicates in these cases. Although lay judges officially havethe same powers as judges, in practice the participation is amere formality and it is always the judge who has the final sayin the proceedings.

Jury trial. Polish civil procedure does notprovide for trial by jury.

The title of lawyer (prawnik) is obtained followingthe completion of a university degree in law conferring the titleof Master of Law. In order to work within the legal profession asa judge, public prosecutor, notary public, barrister or legaladviser, it is also necessary to serve a period of post-graduatepractical training in the relevant field of law.

Qualification. In order to be able to pleadin court it is necessary to complete a period of practicaltraining for barristers or legal advisers, organised by theappropriate institutions of the legal profession. This trainingconfers the title of barrister (adwokat) or legaladviser (radca prawny) (see below). These paidtraineeships last for three-and-a-half years and are concludedwith a rigorous examination. Those who have a foreign universitydegree in law, recognised in Poland, and a good command of thePolish language in speech and in writing may also be admitted totraining as barristers or legal advisers.

Barristers and legal advisers. Barristers andlegal advisers both provide legal advice and plead before courtsand government departments.

Until recently, barristers concerned themselves mostly withthe representation of natural persons, while legal advisersprovided legal services to commercial entities. Today there islittle difference between the two professions:

Legal advisers may perform work both on a contractual basis(such as a contract of mandate) and on the basis of an employmentcontract. However, in order to represent a natural person, alegal adviser must be practising exclusively through a law officeor a company, and cannot at the same time be employed by anothercompany.

In 1997, transitional regulations were introduced, allowinglegal advisers, who on 1st October, 1996 exercised theirprofession as employees of both a law office or a company, toadvise natural persons up until the 14th September, 2002, withoutthe need to resign from employment.

Fees. Barristers' and legal advisers' feesare established in contracts with their clients. Payment forappearances in court by barristers and legal advisers arestipulated in a Ministry of Justice regulation. These fees formthe legal basis for the courts' assessment of awards for legalcosts (see www.plc info.com "Litigating across Europe", EC, 1999, IV (3),41).

Foreign lawyers. Companies with foreignparticipation may be set up for the purpose of providing legaladvice in Poland, provided that:

In order for a foreign partner to practise in Poland, he mustshow that there is mutual recognition for Polish lawyers wishingto practise in his home country.

A notary public is qualified to do the following:

A notary is only allowed to run one office and his fees mustnot exceed the maximum rates specified in a Ministry of Justiceregulation (see above "Fees").

In Russia, the jurisdiction of a court will not only depend onthe nature of the dispute, but also, for example, on whether theparties are legal entities or individuals.

There are two types of court that deal with civil cases: statearbitration courts and general jurisdiction courts.

Arbitration courts. State arbitration courts(arbitration courts) should not be confused with arbitrationtribunals (see www.plc info.com "Arbitrating across Europe"EC, 1999, IV (5),45). Arbitration courts are state courts established toresolve economic disputes. The name derives from the fact thatthese courts were set up under the system of state arbitrationthat existed during the socialist period.

Generally, arbitration courts are not able to consider casesinvolving individuals not acting in a business capacity. However,insolvency cases in relation to both legal entities andindividuals come within the sole jurisdiction of the arbitrationcourts.

The system of arbitration courts consists of three levels:

General jurisdiction courts. Although thesystem of general jurisdiction courts also consists of threelevels, it is slightly different from that of the arbitrationcourts:

All these courts and their judges follow the federal laws. Inaddition, there are general jurisdiction judges who are appointedas such by the provinces of the Russian Federation. They aremagistrates who resolve:

Constitutional courts. Cases concerning thevalidity of laws, or statutory acts of the President of Russia,the government, or the Federal Assembly fall within thejurisdiction of the Constitutional Court of Russia.

Judges in Russia are typically middle-aged. Many of them arefemale, especially at the lower levels of court. The level ofqualification of judges will depend on the level and type ofcourt, as well as its location. For example:

Qualification. Only a citizen of goodcharacter with the following characteristics may become ajudge:

Appointment. Judges are appointed by thePresident of the Russian Federation. The judges of the HighArbitration Court of Russia and of the Supreme Court of Russiaare appointed by the upper chamber of the Federation Council ofthe Federal Assembly.

Composition of court. Cases at first instanceare heard by one judge only. In higher courts the cases are heardby a panel of three judges.

Jury trial. Jury trials are not used forcivil cases.

Lawyers. The only qualification required tobecome a lawyer is graduation from a legal high school oruniversity.

Rights of audience. Lawyers need no specialqualification to appear in court, although lawyers who do courtwork can become members of specialist bar associations. However,membership of these bars and the title of advocate has nosignificance in the litigation process.

Fees. Prices for lawyers' services in Russiaother than those charged by international law firms varyenormously. Hourly rates of partners and senior lawyers aregenerally in the range of RUR2,935 (EUR117) to RUR8,603 (EUR343),and junior lawyers RUR1,229 (EUR49) to RUR3,687 (EUR147).

There are state and private notaries in Russia. Numbers ofpractising notaries are limited in each notarial district in thecountry. As a rule, notaries certify copies of documents,translations, signatures and a few kinds of contracts (forexample, mortgage contracts).

The following qualifications are required:

The Swedish court system is divided into civil andadministrative courts. The Swedish Code of Judicial Procedure wasissued in 1942 and came into force on 1st January, 1948. The Codeapplies to civil and criminal cases.

A translation of the Code which takes into account theamendments of the Code in force as of 1st January, 1999 waspublished by the Ministry of Justice in 1998 (Ds1998-65).

Swedish courts are organised on the principle that courtsshould deal with a broad range of cases. The district courts, thecourts of appeal and the Supreme Court also deal with criminalcases.

District courts. The lowest level of thecivil court system in Sweden consists of 95 district courts,varying in size from two or three judges to the largest one inStockholm with roughly 100 judges. Though all civil cases aredealt with by the district courts irrespective of the amount ornature of the claim (except for those relating to maritime, realproperty or water rights law), the procedural rules varydepending on the amount of the claim. Claims for underapproximately SEK20,000 (EUR2,300) are governed by a relativelysimplified set of procedural rules: for example, the scope forrecovering litigation costs from the opposing party islimited.

Only the three largest district courts in Stockholm,Göteborg and Malmö are split into divisions which areto some extent specialised. General commercial issues are notdealt with by any specific division. Most large commercial casesare dealt with by the courts in the major cities.

Courts of appeal. Appeals from the districtcourts lie to the six courts of appeal (hovrätt)and from these to the Supreme Court (Högstadomstolen) (see www.plc info.com "Litigating acrossEurope", EC,1999, IV (3), 41). The judicial districts of the courtsof appeal are defined on geographical grounds. Like the districtcourts, the courts of appeal are not generally specialised. But,like the largest district courts, the courts of appeal havedifferent divisions, each to some extent specialised. Forexample, intellectual property cases are dealt with by only oneof the fifteen divisions of the Svea Court of Appeal (situated inStockholm). In cases involving smaller claims (underapproximately SEK36,000 (EUR4,100) permission is needed before anappeal can be brought.

The judges in civil cases are professional judges. Permanentjudges in both the district courts and the courts of appeal areappointed by the government on the basis of merit and capabilityand no political considerations are taken into account.

Non-specialisation. Judges in district courtsand courts of appeal are required to deal with both civil andcriminal cases. Only the district courts allocate criminal andcivil cases to different divisions. Even then, however, judgeshave to change divisions approximately every three years.

The non-specialisation of courts and judges can make civillitigation a bit of a gamble. In the worst case scenario, a casecan end up being heard by a judge who has little or no experienceof commercial matters or of the rules governing the area inquestion. This can be a problem, in particular, with districtcourts in smaller cities. However, nowadays many of the youngerjudges have spent at least some time in private practice, whichgives them a broader commercial perspective.

Qualification. The most common route tobecoming a judge after graduation is to:

The best way of obtaining a permanent position as a judge isto work in a ministry. Consequently, when finally appointed,judges have often spent a long time away from everyday judicialwork.

Civil servants in the ministries are not appointed onpolitical grounds. Accordingly, the would-be judge's prospectsare not harmed by a change in political leadership.

Composition of court. Most cases are decidedat the first instance by three judges and by four in the court ofappeal. However, because judges are not specialised, the academicskills of legal counsel can be very important.

Jury trial. Civil actions are not tried by ajury, except for certain cases involving press libel.

A person wishing to act as a legal adviser or counsel in civilcases does not have to meet any formal requirements. A legaladviser or counsel is not even required to have a law degree orany legal experience before arguing a case before the courts.Accordingly, a litigant is not under any obligation to engage alegal adviser and can in all instances argue the case himself(see below "Unskilled counsel").

However, a party with a substantive claim invariably choosesto have legal representation. The choice may then fall on theparty's own corporate lawyer or more likely, when it comes tolitigation, a lawyer in a law firm. Normally only the largest lawoffices in Sweden have lawyers who specialise in litigation only.Lawyers at smaller firms are often generalists and litigate whennecessary. The tendency in Sweden, is however, to emphasise theneed for constant practise to acquire and maintain the skills ofa good litigator.

Advokats. If a party engages anindependent lawyer to handle litigation, it is likely to choosean advokat. Only members of the Swedish Bar Associationare permitted to use this title. The Swedish Bar Association isan independent organisation of professional lawyers which worksto preserve good legal ethics. Its rules are laid down by thegovernment, but it is run by the members without governmentalinterference (except that, if a person is excluded from theassociation, he may appeal to the Supreme Court).

To be admitted into the Swedish Bar Association the applicantis required to have completed the following:

Unskilled counsel. Although persons acting aslegal counsel in civil cases do not have to meet any formalrequirements, the court has some means of sanction in relation tounskilled counsel. The court can forbid a person to act as legalcounsel in a particular case or in at a particular court for afixed period of time. This measure is very rarely used andrequires relatively serious misconduct or obvious ignorance ofthe law. Instead, it is more usual for the court to grantunskilled counsel reduced compensation for litigation costs.

Fees. Lawyers do not charge on a time basis,but time is an important factor. In large commercial firms anestimated hourly rate would be SEK2,500 to SEK3,000 (EUR300 to350) for a senior lawyer.

EEA lawyers. A lawyer from a country withinthe EEA may become a member of the Swedish Bar Association bypassing an examination under the Swedish legal system.

According to the Ministry of Justice, the LawyersEstablishment Directive will be fully implemented on time (see box "Lawyers within the EU") . Therefore, passing anexam will no longer be a prerequisite by March 2000 (or at thelatest by July 2000) if the lawyer has practised in Sweden for atleast three years.

There are few notaries public in Sweden. For example in thecounty of Stockholm there are a total of 13. Lawyers who areappointed as notaries usually do other work as well. Notariespublic are used mainly to confirm signatures, copies ofdocuments, translations and the contents of documents.