Order Pre / 421/2013 Of 15 March, Which Develops Royal Decree 1837/2008, Of November 8, Regarding The Aptitude Test To Be Performed By Lawyers And Solicitors National Of A Member State Of The European Union And ...

Original Language Title: Orden PRE/421/2013, de 15 de marzo, por la que se desarrolla el Real Decreto 1837/2008, de 8 de noviembre, en relación con la prueba de aptitud que deben realizar los abogados y procuradores nacionales de algún Estado miembro de la Unión Europea y ...

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The removal of obstacles to the free movement of persons and services between Member States is one of the objectives of the European Community, as enshrined in Article 3.1.c) of the Treaty. Such removal is, for nationals of the Member States, the power to exercise a profession or self-employed, in a Member State other than that in which they acquired their professional qualifications.

By Royal Decree 1837/2008, of November 8, they are incorporated into Spanish law Directive 2005/36 / EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications and Directive 2006/100 / EC of the Council of 20 November 2006 amending adapting certain directives in the field of free movement of persons, by reason of the accession of Bulgaria and Romania, as well as certain aspects of practicing the legal profession established rules to allow access to and exercise to nationals of Member States of the European Union and European Economic Area.

Article 22 of Royal Decree 1837/2008, of November 8, states that the Spanish competent authority may require to practice in Spain after passing an aptitude test when the profession has one or more professional activities regulated not exist in the corresponding profession in the member State of origin and that difference consists in specific training required in Spain and on substantially different from those covered by the certificate of competence or evidence of formal qualifications alleging the requesting party materials . The same article specifically requires that when he intends to pursue the professions of lawyer and attorney, the applicant must overcome in any case prior aptitude test.

It should be remembered that the Royal Decree 1837/2008, of November 8, maintain in effect the royal decrees transposing directives not affected by the 2005/36 / EC. This is the case of Directive 77/249 / EEC to facilitate the effective exercise of freedom to provide services by lawyers, and Directive 98/5 / EC to facilitate the permanent exercise of the profession of lawyer a member State other than that in which the qualification was obtained, incorporated into Spanish law by Royal Decree 607/1986 of 21 March development Council Directive of the European Communities of 22 March 1977, designed to facilitate the effective exercise of freedom to provide services of lawyers and 936/2001 of 3 August, which regulates the permanent exercise in Spain of the profession of lawyer with professional title obtained in another member State European Union respectively. These directives concern the freedom to provide services and exercise of the profession, not the recognition of professional qualifications for the establishment under the professional title of the host Member State, which itself is covered by Directive 2005/36 / EC and by the Royal Decree 1837/2008, of November 8.

Thus, for the recognition of professional qualifications of lawyers and solicitors of a Member State of the European Union or a State party to the Agreement on the European Economic Area, and for the full exercise of the profession in Spain , with the same rights and obligations as Spanish nationals, it is a necessary precondition upon passing an aptitude test which is regulated in Article 23 of the Royal Decree, which requires the competent authority the development of general criteria development Heretofore he had understood covered by the provisions of the Order of April 30, 1996, by which develops the Royal Decree 1665/1991, of 25 October, which affects the professions of lawyer and attorney. However, the development of such an order can not be considered fully adequate to the new rules, which motivates the adoption of this order.

By virtue of a proposal from the Ministers of Justice and Education, Culture and Sports, with the prior approval of the Minister of Finance and Public Administration, after hearing the General Council of Spanish Lawyers and Attorneys General Council of Spain , I have:
CHAPTER
I
General provisions


Article 1. Purpose.


This order aims to develop the aptitude test, which was referred to in Articles 22.3 and 23 of Royal Decree 1837/2008, of 8 November, which are incorporated into Spanish law Directive 2005/36 / EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications and Directive 2006/100 / EC of the Council of 20 November 2006, by adapting certain directives in the field of free movement of persons, by reason of the accession of Bulgaria and Romania, as well as certain aspects of the exercise of the legal profession.

Article 2. Scope.

The procedure under this Order shall apply, from its entry into force, all nationals of the European Union and the European Economic Area, being in possession of a law degree or attorney obtained in any their States, intending to establish themselves in Spain these professions through professional recognition and upon passing the aptitude test established by the RD 1837/2008, of November 8.

Article 3. Definition.

For the purposes of the provisions of this order, the term 'lawyer' means any national of a Member State of the European Union or a State party to the Agreement on the European Economic Area authorized to pursue his professional activities under one of the names set both Article 2 of Royal Decree 607/1986, of 21 March, as in Article 2 a) of Royal Decree 936/2001, of 3 August, in the wording given in the provisions first and second end of Royal Decree 1837/2008, of November 8, and which are contained in Annex I to this order.

For the purposes of this order will be considered 'attorney' national professional of a Member State of the European Union or a State party to the Agreement on the European Economic Area who is in possession of any of the titles listed in Annex I to this order. For those States not listed in the Annex, it must be provided a certificate title of the exercise of an equivalent regulated profession carrying out duties of cooperation with the Administration of Justice with responsibility for legal representation, communication events and judicial assistance and implementing acts of judgments, requiring either a degree or a graduate in law or being in possession of another university higher education degree equivalent and meets the powers which Article 3 of Royal Decree 775/2011, of June 3, it referred to by Regulation of the Law 34/2006, of October 30, on access to the professions of Barrister and Solicitor of the Courts approved.

Article 4. Applicable regulations.

Shall apply to the aptitude test for the exercise of the profession of lawyer or Directive 2005/36 / EC of the European Parliament and of the Council of 7 September 2005, and Directive 2006/100 / EC of the Council of 20 November 2006 on the recognition of professional qualifications, as well as certain aspects of the exercise of the legal profession, as well as Royal Decree 1837/2008, of 8 November, by which incorporate them into Spanish law.
CHAPTER II


Procedure for the aptitude test

Article 5. Requirements.

Those wishing to participate in the aptitude test to be convened annually by resolution of the Directorate General of Relations with the Administration of Justice, must have on the day of the deadline for submission of applications, the following requirements:

1. Have the nationality of any of the Member States of the European Union or other States party to the Agreement on the European Economic Area, a requirement that must be maintained until completion of the test.

2. To hold the official title of lawyer or attorney obtained a member of the European Union or European Economic Area State.

Article 6. Submission of applications.

Applicants must submit their application, according to the official model to be published in the call, addressed to the Directorate General of Relations with the Administration of Justice.

Applications may be completed on paper or electronically when so pick up the call.


Applications on paper, as well as additional documentation need to be submitted in written applications electronically, must be submitted in check the Ministry of Justice or any of the places specified in Article 38.4 of law 30/1992 of 26 November on the Legal Regime of Public Administrations and Common Administrative Procedure, along with your passport or any other proof of nationality.

The deadline for submission shall be twenty calendar days from the day following the date of publication of the annual call in the "Official Gazette" day.

The call will specify, in accordance with the provisions of the Law on State Budget, the examination fees and the mechanism for payment.

Applications subscribe abroad they may be made through the Spanish diplomatic or consular representations corresponding; and the same bank proof of having entered the examination fees shall be accompanied.

In addition, the declaration must be accompanied by responsible Annex II of this Order.

Item 7. Provisional list of admitted and admission of applicants.

After the deadline for submission of applications, the Directorate General of Relations with the Administration of Justice published the provisional list of applicants admitted to the aptitude test, starting the computation of the cure period.

Subsequently, once it studied the documentation submitted will proceed to the publication of the final list of accepted and rejected, indicating the place where it is exposed to the public, as well as the date, time and venue of the aptitude test.

Article 8. Evaluation Committees.

The Evaluation Commission for testing firm, whose composition will tend to parity between men and women, will consist of six members, two of whom are public officials group A1 graduates or graduates in Law, appointed by the Directorate General of Relations with the Administration of Justice, Ministry of Justice, a public official group A1 licensed or graduated in law designated by the Technical Secretariat of the Ministry of Education, Culture and Sport and three lawyers appointed by the General Council of the Spanish law, with more than 5 years of professional experience.

The evaluation commission for testing procurators, whose composition will tend to parity between men and women, will consist of six members, two of whom are public officials group A1 graduates or graduates in Law, appointed by the Directorate General of Relations with the Administration of Justice, Ministry of Justice, a public official group A1 licensed or graduated in law designated by the Technical Secretariat of the Ministry of Education, Culture and Sport and three attorneys appointed by the General Council of procurators of the Courts of Spain, with more than 5 years of professional experience.

For each of these evaluation committees will be also appointed an alternate member for each holder, acting in his absence, and his appointment will be identical to the owner committee.

The committees shall I chaired in each case by one of the representatives appointed by the Ministry of Justice determined by him and secretariats will be occupied by one of those appointed by the General Councils of each of the professions members, elected by the commission itself.

Secondarily, the Evaluation Commission will accommodate its operation the system provided for corporate bodies in Chapter II of Title II of Law 30/1992 of 26 November on the Legal Regime of Public Administrations and Common Administrative Procedure .

Article 9. Development of the aptitude test.

The aptitude test, to be held in Castilian, will consist of the resolution of a case study participant's choice from those proposed by the Commission, which will focus on the subjects listed in Annexes III and IV and by be specific to the Spanish legal system, they are not covered by the evidence of qualifications that the applicant may possess, and whose knowledge is an essential condition to practice in Spain.

For the resolution of the case is allowed only the use of all kinds of legal texts and legal manuals.


In a later session will proceed to read the examination before the evaluation commission, which will open a round of questions on the test object, as well as about the Spanish Judicial Organization and Professional Ethics.

Respective evaluation commissions, resolve any matters relating to the implementation of the call, the obligation to observe the rules stated in the notice and those that may be established by each of the candidate evaluation committees being.

The evaluation committees will qualify the candidate's ability to practice in Spain in terms of "suitable" and "unsuitable". The rating of "unfit" not preclude submitted to the following calls.

The evaluation commissions shall make a record of the development of the tests, which shall include the nominal ratio of each of the candidates evaluated, along with the qualification obtained and communicated to stakeholders qualification. The list of candidates who have obtained the qualification of "suitable" be made public at the places determined by the call, notifying stakeholders their qualification within a maximum period of one month with the purposes specified in Article 11.

Article 10. Contesting acts of commission.

Acts of the evaluation committees may be challenged by interested parties by administrative appeal, which will be resolved by the Directorate General of Relations with the Administration of Justice, as established in Law 30/1992 of 26 November Legal Regime of Public Administrations and Common Administrative Procedure.

Article 11. Submission of documentation.

Applicants who obtain the qualification of "suitable" in the aptitude test must demonstrate compliance with the requirements of Article 5 by submitting relevant documents at the Ministry of Justice.

The documents issued by authorities other than the Spanish must be accompanied by the official translation into Castilian.

Single derogatory provision.

The Order of April 30, 1996, by which develops the Royal Decree 1665/1991, of 25 October, which affects the professions of attorney and solicitor is repealed.

First final provision. competential title.

This order is issued pursuant to the provisions of Article 149.1.30.ª of the Constitution which belongs to the State exclusive jurisdiction over the regulation of the conditions for obtaining, issuing and standardization of academic degrees and professionals.

Second final provision. supplementary law.

In all cases not covered by this order shall apply the provisions of Royal Decree 1837/2008, of November 8, which incorporates into Spanish law Directive 2005/36 / EC of the European Parliament and of the Council of 7 September 2005, and Directive 2006/100 / EC of the Council of 20 November 2006 on the recognition of professional qualifications, as well as certain aspects of the exercise of the legal profession, and the Law 30/1992 of 26 November on the Legal Regime of Public Administrations and Common Administrative Procedure.

This order shall come into force on the day following its publication in the "Official Gazette" day.

Madrid, 15 March 2013. The Vice-President and Minister of the Presidency, Soraya Saenz de Santamaria Anton.
ANNEX I


Official name of the profession of lawyer and solicitor in the Member States of the European Union and other States party to the Agreement on the European Economic Area

By 'lawyer' means any person entitled to pursue his professional activities under one of the following denominations:

Germany: Rechtsanwalt.

Austria: Rechtsanwalt.

Belgium: Avocat / Advocaat / Rechtsanwalt.

Bulgaria: Aлвокат.

Cyprus: Aikiyopς.

Denmark: Advokat.

Slovakia: Advokát / Komercny 'Právník.

Slovenia: odvetnik / Odvetnica.

Estonia: Vandeadvokaat.

Finland: asianajaja / Advokat.

France: Avocat.
Greece
:
Aikiyopς
Hungary: ügyvéd.

Ireland: Barrister / Solicitor.

Iceland: Lögmaour.

Italy: Avvocato.

Latvia: Zverina'ts advoka-ts.

Liechtenstein: Rechtsanwalt.

Lithuania: advokatas.

Luxembourg: Avocat.

Malta: Avukat / Prokuratur Legali.

Norway: Advokat.

Netherlands: Advocaat.

Poland: Adwokat / Radca prawny.

Portugal: Advogado.

United Kingdom: Advocate / Barrister / Solicitor.


Czech Republic: Advokát.

Romania: Avocat.

Sweden: Advokat.

By "attorney" means any person entitled to pursue his professional activities under one of the following denominations:

UK: Solicitor.

Ireland: Solicitor.

Portugal: Requester.

France: bailiffs.

Belgium: bailiffs.

Estonia: Kohtutäiturid.

Finland: Ulosottomiehet.

Hungary: Onallo Birosagi Vegrehajto.

Latvia: Zverinatu Tiesu Izpilditaju.

Lithuania: Anstoliu.

Luxembourg: bailiffs.

Netherlands: Gerechtsdeurwaarders.

Poland: Komornik Sadowy.

Czech Republic: SOUDNÍ exekútor.

Slovenia: Izvrsiteljica.

Slovakia: Sudni Exekutori.
ANNEX II


Responsible Declaration on possession of the title of lawyer or issued in any of the States of the European Union and the European Economic Area

D. .................................................. ... ............................. nationality, with address for notification ....... .................................................. .........................................
JURA
/
PROMISES
Holding the title of .........................., equivalent to lawyer / solicitor in Spain, having won the title in (country), being able to present to the relevant aptitude test.
Signature and date

ANNEX III


The aptitude test for lawyers will focus on the following subjects:

1. Constitutional Law: a) The Spanish Constitution; b) State Organization; c) fundamental rights and civil liberties.

2. Administrative Law: a) Basic Principles of Administrative Law; b) The administrative procedure; c) public sector contracts; d) The administrative litigation.

3. Civil Law and Commercial Law: a) General Part of the Civil Law; b) the law of obligations and contracts; c) Property and rights; d) family law and inheritance; e) Bonds and commercial contracts; f) company law; g) The civil process.

4. Criminal Law: a) General principles; b) Crimes in particular; c) The criminal proceedings.

5. Labor Law: a) Sources; b) Workers' rights; c) The labor process.

6. The Spanish Judicial Organization.

7. Professional Ethics.
ANNEX IV


The aptitude test proctors will focus on the following subjects:

1. Constitutional Law: a) The Spanish Constitution; b) State Organization; c) Amparo; d) fundamental rights and civil liberties.

2. Administrative Law: a) Basic Principles of Administrative Law; b) Legal Informatics and legal framework of the new technologies in the Administration: c) tax law, special part; d) The administrative litigation.

3. Civil Law and Commercial Law: a) General Part of the Civil Law; b) General Theory of representation and mandate; c) registration law; d) The civil process; e) insolvency law.

4. Criminal Law: a) General principles; b) Criminal proceedings.

5. Labor Law: a) Sources; b) Workers' rights; c) The labor process.

6. The Spanish Judicial Organization.

7. Professional Ethics.

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