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Judgement hammer

Alternative funds lawyer awarded landmark decision by European Court of Justice

Robert Koller, an Austrian citizen, who completed law degrees in both Austria and Spain, has been awarded a landmark decision in a dispute lasting several years in relation to the Austrian legal profession.

Having first qualified as a lawyer in Spain, he applied to take the foreign lawyers’ test in Austria and requested exemption based on the fact that he had studied law in Austria and that there was a relevant provision in Austrian law.

However, his request for admittance to the aptitude test was denied in the first instance and also after appeal by the Oberste Berufungs und Disziplinarkommission (Appeals and Disciplinary Board; OBDK). Nevertheless, the Austrian Constitutional Court confirmed Koller in a decision in which it annulled the ruling of the OBDK, calling it arbitrary. Despite the clear ruling of the Constitutional Court, the OBDK referred two questions to the European Court of Justice (ECJ).

The ECJ ruled that Koller’s qualifications as a whole fall within the scope of Directive 89/48/EEC on the mutual recognition of diplomas and that due to the fact that he had in fact acquired an additional qualification over and above that obtained in Austria, no abuse or circumvention of Austrian rules had taken place.

The ECJ also ruled that any practical experience required in Austria to become a lawyer is irrelevant for the definition of the term diploma as used in the Directive and that Koller must therfore be admitted to the foreign lawyers’ aptitude test in Austria.

In addition, the ECJ's ruling establishes that the host member state, i.e. Austria, may require an aptitude test only in case of a substantial difference and that an aptitude test may only be prescribed following verification that the knowledge acquired by the applicant in the course of his entire professional experience is capable of covering such substantial difference, if any. The host Member State shall also not require any proof of completion of practical experience.

Koller (31), who is admitted as a lawyer in Spain (abogado, since 2005) and Germany (Rechtsanwalt, since 2010) and currently works with an international law firm Clifford Chance in Frankfurt am Main, Germany, represented himself in all instances, including the Austrian Constitutional Court and the European Court of Justice. He specialises in capital markets and banking, funds and European law and is also a Chartered Alternative Investment Analyst, and Co-Chair of the German CAIA chapter. Prior to moving to Germany, Koller had also worked as a lawyer with major firms in Spain and Gibraltar.

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