OGH: Austrian Bar Exam and EIRAG Test Are Equivalent

Mar 3, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that the Austrian bar exam is equivalent to the aptitude test pursuant to Sections 24 et seq. of EIRAG[1].

In the original case, a Liechtenstein lawyer wanted to act in Austria in proceedings that required representation by a lawyer. His client (the plaintiff) applied for coverage under his legal protection insurance. The insurance company rejected the claim, as European lawyers can only act in proceedings with an absolute obligation to be represented by a lawyer in cooperation with an Austrian EIRAG lawyer unless the European lawyer providing legal services has successfully passed the aptitude test under Section 5 (3) EIRAG. EIRAG does not contain any provision according to which a successfully completed Austrian bar exam would replace the aptitude test.

The court of first instance found in favour of the plaintiff. The appeals court was of the opinion that the preconditions for the Liechtenstein lawyer taking action had not yet been met.

The Austrian Supreme Court ruled in favour of the plaintiff.

European lawyers who only temporarily provide legal services may only act in proceedings requiring representation by a lawyer if they act in cooperation with an EIRAG lawyer or if they have passed the EIRAG aptitude test (Section 5 EIRAG).

According to the OGH, the Austrian bar exam requires a more extensive knowledge of Austrian law than the EIRAG aptitude test. The latter has a limited purpose, namely that a lawyer already established and practising abroad must acquire additional but minor Austrian legal knowledge.

Lawmakers obviously did not have in mind a constellation in which a graduate of an Austrian law school and; having passed the Austrian bar exam, would not register in Austria, but instead in another EEA country.

The Austrian Bar Examination and the EIRAG aptitude test are therefore to be regarded as at least equivalent. A lawyer who has passed the Austrian bar examination does not need to cooperate with an EIRAG lawyer, even without having passed the EIRAG aptitude test.

OGH 4 Ob 192/22x (20.12.2022)

[1] EIRAG: Bundesgesetz über den freien Dienstleistungsverkehr und die Niederlassung von europäischen Rechtsanwältinnen und Rechtsanwälten sowie die Erbringung von Rechtsdienstleistungen durch international tätige Rechtsanwältinnen und Rechtsanwälte in Österreich (Austrian Federal Statute on the free movement of services and establishment of European lawyers and the provision of legal services by international lawyers in Austria)