2011-10874. Petition Under Section 302 on Access to the German Bar Aptitude Examination; Decision Not To Initiate Investigation

AGENCY:

Office of the United States Trade Representative.

ACTION:

Decision not to initiate investigation.

SUMMARY:

The United States Trade Representative (Trade Representative) has determined not to initiate an investigation under Section 301 of the Trade Act of 1974, as amended (Trade Act), with respect to a petition alleging, among other things, that the Government of Germany has breached obligations under the Treaty of Friendship, Commerce and Navigation Between the United States of America and the Federal Republic of Germany (the FCN Treaty) to afford U.S. citizens national treatment and most-favored-nation (MFN) status in connection with requirements for access to the German bar aptitude examination.

DATES:

Effective Date: April 28, 2011.

FOR FURTHER INFORMATION CONTACT:

Jared Wessel, Assistant General Counsel, [phone]; William Busis, Deputy Assistant United States Trade Representative for Monitoring and Enforcement and Chair of the Section 301 Committee, [phone]; David Weiner, Deputy Assistant United States Trade Representative for Europe, [phone]; or Christopher Melly, Deputy Assistant United States Trade Representative for Services, [phone].

SUPPLEMENTARY INFORMATION:

On March 14, 2011, Mr. Peter M. Haver filed a petition on his own behalf pursuant to Section 302 of the Trade Act addressed to acts, policies, and practices of the Government of Germany regarding requirements for access to the German bar aptitude examination. The petition contends that Mr. Haver (the petitioner) is a U.S. citizen who practices U.S. and French law as a foreign legal consultant in Germany. The petition states that under German law, only nationals of Germany, the European Economic Area, and the Swiss Confederation are eligible to sit for the German bar aptitude examination. The petition alleges that these acts, policies, and practices restrict U.S. citizens from sitting for the German bar aptitude examination and, therefore, from gaining admission to the German bar, and that these restrictions: (1) Violate the national treatment obligations of the FCN Treaty; (2) violate the MFN obligations of the FCN Treaty; and (3) constitute unreasonable and discriminatory treatment of U.S. citizens. The petition requests that the Trade Representative Atake measures” against Germany under Section 301.

The Trade Representative, upon the advice of the interagency Section 301 Committee, has decided not to initiate an investigation under Section 301 of the Trade Act in response to the petition. The Trade Representative's decision is based on three separate grounds.

First, the petition fails to allege that Mr. Haver has the significant interest necessary to have standing as an interested person to file a petition under Section 302 of the Trade Act. See 15 CFR 2006.0(b). According to the petition, Mr. Haver need not sit for the examination to practice law in Germany because he has an “automatic right to German bar membership” based on the fact that he has resided and practiced law in Germany for three years. Because Mr. Haver claims he has another, automatic option for obtaining admission to the German bar, the petition fails to allege that Mr. Haver has the significant interest necessary to have standing to file a petition regarding access to the German bar aptitude examination. The petition does not allege, for example, that there is any economic benefit to Mr. Haver through admission by examination that he would not obtain through automatic admission based on his three years of practice.

Second, in the framework of the Trade Act, the petition's allegations that Germany breached its national treatment and MFN obligations under the FCN Treaty amount to an allegation of an unjustifiable act, policy, or practice under Section 301(d)(4) (defining an unjustifiable act, policy, or practice as one that “is in violation of, or inconsistent with, the international legal rights of the United States,” including an act, policy, or practice that “denies national or most-favored-nation treatment”), and not an allegation of the violation of a “trade agreement” under Section 301(a)(1)(B)(i). To be actionable under Section 301, an unjustifiable act, policy, or practice must burden or restrict U.S. commerce. See Section 301(a)(1)(B)(ii) of the Trade Act. Here, the petition fails to include sufficient information on burdens or restrictions on U.S. commerce arising from the alleged restrictions under German law on access to the German bar aptitude examination. The petition does not establish the volume of trade in legal services involved or how that volume is impacted by the restrictions in question. See also 15 CFR 2006.1(a)(7) (requiring that a petition contain information on the burden or restriction on U.S. commerce.)

Third, the initiation of a Section 301 investigation in response to the petition would not be an effective means to address the matters raised in the petition. See Section 302(c) of the Trade Act. According to the petition, Mr. Haver previously raised his claims under the FCN Treaty in German courts, and the German courts have rejected those claims. Mr. Haver claims that the German courts' interpretation of the FCN Treaty is erroneous.

The FCN Treaty does include a dispute settlement mechanism: disputes between the parties regarding the interpretation or application of the FCN Treaty may be submitted to the International Court of Justice (ICJ). An ICJ proceeding, however, would not be an effective tool for purposes of Section 301 of the Trade Act. In particular, under the statutory provisions applicable to the allegations in the petition, the Trade Representative would have to conclude the investigation, and decide what action to take under Section 301, within 12 months. See Section 304(a)(2)(B) of the Trade Act. An ICJ proceeding conducted pursuant to the FCN Treaty would typically take longer than 12 months. For this and other reasons, initiation of an investigation under Section 301 would not be an effective means to address the alleged restrictions on access to the German bar aptitude examination.

This decision not to initiate an investigation under Section 301 does not preclude other means to try to address the matters raised in the petition.

William Busis,

Chair, Section 301 Committee.