Expertise Archives - Page 2 of 2

Legal Advice From the Qualified Only

The Rechtsdienstleistungsgesetz, the Legal Services Act of 2007, decides who may give legal advice outside court in Germany. Its stated purpose is to protect people who seek legal help vor unqualifizierten Rechtsdienstleistungen, from unqualified legal services. A legal service is any work in someone else’s concrete matter that requires a legal examination of the individual case. Offering it independently is not allowed unless a law permits it. A neighbor may help with a letter to the landlord for free. An association that gives free legal advice to strangers needs a lawyer or a similarly qualified person behind it. A business needs a specific permission under the act.

In 2021 the Federal Court of Justice drew the limit of this rule. The Hamburg bar association had sued the publisher of Smartlaw, an online generator that builds contracts from a user’s answers. The court dismissed the suit. The offer was abstract and not aimed at a concrete individual case, so it was not a legal service.

The Pharmacist’s Pharmacy

In Germany, only a licensed pharmacist may own a pharmacy. Every partner in a pharmacy must hold the permit to run it. Besides the main pharmacy, which the owner must run in person, an owner may run at most three branches. On 19 May 2009, the European Court of Justice upheld the rule. A pharmacist also wants to make a profit, the court said. But as a professional pharmacist, he runs the pharmacy nicht nur aus rein wirtschaftlichen Zwecken, not only for purely economic purposes, but also from a professional point of view. His interest in profit is tempered by his training, his professional experience and the responsibility he bears.

In 1958, the Federal Constitutional Court decided an earlier pharmacy case. Bavaria had allowed a new pharmacy only where the public needed one and its economic basis was secure. The court declared the rule void, because it violated the freedom to choose an occupation. But it allowed the state to make entry depend on personal qualifications, especially education and training. The court described an occupation as something that is for the individual Lebensaufgabe und Lebensgrundlage, his life task and the basis of his livelihood.

Cobbler, stay with your lasts

Cobbler, stay with your lasts.

The story is from Pliny the Elder. A shoemaker criticized the sandal in a painting by Apelles, and the painter corrected it. When the cobbler went on to criticize the leg, the painter told him to stop.

The German use of the phrase is not an instruction in modesty. It asserts the opposite of what it appears to say: within your last, your judgment outranks anyone’s.

The sworn expert

The term Sachverständiger, expert, is not legally protected in Germany. Anyone insufficiently qualified may call themselves one and offer their services on the market.

So German law built a second tier: öffentlich bestellt und vereidigt, publicly appointed and sworn. Only specialists whose knowledge lies considerably above average are appointed, after an exacting examination procedure, and their work then stands under the permanent supervision of the appointing body — the chambers of crafts, of industry and commerce, of architects, of engineers.

One line from the guidance issued by the Regensburg chamber states the principle exactly: performing your profession properly is not yet sufficient proof of special expertise.

Doing the job well is the floor, not the qualification.