[Federal Register Volume 76, Number 86 (Wednesday, May 4, 2011)]
[Notices]
[Pages 25401-25402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10874]
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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
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.
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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, (202) 395-3150; William Busis, Deputy Assistant United States
Trade Representative for Monitoring and Enforcement and Chair of the
Section 301 Committee, (202) 395-3150; David Weiner, Deputy Assistant
United States Trade Representative for Europe, (202) 395-4620; or
Christopher Melly, Deputy Assistant United States Trade Representative
for Services, (202) 395-4510.
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
[[Page 25402]]
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.
[FR Doc. 2011-10874 Filed 5-3-11; 8:45 am]
BILLING CODE 3190-W1-P