[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