Commission of the European Communities v Federal Republic of Germany.

• Jurisdiction: European Union
• Celex Number: 61985CJ0427
• ECLI: ECLI:EU:C:1988:98
• Court: Court of Justice (European Union)
• Docket Number: 427/85
• Procedure Type: Recours en constatation de manquement - fondé
• Date: 25 February 1988

Avis juridique important

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61985J0427

Judgment of the Court of 25 February 1988. - Commission of the European Communities v Federal Republic of Germany. - Lawyers' freedom to provide services - Transposition into national law of Directive 77/24/9EEC. - Case 427/85.

European Court reports 1988 Page 01123
Swedish special edition Page 00395
Finnish special edition Page 00403

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

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FREEDOM TO PROVIDE SERVICES - LAWYERS - DIRECTIVE 77/249 - IMPLEMENTATION - OBLIGATION TO WORK IN CONJUNCTION WITH A LOCAL LAWYER - SCOPE - DETAILED ARRANGEMENTS - TERRITORIAL RESTRICTION OF THE RIGHT TO PLEAD APPLICABLE TO LOCAL LAWYERS - NOT APPLICABLE TO THE LAWYER PROVIDING SERVICES

( EEC TREATY, ARTS 59 AND 60; COUNCIL DIRECTIVE 77/249 )

Summary

THE FEDERAL REPUBLIC OF GERMANY FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 59 AND 60 OF THE EEC TREATY AND COUNCIL DIRECTIVE 77/249/EEC TO FACILITATE THE EFFECTIVE EXERCISE BY LAWYERS OF FREEDOM TO PROVIDE SERVICES,

BY REQUIRING THE LAWYER PROVIDING SERVICES TO ACT IN CONJUNCTION WITH A LAWYER ESTABLISHED ON GERMAN TERRITORY, EVEN WHERE UNDER GERMAN LAW THERE IS NO REQUIREMENT OF REPRESENTATION BY A LAWYER

BY REQUIRING THAT THE GERMAN LAWYER, IN CONJUNCTION WITH WHOM HE MUST ACT, HIMSELF BE THE AUTHORIZED REPRESENTATIVE OR DEFENDING COUNSEL IN THE CASE,

BY NOT ALLOWING THE LAWYER PROVIDING SERVICES TO APPEAR IN THE ORAL PROCEEDINGS UNLESS HE IS ACCOMPANIED BY THE SAID GERMAN LAWYER,

BY LAYING DOWN UNJUSTIFIED REQUIREMENTS REGARDING PROOF OF THE CO-INVOLVEMENT OF THE TWO LAWYERS,

BY IMPOSING THE REQUIREMENT, WITHOUT ANY POSSIBLE EXCEPTION, THAT THE LAWYER PROVIDING SERVICES IS TO BE ACCOMPANIED BY A GERMAN LAWYER IF HE VISITS A PERSON HELD IN CUSTODY AND IS NOT TO CORRESPOND WITH THAT PERSON EXCEPT THROUGH THE SAID GERMAN LAWYER, AND

BY MAKING LAWYERS PROVIDING SERVICES SUBJECT TO THE RULE OF TERRITORIAL EXCLUSIVITY LAID DOWN IN PARAGRAPH 52 ( 2 ) OF THE BUNDESRECHTSANWALTSORDNUNG .

Parties

IN CASE 427/85

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY FRIEDRICH-WILHELM ALBRECHT, LEGAL ADVISER IN THE COMMISSION' S LEGAL DEPARTMENT, ASSISTED BY HEINRICH HOECHTING, RECHTSANWALT, BREMEN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

APPLICANT,

V

FEDERAL REPUBLIC OF GERMANY, REPRESENTED BY MARTIN SEIDEL, MINISTERIALRAT IN THE FEDERAL MINISTRY OF ECONOMIC AFFAIRS, AND BY HORST TESKE, MINISTERIALRAT IN THE FEDERAL MINISTRY OF JUSTICE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE GERMAN EMBASSY, 20-22 AVENUE EMILE REUTER,

DEFENDANT,

APPLICATION UNDER ARTICLE 169 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY FOR A DECLARATION THAT THE FEDERAL REPUBLIC OF GERMANY HAS FAILED, IN REGARD TO THE EXERCISE BY LAWYERS OF FREEDOM TO PROVIDE SERVICES, TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY AND COUNCIL DIRECTIVE 77/249/EEC OF 22 MARCH 1977 TO FACILITATE THE EFFECTIVE EXERCISE BY LAWYERS OF FREEDOM TO PROVIDE SERVICES,

THE COURT

COMPOSED OF : LORD MACKENZIE STUART, PRESIDENT, G . BOSCO AND J . C . MOITINHO DE ALMEIDA ( PRESIDENTS OF CHAMBERS ), T . KOOPMANS, U . EVERLING, K . BAHLMANN, Y . GALMOT, C . KAKOURIS, R . JOLIET, T . F . O' HIGGINS AND F . SCHOCKWEILER, JUDGES,

ADVOCATE GENERAL : J . L . DA CRUZ VILACA

REGISTRAR : B . PASTOR, ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 8 JULY 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 3 DECEMBER 1987,

GIVES THE FOLLOWING

JUDGMENT

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 23 DECEMBER 1985, THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION BEFORE THE COURT UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT, IN REGARD TO THE EXERCISE BY LAWYERS OF FREEDOM TO PROVIDE SERVICES, THE FEDERAL REPUBLIC OF GERMANY HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY AND COUNCIL DIRECTIVE 77/249/EEC OF 22 MARCH 1977 TO FACILITATE THE EFFECTIVE EXERCISE BY LAWYERS OF FREEDOM TO PROVIDE SERVICES ( OFFICIAL JOURNAL 1977, L 78, P . 17 ).

2 MORE PARTICULARLY, THE COMMISSION CRITICIZES THE FEDERAL REPUBLIC OF GERMANY FOR BRINGING INTO FORCE A NATIONAL LAW INTENDED TO IMPLEMENT DIRECTIVE 77/249 ( THE LAW OF 16 AUGUST 1980 - BUNDESGESETZBLATT I P . 1453 ), PARAGRAPH 4 OF WHICH PROVIDES :

( A ) THAT A LAWYER FROM ANOTHER MEMBER STATE WHO, IN CONNECTION WITH THE PROVISION OF SERVICES, CARRIES ON IN THE FEDERAL REPUBLIC OF GERMANY ACTIVITIES RELATING TO THE REPRESENTATION OR THE DEFENCE OF A CLIENT IN LEGAL PROCEEDINGS MAY ACT ONLY IN CONJUNCTION WITH A GERMAN LAWYER, EVEN IN THOSE CASES WHERE UNDER GERMAN LAW THERE IS NO MANDATORY REQUIREMENT OF REPRESENTATION BY A LAWYER;

( B ) THAT THE GERMAN LAWYER IN CONJUNCTION WITH WHOM THE LAWYER FROM THE OTHER MEMBER STATE ACTS MUST HIMSELF BE THE AUTHORIZED REPRESENTATIVE OR DEFENDING COUNSEL IN THE PROCEEDINGS;

( C ) THAT, IN ADDITION, THE LAWYER PROVIDING THE SERVICE

( I ) MAY NOT APPEAR IN ORAL PROCEEDINGS OR AT CRIMINAL TRIALS UNLESS HE IS ACCOMPANIED BY THE GERMAN LAWYER, AND

( II ) MAY NOT VISIT, AS DEFENDING COUNSEL, A PERSON HELD IN CUSTODY UNLESS ACCOMPANIED BY THE GERMAN LAWYER AND MAY COMMUNICATE IN WRITING, AS DEFENDING COUNSEL, WITH A PERSON HELD IN CUSTODY ONLY THROUGH THE GERMAN LAWYER;

( D ) THAT THE NECESSARY CO-INVOLVEMENT OF THE GERMAN LAWYER MUST BE PROVED WHENEVER A STEP IS TAKEN; THAT ANY STEP WHICH IS TAKEN IN CONTRAVENTION OF THE AFOREMENTIONED PROVISIONS BY THE LAWYER PROVIDING THE SERVICES OR IN RESPECT OF WHICH SUCH CO-INVOLVEMENT IS NOT PROVED AT THE TIME WHEN IT IS TAKEN IS TO HAVE NO EFFECT; THAT SUCH CO-INVOLVEMENT IS PRESUMED TO EXIST IN THE CASE OF ORAL PROCEEDINGS OR CRIMINAL TRIALS UNLESS THE GERMAN LAWYER IMMEDIATELY COUNTERMANDS OR AMENDS THE STEP;

( E ) THAT, IN CASES WHERE IT IS MANDATORY TO BE REPRESENTED BY A LAWYER ADMITTED TO PRACTISE BEFORE THE JUDICIAL AUTHORITY IN QUESTION, PARAGRAPH 52 ( 2 ) OF THE BUNDESRECHTSANWALTORDNUNG ( FEDERAL REGULATION CONCERNING LAWYERS ) IS TO BE APPLIED .

3 THE COMMISSION' S COMPLAINTS CONCERN THE MANNER IN WHICH THE GERMAN LEGISLATION IMPLEMENTS DIRECTIVE 77/249 (" THE DIRECTIVE ") AS REGARDS THE DUTY OF WORKING "IN CONJUNCTION" IMPOSED UPON A LAWYER ESTABLISHED IN ANOTHER MEMBER STATE WHO PURSUES ACTIVITIES ON GERMAN TERRITORY AS A PROVIDER OF SERVICES . THE CONCEPT OF WORKING IN CONJUNCTION IS BASED ON ARTICLE 5 OF THE DIRECTIVE, ACCORDING TO WHICH "FOR THE PURSUIT OF ACTIVITIES RELATING TO THE REPRESENTATION OF A CLIENT IN LEGAL PROCEEDINGS" THE MEMBER STATES MAY REQUIRE LAWYERS PROVIDING SERVICES "TO WORK IN CONJUNCTION" EITHER WITH A LAWYER WHO PRACTISES BEFORE THE JUDICIAL AUTHORITY IN QUESTION AND WHO WOULD, WHERE NECESSARY, BE ANSWERABLE TO THAT AUTHORITY OR WITH AN "AVOUE" OR "PROCURATORE" PRACTISING BEFORE IT .

4 THIS ACTION CONCERNS THREE DISTINCT PROBLEMS, NAMELY THE SCOPE OF THE WORK IN CONJUNCTION, THE DETAILED RULES GOVERNING WORK IN CONJUNCTION...