Opinion of the Advocate-General
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Mr President,
Members of the Court,
1 . In the present Treaty-infringement proceedings, the Commission seeks a declaration by the Court that the Federal Republic of Germany has failed, with respect to lawyers' freedom to provide services, to fulfil its obligations under the EEC Treaty and under Council Directive No 77/249/EEC of 22 March 1977 . ( 1 )
I - The applicable Community law
2 . The purpose of Directive 77/249/EEC, which was adopted by the Council under Articles 57 and 66 of the Treaty, is to facilitate the effective exercise by lawyers of the freedom to provide services .
3 . Since that freedom derives directly from the Treaty and, in particular from Article 59, the directive must be interpreted in the light of the provisions of the Treaty whose implementation it is designed to ensure .
( a ) The provisions of the Treaty
4 . By virtue of the first paragraph of Article 59 of the Treaty, the elimination of restrictions on the freedom to provide services within the Community extends to all services provided by nationals of the Member States established in a State of the Community other than that of the person for whom the services are intended . According to the first paragraph of Article 60, services normally provided for remuneration are to be regarded as "services" within the meaning of the Treaty, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons .
5 . That definition determines the extent of the freedom to provide services, subject, however, to Article 61 and Articles 55 and 56, to which Article 66 refers . In turn, the scope of Articles 59 and 60 is defined by reference to the places where those providing the services and those for whom they are provided are established or reside .
6 . The third paragraph of Article 60 states :
"Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the State where the service is provided, under the same conditions as are imposed by that State on its own nationals ".
7 . The Court has consistently held that Articles 59 and 60 of the Treaty became directly applicable on the expiry of the transitional period, and their applicability is not subject to prior harmonization or coordination of the legislation of the Member States . ( 2 ) Those provisions require the elimination not only of all discrimination against a person providing the service by reason of his nationality but also of all restrictions on the freedom to provide services to which he is subject by reason of the fact that he is established in a Member State other than that in which the service is to be provided . ( 3 )
8 . As regards the rule on national treatment laid down in the third paragraph of Article 60, the Court has taken the view that, whilst the aim of that provision is "to enable the provider of the service to pursue his activities in the Member State where the service is given without suffering discrimination in favour of the nationals of that State ... it does not mean that all national legislation applicable to the nationals of that State and usually applied to the permanent activities of the undertakings established therein may be similarly applied in its entirety to the temporary activities of undertakings which are established in other Member States" ( Webb, paragraph 16 ).
9 . In the same judgment ( paragraph 17 ) the Court conceded that "regard being had to the particular nature of certain services, specific requirements imposed on the provider of the services cannot be considered incompatible with the Treaty where they have as their purpose the application of rules governing such activities" ( see also Van Wesemael, paragraph 28 ).
10 . However, the Court added that "the freedom to provide services is one of the fundamental principles of the Treaty and may be restricted only by provisions which are justified by the general good and which are imposed on all persons or undertakings operating in the said State in so far as that interest is not safeguarded by the provisions to which the provider of the service is subject in the Member State of his establishment" ( the principle of equivalence ) ( Webb, paragraph 17; see also Van Wesemael, paragraphs 28, 29 and 30 ).
11 . Furthermore, the requirements laid down by national legislation must be "objectively justified by the need to ensure that professional rules of conduct are complied with and that the interests which such rules are designed to safeguard are protected", as the Court stated in its judgment of 4 December 1986 concerning the freedom to provide services in the insurance industry . ( 4 ) In that judgment the Court added a further condition, namely "that the same result cannot be obtained by less restrictive rules" ( paragraph 29 ).
12 . In view of those requirements, the Court adopted an approach in the latter judgment which involved :
( 1 ) Determining the existence of an interest justifying certain restrictions on the freedom to provide the services in question;
( 2 ) Determining whether or not the public interest was already protected by the laws of the Member State of establishment;
( 3 ) Analysing the restrictive measure with a view to determining whether it was objectively necessary and whether the same result could have been achieved by less restrictive rules .
( b ) Directive 77/249/EEC
13 . Article 63 of the Treaty provided for a "general programme" to be drawn up for the abolition of restrictions on the freedom to provide services within the Community during the transitional period . That programme was approved by Council Decision of 18 December 1961, ( 5 ) and it was to be implemented by the adoption of directives .
14 . Of the directives adopted, some are intended to remove restrictions on the freedom to provide services during the transitional period; others are designed to introduce into the legislation of the Member States a number of provisions intended to facilitate the effective exercise of that freedom, in particular by means of the mutual recognition of professional qualifications and the coordination of legislation on the pursuit of activities as self-employed persons ( Articles 57, 63 and 66 )
15 . Directive 77/249/EEC on the exercise by lawyers of the freedom to provide services ( hereinafter referred to as "the directive ") falls into the latter category .
16 . Under the directive ( Article 2 ), the effective exercise of that freedom of course requires that each Member State should recognize as a lawyer the persons who practise that profession in the various Member States under any of the designations listed in Article 1 ( 2 ). The conditions for that mutual recognition, and for the exercise of the freedom to provide services, are laid down in Article 3 et seq . of the directive .
17 . Specifically with respect to activities relating to the representation of a client in legal proceedings or before public authorities, Article 4 ( 1 ) provides that such activities are to be "pursued in each host Member State under the conditions laid down for lawyers established in that State, with the exception of any conditions requiring residence, or registration with a professional organization, in that State ". And paragraph 2 of the same article adds that any lawyer pursuing those activities is to "observe the rules of professional conduct of the host Member State, without prejudice to his obligations in the Member State from which he comes ".
18 . In the present Treaty-infringement proceedings, the main issue is the interpretation of the second indent of Article 5 of the directive, which provides as follows :
"For the pursuit of activities relating to the representation of a client in legal proceedings, a Member State may require lawyers to whom Article 1 applies :
...
to work in conjunction with a lawyer who practises before the judicial authority in question and who would, where necessary, be answerable to that authority ..."
19 . The Commission' s reliance on that provision as a basis for the allegations made by it against the Federal Republic of Germany raises, as we shall see in greater detail in due course, a number of questions of interpretation : in the first place the scope of the obligation to "work in conjunction"; in the second place, determination of the types of, or conditions applicable to, work in conjunction which may be defined by a Member State that decides to impose such an obligation .
II - The national legislation
20 . The Federal Republic of Germany implemented the directive by means of the Law of 16 August 1980 ( hereinafter referred to as "the implementing law "), which governs the activities of lawyers providing services .
21 . It is with paragraph 4 of that law ( together with various procedural provisions and provisions of the laws on the exercise of the profession of lawyer and on the representation of parties in legal proceedings ) that the present action is concerned .
22 . That provision, which relates to the representation and defence of clients in legal proceedings by lawyers providing services, is worded as follows :
"1 . The persons listed in paragraph 1 ( 1 ) ( 6 ) may act as representative or defending counsel for a client in legal or administrative proceedings concerning criminal offences, infringements, faults committed in the course of duty or failure to fulfil professional obligations only if they act in conjunction with a lawyer who is himself an authorized representative or defending counsel . Furthermore, they may take part in oral proceedings or in a criminal trial only if they are accompanied by a lawyer . ... They may correspond with a person held in custody only through a lawyer .
2 . The work in conjunction required by subparagraph ( 1 ) must be proved each time a step is taken . Steps taken by the persons listed in paragraph 1 ( 1 ) in contravention of the provisions of that subparagraph in respect of which proof of work in conjunction has not been provided at the time when they are taken shall be null and void . During oral proceedings or in a criminal trial, work in conjunction will be presumed if the step taken is not immediately countermanded or amended by the lawyer .
3 . In cases in which representation by lawyers admitted to practise before the court hearing the case is mandatory, paragraph 52 ( 2 ) of the Bundesrechtsanwaltsordnung ( Federal Law on the profession of lawyer ) is to be applied by analogy ."
23 . Paragraph 52 ( 1 ) and ( 2 ) of the Bundesrechtsanwaltsordnung provides, with respect to representation by virtue of a power of attorney, that :
"1 . In cases in which representation by a lawyer is mandatory, the lawyer appointed as authorized representative may delegate his representative authority only to another lawyer who can also be appointed as an authorized representative .
2 . The lawyer appointed to act as authorized representative before the Court hearing the case may, during the oral proceedings, entrust to a lawyer who cannot be appointed as an authorized representative in his own right the task of explaining, with his assistance, the rights of his clients ".
III - The subject-matter of the proceedings
24 . Following the administrative phase of the proceedings, which is described in the Report for the Hearing, the Commission, not satisfied with the observations submitted by the Government of the Federal Republic of Germany, essentially confirmed all its allegations .
25 . The Commission' s complaints may be grouped under three headings :
( 1 ) The scope of the obligation to work in conjunction :
( a ) The implementing law requires lawyers providing services to work in conjunction with a German lawyer even in proceedings for which German law does not make representation by a lawyer mandatory ( paragraph 4 ( 1 ) of the implementing law );
( b ) The implementing law extends the scope of compulsory work in conjunction to contacts with persons held in custody even where representation by a lawyer is not mandatory .
( 2 ) Conditions concerning the obligation to work in conjunction ( paragraph 4 ( 1 ) and ( 2 ) ):
( a ) The German lawyer with whom the lawyer providing services must work in conjunction must himself be an authorized representative or defending counsel in the proceedings;
( b ) The lawyer providing services :
( i ) may act during oral proceedings or in a criminal trial only if accompanied by the German lawyer;
( ii ) as defending counsel may visit a person held in custody only if accompanied by the German lawyer and may not communicate with a person held in custody otherwise than through the German lawyer;
( c ) Work in conjunction must be proved whenever a step is taken; steps taken by the lawyer providing services, both those taken in contravention of the legal provisions on work in conjunction and those in respect of which proof of work in conjunction is not produced at the time when the step is taken, are null and void; during the oral proceedings or in a criminal trial, work in conjunction is presumed where the step in question is not immediately countermanded or amended by the German lawyer .
( 3 ) The analagous application of paragraph 52 ( 2 ) of the Bundesrechtsanwaltsordnung, provided for in paragraph 4 ( 3 ) of the implementing law .
In cases where clients must be represented by lawyers admitted to practise before the judicial authority in question ( territoriality of the right of representation ), the lawyer providing services is entitled only to submit observations during the oral proceedings, by delegation from a German lawyer admitted to practise before that judicial authority .
26 . I shall merely say that the German Government, in reply to the reasoned opinion, as well as defending its interpretation of the directive declared itself willing to consider the view that the work in conjunction provided for in Article 5 of the directive is required only in proceedings in which representation or defence of a client by a lawyer is required by law, and to review its legislation on certain matters relating to the conditions for such work in conjunction .
IV - Analysis of the Commission' s allegations
A - The extent of the obligation to "work in conjunction" with a German lawyer
( a ) Cases where representation by a lawyer is not mandatory
27 . The Commission considers that paragraph 4 ( 1 ) of the implementing law is incompatible with Community law in so far as it requires work in conjunction with a German lawyer in proceedings before Courts and in proceedings before administrative authorities exercising powers of a judicial nature for which domestic law does not make representation by a lawyer mandatory .
28 . According to the Commission, it follows from the second indent of Article 5 of the directive that that obligation may be imposed only where individuals may not personally represent themselves . Conversely, the German Government contends that that provision extends to all activities concerning representation of clients by a lawyer .
29 . It is to be noted that the second indent of Article 5 of the directive provides that each Member State may require lawyers providing services "to work in conjunction with a lawyer who practises before the judicial authority in question ...".
30 . The first argument upon which the German Government relies in its defence is based precisely on the literal wording of that provision : the main part of Article 5 defines its scope by means of a general reference to the "pursuit of activities relating to the representation of a client in legal proceedings", without in any way restricting it to matters for which representation by a lawyer is mandatory . According to the German Government, the literal argument which the Commission purports to derive from the reference to work in conjunction "with a lawyer who practises before the judicial authority in question" is the result of an unjustifiable confusion between the concept of a lawyer being "admitted to practise" before a particular judicial authority and that of "mandatory representation by a lawyer"; the fact that a lawyer is admitted to practise before a given court does not mean that representation by a lawyer is compulsory in the court in question . In fact, since paragraph 18 ( 1 ) of the Bundesrechtsanwaltsordnung provides that all lawyers must be admitted to practise before an ordinary court, it is the codes of procedure which, regardless of this question of the rules governing the profession, determine whether representation by a lawyer is mandatory .
31 . The Commission considers, however, that - since the directive must be interpreted in conformity with the Treaty - the requirement that the lawyer providing services must work in conjunction with a German lawyer in cases where German law does not make representation mandatory constitutes a restriction on the fundamental principle of the freedom to provide services which, under Article 59, should be eliminated and is in breach of the principle of equality of treatment with nationals laid down in the third paragraph of Article 60 . According to the Commission, it follows from the aim of those provisions of the Treaty and also from Articles 2 and 4 ( 1 ) of the directive that such equality of treatment must relate to the situation of national lawyers and not to that of non-specialist nationals .
32 . The Commission also considers that whenever a party is entitled to have himself represented or defended in legal proceedings by any third party, there is no legal reason or requirement relating to protection of the public interest which justifies preventing a lawyer providing services from acting alone for the purposes of representing his clients in legal proceedings .
33 . In that connection, the Commission mentions the following considerations .
( 1 ) A client will seek the services of a foreign lawyer only if he has particular reasons for doing so and if he thinks that that is the most advantageous course of action for him . Since, by virtue of the first sentence of paragraph 2 ( 1 ) of the implementing law ( and Article 3 of the directive ), the foreign lawyer' s professional designation in the language of his country of origin will indicate that he is not a German lawyer, the client, even if not a specialist, will be perfectly well able to assess the qualifications of the lawyer in question .
( 2 ) The intervention of a foreign lawyer seems more conducive to the proper conduct of the proceedings than representation by the person concerned on his own behalf; as far as the participation of non-specialists is concerned, the intervention of lawyers providing services is even more justified . Moreover, it is logical to conclude that most cases will concern representation of nationals of other Member States or legal problems relating to other Member States .
( 3 ) As a rule, a foreign lawyer will undertake to represent a client before a German judicial authority only if he is fluent in German and is sufficiently well acquainted with the German legal system .
If he does otherwise, he will be in breach of the rules of professional conduct - which in this respect are similar in all the Member States - that he is bound to observe by virtue of Article 4 ( 2 ) of the directive .
( 4 ) It is not apparent why the proper functioning of the German judicial system should be disturbed by the provision of services which, by their very nature, are occasional or temporary .
34 . With respect to these aspects of the problem, the Government of the Federal Republic of Germany defends itself against the Commission' s allegation by stating in particular that :
( 1 ) Even where representation by a lawyer is not mandatory, it is convenient for the parties and the Court to communicate with each other through a representative whose professional training and experience ensure that he is thoroughly familiar with German law, and, in particular, with the rules of procedure and customs of the Courts .
It is for that reason that the German legislation keeps the participation of unqualified persons to the minimum possible; such persons may participate only in exceptional cases where there are judicial reasons for their doing so and their participation does not become a regular activity .
( 2 ) It is in the interests of the client - even in proceedings for which it is not mandatory to instruct a lawyer - for the person providing services to be precluded from acting without the support of a German lawyer . In administrative, fiscal, social and conciliation proceedings before lower courts, in which representation by a lawyer is not mandatory, the courts would not have to fulfil their obligations regarding explanation of the case to the same extent for a lawyer as for a party who is not represented or, at least, is not represented by a lawyer .
( 3 ) The provisions of German procedural law which authorize representation by persons with the capacity to be parties to proceedings are intended above all to guarantee the parties the possibility of defending their cases themselves .
The law on representation in proceedings before courts lays down a general prohibition on appearing professionally before courts, except in the case of lawyers and certain other agents, in specified circumstances, so that the class of representatives permitted to act in proceedings for which representation by a lawyer is not mandatory is limited to those who act not on a professional basis but only in individual cases and without the intention to continue to do so in the future .
In those circumstances, lawyers of other Member States, who by definition act in a professional capacity, are not placed in a less favourable position than unqualified persons, whether German or foreign .
35 . In view of those arguments put forward by the German Government, I must draw a distinction between two concepts which, although distinct, are close to each other and partially overlap .
36 . The Commission adopted as its points of reference for defining the limits of the authority granted to the Member States by the second indent of Article 5 the question of mandatory representation by a lawyer .
37 . That concept must be construed as the obligation imposed on the parties to proceedings to seek the services of a lawyer, in order either to submit pleadings in the course of the procedure or to present oral argument before a court . The obligation to have oneself represented or assisted by a lawyer thus entails the result that a party may not act for himself in legal proceedings or instruct someone other than a lawyer to do so .
38 . In Germany, representation by a lawyer is, in principle, mandatory in civil and criminal proceedings, except, mainly, in lower courts or in the case of minor offences; by contrast, in contentious-administrative, fiscal, social and labour proceedings, representation by a lawyer is, in principle, mandatory only before the highest courts .
39 . In cases where representation by a lawyer is mandatory, there exists, in the nature of things, a legal monopoly in favour of lawyers for the representation of parties in legal proceedings : only lawyers - and also professors of law in proceedings before criminal courts - are entitled to represent parties in legal proceedings .
40 . In other cases, the existence of a legal monopoly does not of itself deprive a party of the right to conduct litigation on his own behalf; it only means that where a party has himself represented in legal proceedings he cannot be represented by third parties who are not lawyers .
41 . Outside the area of mandatory legal representation, the lawyers' legal monopoly in Germany applies to activities carried on, in a professional capacity, in civil proceedings, with respect to the oral phase of the procedure; in criminal proceedings, lawyers and professors of law have a monopoly and the same applies to constitutional matters; in social, labour, tax and administrative matters of a contentious nature, the monopoly is limited, and in general parties may be represented, as appropriate, by persons such as trade union and employers' representatives, representatives of farming associations and of associations of war victims, tax advisers, accountancy experts and civil servants or legal agents of public administrative authorities .
42 . In addition, the law on representation before the courts lays down a general prohibition which, in principle, is applicable to any non-lawyer third party, preventing him from acting, in a professional capacity, in any legal proceedings . However, the intervention of other persons, such as notaries, accountancy experts, administrators of assets, and so forth, acting within their terms of reference, is permitted .
43 . In the light of all the foregoing considerations, I can now give my opinion on the first of the allegations made by the Commission concerning the German legislation .
44 . In my view, the German Government' s defence does not appear to be well founded .
45 . By this I mean that it does not seem to me, in principle, that the requirement contained in the implementing law that a lawyer providing services must work in conjunction with a Rechtsanwalt whenever he represents a client before a court is compatible with the Treaty or with the Directive of 22 March 1977 .
46 . It is true that the text of the directive does not provide a sound basis for any distinction which might indicate that the legislature sought to limit the scope of the powers conferred on the Member States by Article 5 .
47 . But, as has been seen, the directive must be interpreted in the light of the provisions of the Treaty on the freedom to provide services and of the underlying principles .
48 . Applying those principles to the present case, I do not consider that, as regards the cases where representation by a lawyer is not mandatory, the German legislation fulfils the conditions which the Court has laid down for the "specific requirements" imposed upon the person providing services to be considered compatible with the Treaty . It is to this that the directive refers when it allows the requirement to be imposed upon lawyers that they should "work in conjunction" with a domestic lawyer .
49 . In fact, in such cases, the German law not only allows a party to conduct his own defence in legal proceedings but also allows him to have himself represented by a non-specialized third party, provided that the latter does not act in a professional capacity .
50 . The lawyer' s legal monopoly is thus confined to activity in a professional capacity .
51 . It therefore is clear that the requirements of the public interest in ensuring the proper administration of justice ( the first condition imposed by the Court ) are much more tenuous here than in the case of proceedings where representation by a lawyer is mandatory - which are of course those of the greatest importance and seriousness - whereas, as far as the legal monopoly is concerned, considerations relating to defence of the profession prevail .
52 . In addition, other legislation contributes effectively in other ways to ensuring, in such cases, that that public interest is safeguarded, so that the restriction in question is objectively not required in order to achieve the desired result ( second and third conditions laid down in the decisions of the Court ).
53 . In fact, Article 4 ( 2 ) of the directive provides that "a lawyer pursuing these activities shall observe the rules of professional conduct of the host Member State, without prejudice to his obligations in the Member State from which he comes" ( see paragraph 10, supra ).
54 . Moreover, the lawyer is covered by the legislation on civil and criminal liability .
55 . For the rest, the Commission' s arguments, which I summarized earlier in paragraph 33, appear to me to be essentially well founded .
56 . Only in that way will it be possible not only to be faithful to the principles laid down in the Treaty regarding freedom to provide services but also to contribute to the achievement, in this area, of the objectives of the directive .
57 . Indeed, the directive is intended to ensure ( Article 2 ) that each Member State should recognize as a lawyer those persons who, in the other Member States, are authorized to practise as such and that they should do so in such a manner that the activities involved in representing and defending a client in legal proceedings or before public authorities are performed under the same conditions as those laid down for lawyers established in the host State ( Article 4 ( 1 ) ), without prejudice to the specific conditions which are permitted .
58 . The essential point is - and here I conclude this part of my opinion - that the obligation to work in conjunction imposed by the German legislation should be limited to "legal proceedings" ( Article 5 of the directive ), that is to say, proceedings involving judicial authorities .
59 . According to the German Government, this is what follows from paragraph 4 ( 1 ) of the implementing law, where it refers to "administrative proceedings concerning criminal offences, infringements, faults committed in the course of duty or failure to fulfil professional obligations", which the Commission appears to have accepted in its application ( page 14 ). Although in its reply the Commission seems to have cast doubt upon the compatability with the directive of the reference in paragraph 4 ( 1 ) to administrative proceedings, the allegation which that appears to imply is clearly out of time, and should therefore be disregarded .
( b ) - Contacts with persons held in custody
60 . The Commission criticizes the Federal Republic of Germany for the fact that the second sentence of paragraph 4 ( 1 ) extends the obligation to work in conjunction with a German lawyer to visits and communication with persons held in custody even in those cases where the latter can be defended by a spokesman ( Vertrauensmann ) who is not a German lawyer .
61 . I do not think that, essentially, it is right to do so .
62 . In fact, since visits to and communication with persons held in custody are indiscutably included in the field of "activities relating to the representation of a client in legal proceedings", they are covered by Article 5 of the directive .
63 . The obligation to work in conjunction with a German lawyer may therefore in principle be applied to such contacts .
64 . However, it must be limited to cases where representation by a lawyer is mandatory, and therefore, regardless of the view taken of the conditions laid down by the German legislature, the Commission' s complaint in that respect must, in my opinion, be partially upheld .
B - The terms applicable to work in conjunction with a German lawyer
65 . Having analysed the problem of the scope of the obligation to "work in conjunction" laid down in the German legislation, I shall now consider the Commission' s allegations regarding the terms applicable to work in conjunction laid down by that legislation .
66 . Resolution of this problem requires clarification of the meaning of the expression "work in conjunction" used in the second indent of Article 5 of the directive - the directive does not give the least indication of its meaning .
67 . Nevertheless, it is a concept of Community law and the definition of its scope could not have been left entirely to the discretion of the Member States; it must be appraised according to the same interpretative criteria as those used for determining the extent of the obligation laid down in that provision .
68 . This means that, being a concept of Community law, it must be interpreted independently and in accordance with the Treaty, in conformity with the approach laid down in the previous decisions of the Court, to which I referred earlier .
69 . Of course, in so far as it affects one of the principal foundations of the Treaty, that concept must be interpreted strictly, as the Court has consistently held . ( 7 )
70 . In particular, for a "specific requirement" like this one, which is imposed upon lawyers providing services by virtue of the special nature of the activity pursued, to be considered compatible with the Treaty, the following conditions must be satisfied : ( 8 )
It must reflect a general interest which is not safeguarded by the rules to which the provider of the service is subject in his own Member State;
It must be objectively necessary in order to ensure compliance with rules of professional conduct and to ensure protection of the interests with which it is concerned;
The same result must not be attainable by less restrictive rules .
71 . How can these principles be applied to a general definition of the concept of working "in conjunction"?
72 . Let me start by saying that the various language versions of the directive diverge as regards the way in which this concept is expressed : certain versions appear to require an agreement between the lawyers concerned, whereas others do not necessarily imply such a requirement .
73 . The expression must, however, be interpreted uniformly having regard to the objectives and general scheme of the directive . ( 9 )
74 . It seems clear that the reasons for the obligation to "work in conjunction" laid down in the directive are associated with the public interest in ensuring the proper administration of justice, in cases involving the participation of lawyers trained under other legal systems .
75 . The obligation to "work in conjunction" will thus be understood as a way of supporting or orientating the lawyer providing services by means of co-operation with a national lawyer, trained and established in the country where the service is to be provided .
76 . The central feature of this obligation to "work in conjunction" therefore appears to lie in the professional collaboration or cooperation of the two lawyers, which is designed to compensate for any gaps in knowledge of the German legal system and any lack of experience of German procedure, so as to ensure that the client' s case is properly conducted before the court .
77 . If that is the case, there is justification for leaving the lawyers to agree upon the terms on which they are to work in conjunction . They are both obliged to observe the rules of professional conduct of the host Member State, without prejudice, as regards the provider of services, to the obligations to which he is also subject in his own Member State; both are in a position, whilst complying with their ethical rules and exercising their professional independence, to agree upon the basis of cooperation appropriate to the instructions given to them .
78 . It may even be considered that it was the legislature' s intention, in leaving the term "work in conjunction" undefined, to rely upon an agreement between the lawyers for determination of the basis thereof; and that seems to be the solution adopted in the legislation of the majority of the Member States .
79 . I would not, however, go so far as to say that the Member States are precluded from laying down the general framework for work in conjunction, provided that they do so in harmony with the principles to which I have referred .
80 . A Member State must therefore limit the obligations which it imposes to what is objectively necessary in order to render the professional cooperation effective; in particular, the terms laid down for working in conjunction must not make the lawyer providing services into a mere assistant of the national lawyer or place him in a subordinate position as regards conduct of the case with which he is to deal .
81 . Identical considerations must apply, mutatis mutandis, to the proof of work in conjunction and determination of any liability attaching to the national lawyer before the competent judicial authority .
82 . It should also be pointed out that, in practice, regardless of the obligation to "work in conjunction", a lawyer of a Member State confronted by problems relating to the laws of another Member State invariably contacts, of his own volition, a colleague established in that Member State, and agrees upon a proper basis for cooperation with him .
83 . Having regard to these general considerations, it is not difficult to resolve the problems raised by the Commission' s allegations concerning the terms laid down by the German legislation for work in conjunction .
84 . The Commission criticizes the terms imposed by the German legislation for work in conjunction essentially under four headings :
( 1 ) The obligation of the lawyer providing services to work in conjunction with a German lawyer who, in the proceedings in question, is himself the authorized representative or defending counsel ( first sentence of paragraph 4 ( 1 ) of the implementing law ).
( 2 ) The need to be accompanied by the German lawyer during oral proceedings and criminal trials ( second sentence of paragraph 4 ( 1 ) of the implementing law ).
( 3 ) The obligation to prove that the lawyers have worked in conjunction regarding every step in the procedure, when that step is taken, failing which it will be void . However, "during the oral proceedings or in a criminal trial, work in conjunction will be presumed if the step is not immediately countermanded or amended by the Rechtsanwalt ( paragraph 4 ( 2 ) of the implementing law )".
( 4 ) The obligation to arrange to be accompanied by a German lawyer when visiting persons held in custody and the prohibition of corresponding with them otherwise than through such a lawyer ( end of the second sentence of paragraph 4 ( 1 ) ).
85 . In general terms, the Commission considers that, by laying down those terms, the implementing law exceeds the limits determined by the Treaty and the directive, going further than is required by the need to work in conjunction .
86 . For its part, the German Government refers to the fact that, as is permitted by the second indent of Article 5 of the directive, the German lawyer assumes full responsibility before the judicial authority in question, and the terms for work in conjunction laid down in paragraph 4 ( 1 ) and ( 2 ) of the implementing law are necessary to enable the German lawyer fully to discharge that responsibility .
87 . In particular, the dynamics of legal proceedings, requiring immediate reactions and appropriate measures on the part of the client' s agent, depend to a very great extent upon the intervention of authorized representatives or defending counsel acting in a professional capacity who are thoroughly acquainted with the national legal order, and a lawyer providing services does not satisfy that requirement .
88 . In the German Government' s view, the inadequacies of the background of the foreign lawyer would not be compensated for by intervention by the judge in the preparation of the case, in view of the latter' s duty of impartiality and of the principle governing German civil procedure whereby the Court must adjudicate on the case as presented to it by the parties .
89 . In short, the German Government claims that if it did not apply such rules, the German lawyer would be reduced to the role of mere adviser or assistant to the provider of services, and would not be in a position to assume his responsibility towards the court in question .
90 . In evaluating that argument, I shall first try to determine the extent of that responsibility vis-à-vis the court which the directive allows to be imposed upon the national lawyer in appropriate cases .
91 . It is apparent from the letter and the spirit of the second indent of Article 5 of the directive that that responsibility relates to the "work in conjunction" itself . Moreover, the responsibility referred to in the directive is responsibility to the competent court and not to the parties .
92 . It seems, therefore, that the requirement which a Member State will be entitled to include in that connection in its legislation is that the national lawyer is to be responsible for proving that the lawyer providing services fulfils the necessary conditions and has the requisite qualifications to practise in his country in courts of a corresponding level, and for proving due compliance with the rules of professional conduct .
93 . That responsibility will, at most, be of a disciplinary nature .
94 . The assumption of such responsibility does not appear to require the imposition of the conditions with which the Commission' s action is concerned, at least as regards the first three allegations .
95 . Indeed, in the case of the first allegation, it must be considered - the view taken by the Commission - that the obligation for a client to appoint two representatives is an additional burden resulting in an obstacle to the freedom to provide services which goes beyond the need to work in conjunction . The choice of such a basis for cooperation between lawyers must not therefore be imposed, but should be left to be agreed upon by the various parties ( client and lawyers ). Moreover, the text of the directive contains nothing which is conducive to the appoach adopted in the German legislation; on the contrary, in so far as mention is made only of working in conjunction "with a lawyer who practises before the judicial authority in question", a contrary conclusion must be drawn .
96 . Likewise, the requirement of the constant physical presence of the German lawyer appears clearly to be disproportionate to the obligation to work in conjunction, and moreover it is clearly described in the second sentence of paragraph 4 ( 1 ) of the implementing law as a requirement supplementary to work in conjunction on a "normal" basis .
97 . Finally, the requirement that work in conjunction should be proved for each step taken places the lawyer providing services in a strait-jacket : it completely nullifies his independence, preventing him from taking any valid steps in his own right within the limits of work in conjunction, negates the responsibility attached to him by his rules of professional conduct and makes it wholly impossible for the proof of work in conjunction to be provided before he begins to act and to remain valid until withdrawn .
98 . In a word, it seems clear that any responsibility attaching to the German lawyer regarding work in conjunction with the provider of services could be ensured by less restrictives methods than those provided for in the German legislation .
99 . What in fact happened was that, from the extensive arsenal of weapons of deterrence designed to provide protection against ignorance of national law, the German legislation went straight for the nuclear weapon when conventional weapons would have sufficed .
100 . The position regarding the matter of contact with persons held in custody seems to me to be different .
101 . Here, compelling reasons relating to the public interest - and in particular to matters of security - may justify the imposition, for visits to and correspondence with persons held in custody, of work in conjunction of the kind provided for in the implementing law, allowing the German lawyer to oversee those activities closely and to assume responsibility accordingly .
102 . However, in my opinion, that does not mean that the provision in question is entirely proof against the Commission' s allegation . It imposes the conditions to which I have referred indiscriminately, whereas it should limit them to cases where they are required by the public interest, and in particular for the purpose of ensuring public security . Those cases could, for example, be defined by reference to the legal classification of the offences involved .
C - The application by analogy of paragraph 52 ( 2 ) of the Bundesrechtsanwaltsordnung ( territoriality of the right to practise before judicial authorities )
103 . According to the Commission, by providing for the analogous application of paragraph 52 ( 2 ) of the Bundesrechtsanwaltsordnung, paragraph 4 ( 3 ) of the implementing law lays down the condition that, in cases for which German law requires a client to be represented by a lawyer admitted to practise before the judicial authority in question, the lawyer providing services is merely entitled to submit observations during the oral phase of the procedure, by delegation from a German lawyer admitted to appear before that authority .
104 . That, it is said, is the result of the combined provisions of subparagraphs ( 1 ) and ( 2 ) of paragraph 52 .
105 . That limitation, which is rather more burdensome than the procedure for working in conjunction laid down in paragraph 4 ( 1 ) and ( 2 ) of the implementing law, is said ultimately to apply, pursuant to paragraph 78 ( 1 ) of the German Code of Civil Procedure, to the great majority of civil cases, namely all those heard by any Landgericht and the courts superior thereto ( the Oberlandesgerichte, the Bayerische Oberstes Landesgericht and the Bundesgerichtshof ), and before the Familiengerichte in matters of family law .
106 . The Commission considers that, by virtue of Article 5 of the directive, lawyers' freedom to provide services cannot be restricted to explanations in the oral phase of the procedure, by delegation from the lawyer admitted to appear before the court in question .
107 . The Commission' s allegation appears to be inspired by the Webb judgment in which, after pointing out that the principal aim of the third paragraph of Article 60 of the Treaty is to enable the provider of the service to pursue his activities in the Member State where the service is provided without suffering discrimination in favour of the nationals of that State, the Court observes that that principle of non-discrimination does not, however, mean "that all national legislation applicable to nationals of that State and usually applied to the permanent activities of undertakings established therein may be similarly applied in its entirety to the temporary activities of undertakings which are established in other Member States" ( paragraph 16 ).
108 . Bearing that in mind, the Commission considers that lawyers providing services should be placed on the same footing as a German lawyer admitted to appear before the court before which they intend to discharge their duties, without prejudice to the work in conjunction provided for in Article 5 of the directive .
109 . The Commission seeks to show that lawyers providing services would not thereby enjoy the same privileged position as their German colleagues .
110 . In the first place, the position of the lawyer providing services is not the same as that of the German lawyer .
111 . The centre of the German lawyer' s professional activity is the place where he is established in Germany and the fact of his being admitted to appear before at least one of the courts in his locality reflects in general the requirements of his professional practice and of his clients; by contrast, a lawyer going to the Federal Republic of Germany to provide a service is in a different position, by virtue of the fact that he has no establishment in that country and is not admitted to practise before any of its courts .
112 . Furthermore, the services are of a different nature precisely because they are provided by a lawyer who operates in his own country, in his own chambers .
113 . Finally, the Commission maintains that the interest in ensuring the proper administration of justice does not justify the limitation laid down by the German legislation . In that connection, it refers to the practice so far adopted and to the forecasts which may reasonably be made regarding the extent to which services will in future be provided by lawyers in other Member States . It also mentions the fact that a lawyer providing services must elect an address for service at the chambers of a German lawyer whenever he participates in legal proceedings, and concludes that the link between the court and the lawyer, which is necessary for the proper conduct of the proceedings, is thereby sufficiently ensured . To make doubly sure, a rule could be adopted that the address for service would without fail have to be the chambers of a German lawyer admitted to practise before the judicial authority in question .
114 . For its part, the German Government states that the principle of allowing lawyers to practise only in specified localities was introduced in the interests of the proper administration of justice, being designed to foster communication between lawyers and the courts and to facilitate the rapid and proper conduct of proceedings . In view of that principle and by virtue of paragraph 72 ( 1 ) of the Code of Civil Procedure, a German lawyer cannot be an authorized representative in civil proceedings unless he is admitted to practise before the court where they are to be heard; if he wishes to participate in the proceedings, he must then abide by the division of powers provided for in paragraph 52 ( 2 ) of the Bundesrechtsanwaltsordnung . In those circumstances, paragraph 4 ( 3 ) of the implementing law merely represents the application to lawyers providing services of the same conditions as those to which German lawyers are subject, and it does not therefore constitute an infringement of Community law . On the other hand, if the lawyer providing services were to be placed in the same position as a lawyer admitted to practise before the judicial authority in question, it would be the German lawyers who would be placed at a considerable disadvantage by comparison with their colleagues from other Member States . In that connection, the German Government cites the particularly striking example of the Bundesgerichtshof, before which only 22 specialized German lawyers are admitted to practise - their right to act in legal proceedings as an authorized representative would be extended outright to all lawyers from the other Member States .
115 . It seems to me that, having regard to the present state of development of Community law, the Commission' s complaint in this respect should not be upheld .
116 . As the Court held in its judgment in Klopp of 12 July 1984, 10 "in the absence of specific Community rules in the matter each Member State is free to regulate the exercise of the legal profession in its territory ".
117 . In the same judgment ( paragraph 20 ) it is also stated that "In view of the special nature of the legal profession ... the second Member State must have the right, in the interests of the due administration of justice, to require that lawyers enrolled at a Bar in its territory should practise in such a way as to maintain sufficient contact with their clients and the judicial authorities and abide by the rules of the profession ".
118 . It is true that those statements referred to a case concerning the right of establishment .
119 . The principles laid down are, however, capable of transposition to the field of freedom to provide services, where the rule corresponding to that contained in paragraph 52 ( 2 ) is the principle of equality of treatment or of non-discrimination embodied in the third paragraph of Article 60 of the Treaty .
120 . But the requirements laid down in national legislation must not prevent the nationals of other Member States from effectively exercising the right of establishment guaranteed them by the Treaty ( Klopp, end of paragraph 20 ).
121 . In the case of lawyers established in other Member States, they can exercise their freedom to provide services on the same terms as any German lawyer who is not admitted to practise before the court in question . The parallel is particularly striking by virtue of the fact that Germany is a federal State where lawyers move about in order to pursue their activities before courts in different Laender .
122 . In this case, therefore, the legislation applies indiscriminately to German nationals and to the nationals of other Member States and "its provisions and objectives do not permit the conclusion that it was adopted for discriminatory purposes or that it produces discriminatory effects ". 11
123 . Moreover, if they exercise their right of establishment in Germany, lawyers from other Member States will be entitled to be admitted to practise before a German court; they will then be governed by the same conditions as their German colleagues, and be subject to exactly the same restrictions . Furthermore - and here I follow the Commission' s line of argument - they would escape those restrictions if, instead of establishing themselves, they confined themselves to providing services from time to time . This would then bring about a situation of the kind which, according to the Court' s judgment of 3 December 1974 in Van Binsbergen, 12 could be lawfully avoided by the application of rules applicable to all people established within the territory of the Member States where the service was provided .
124 . In addition, if it were the case that the Community already constituted a single judicial area, the establishment of a principle of localization at Community level would not necessarily leave lawyers in a worse situation than that in which lawyers providing services now find themselves ( although in such circumstances it would not be possible to speak of the provision of services in the Community sense ).
125 . The Commission conceded, in its reply, that it would be conceivable to exclude from its criticism the situation with regard to the Bundesgerichtshof . However, there does not appear to be any sufficiently convincing justification for applying two different criteria in that way .
V - Conclusion
126 . Accordingly, I propose that the Court should declare that the Federal Republic of Germany has failed to fulfil its obligations under Articles 59 and 60 of the Treaty and Council Directive No 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services, in so far as it :
( a ) Obliges a laywer from another Member State who, by way of provision of services, pursues in the Federal Republic of Germany activities relating to the representation and defence of a client in legal proceedings to act in conjunction with a German lawyer in those cases in which German law does not make representation by a lawyer mandatory;
( b ) Requires that the German lawyer in conjunction with whom the lawyer providing services is to work should be the authorized representative or defending counsel in the proceedings;
( c ) Prohibits the lawyer providing services from taking part in the oral proceedings or in a criminal trial unless he is accompanied by the German lawyer;
( d ) Requires that the work in conjunction should be proved in relation to every step taken, failing which the step in question is considered null and void;
( e ) In all circumstances, and not only when compelling reasons of public interest so justify, prohibits the lawyer providing services from visiting a person held in custody unless he is accompanied by the German lawyer and from corresponding with a person held in custody otherwise than through that lawyer .
127 . In other respects, the application must be dismissed .
128 . Since the Federal Republic of Germany has failed in the majority of its submissions, I consider that it should pay all the costs .
(*) Translated from the French .
( 1 ) Official Journal 1977, L 78, p . 17 .
( 2 )
Judgment of 12 December 1974 in Case 36/74 Walrave (( 1974 )) ECR 1405; Judgment of 18 January 1979 in Joined Cases 110 and 111/78 Van Wesemael (( 1979 )) ECR 35; Judgment of 17 December 1981 in Case 279/80 Webb (( 1981 )) ECR 3305 .
( 3 )
Van Wesemael, paragraph 27, and Webb, paragraph 14 .
( 4 )
Judgment of 4 December 1986 in Case 205/84 Commission v Germany (( 1986 )) ECR 3755, paragraph 29 .
( 5 )
Official Journal, English Special Edition, Second Series No IX, p . 3 .
( 6 )
Paragraph 1 ( 1 ) of the implementing law repeats word for word the list of designations contained in Article 1 ( 2 ) of the directive under which the profession of lawyer may be practised in the various Member States .
( 7 )
See, for example, with respect to the first paragraph of Article 55, Case 2/74 Reyners (( 1974 )) ECR 631, paragraphs 33 and 43; and, with respect to Article 48 ( 4 ), Case 149/79 Commission v Belgium (( 1980 )) ECR 3881, paragraphs 19 and 22 .
( 8 )
See supra, paragraph 12 .
( 9 )
Case 30/77 Regina v Bouchereau (( 1977 )) ECR 1999, paragraph 14; see also Case 80/76 Kerry Milk (( 1977 )) ECR 425; Case 11/76 Netherlands v Commission (( 1979 )) ECR 245, and Federal Republic of Germany v Commission (( 1979 )) ECR 343; and Case 9/79 Koschmiske v Raad van Arbeid (( 1979 )) ECR 2724, summary .
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