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GAZETTE
DECEMBER 1988
Germany arose wh en a non-
German lawyer providing services
proposed to "represent or defend
a c l i en t" in legal proceedings or
certain administrative proceedings.
The Commission argued that this
was too broad an interpretation of
t he
' c o - o p e r a t i o n'
c o n c e pt
con t a i ned in Ar t i c le 5 of the
Directive. It embraced not only
activities in judicial proceedings but
also
activities before administrative
au t ho r i t i es and c o n t a ct w i t h
persons in custody. It was further
contended by the Commission that
in cases where representation by a
German lawyer was not mandatory
in judicial proceedings (i.e., where
a party could conduct his/her own
case or engage another lay person
to do so), a non-German lawyer
acting should not have to work in
' c o n j u n c t i o n' w i t h a Ge rman
lawyer.
The Court accepted this argu-
ment. There were no considera-
tions of general interest which
could, in relation to those judicial
proceedings where representation
by a lawyer is not mandatory,
justify the obligation imposed on a
lawyer enrolled in another Member
State and providing his professional
services in Germany to work in
conjunction wi th a German lawyer.
The German law of 1980, by
extending such an obligation to
legal proceedings, was contrary to
the Directive and Articles 59 and
60 of the Treaty, the aim of wh i ch
is to enable a person wishing to
provide services to pursue his
activities in the host State wi t hout
discrimination in favour of nationals
of that State.
(2) De t a i l ed Rules of
Co - ope r a t i on:
The Commission argued that the
definition of co-operation contained
in the German law exceeded the
limits set by the Directive and
Articles 59 and 60 of the Treaty.
In particular, the Commission felt
that the requirement relating to
(i)
Evidence of co-operation,
(ii) The role assigned to the
German lawyer w i th wh om
there must be co-operation,
and
(iii) Contacts between the lawyer
p r ov i d i ng
se r v i ces
and
persons in custody,
ex ceeded t he t e rms of t he
Directive.
The Court decided that the
German law imposed on the
German and non-German lawyer
required to work together obliga-
tions which went beyond what was
necessary to achieve the aim of the
duty of co-operation.
Neither the continuous presence
of a German lawyer in Court nor the
requirement that the latter must
himself be the representative or
counsel for the defence, nor the
detailed provisions conce r n i ng
p r oof of c o - o p e r a t i on
we re
generally indispensable or even
useful in giving the necessary
support to the lawyer providing
services.
In an interesting statement, the
Court referred to the notion of
" a n s w e r a b i l i t y" of a German
lawyer and considered that the
foreign lawyer was answerable to
the Court before which the pro-
ceedings had been issued and not
to the client. The question of the
non-German lawyer's
knowledge
of
German law
was
a matter between
him and his client.
The Court did, however accept
the submission of the German
Government that there might be
over-riding considerations which it
was for the Member State to
appraise, which might induce that
State to regulate the contact
between lawyers and the person in
custody. However, the restrictions
imposed by German law went
further than was necessary.
(3) Te r r i t o r i al l i m i ts on
r ep r e s en t a t i on
Under German law, lawyers have to
be admitted separately to appear
before different types of Courts.
Where representation by a lawyer
is mandatory before a Court, the
lawyer must therefore be admitted
to practise before the Court con-
cerned. If not admitted, he can only
appear w i th the assistance of an
admitted lawyer.
The Commission took the view
that Article 5 of the Directive only
required that the lawyer providing
his services must work in con-
junction w i th a lawyer admitted to
practise before the Court. However,
it maintained that this did " n o t
allow those services to be limited
to explanations in the course of the
oral procedure, made w i th the
assistance of the lawyer admitted
to practise before the Court as is
laid down by the German legislation
in respect of all civil proceedings
above a given level of magnitude".
The question the Commission
add r essed to t he Cou rt was
whether Germany was entitled to
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