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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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