The Gazette 1988

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:

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. 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 (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

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

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