Judges L Bay Larsen (Rapporteur), C Toader, M Safjan, N Jääskinen
Advocate General P Pikamäe
The applicant was a party in appeal proceedings before the Supreme Court, Ireland, which made a reference to the Court of Justice of the European Union for a preliminary ruling. The applicant represented himself before the Supreme Court, but was represented by a German lawyer in the proceedings before the Court of Justice. Following the delivery of that court’s judgment, the applicant wished to engage the German lawyer to represent him on the return of the case to the Supreme Court. Under Irish law transposing article 5 of Council Directive 77/249/EEC (the legal services Directive), a visiting lawyer was required to work in conjunction with a lawyer registered with the Bar of Ireland. The role of the domestic lawyer consisted in assisting the visiting lawyer in terms of knowledge or advice on national law, practice and ethics. Under the Irish common law system, in contrast with the legal systems in most other member states, the bulk of the legal research in a particular case was carried out by the parties rather than by the judicial authority, unless the litigant was a litigant in person, in which case the judicial authorities assumed such responsibility. The Supreme Court, Ireland, stayed the proceedings and referred to the Court of Justice for a preliminary ruling the question, in essence, whether the national legislation was compatible with EU law, in particular article 5 of Directive 77/249, in so far as it required a visiting lawyer to use the services of a domestic lawyer, including in proceedings in which the party had been a litigant in person.
On the reference—
Held, the obligation imposed by the Irish legislation for a visiting lawyer to work in conjunction with a domestic lawyer constituted a restriction on the freedom of lawyers from other member states to provide services under article 56 TFEU. However, the respective obligations on the parties and the courts in relation to the relevant legal rules in proceedings before the Irish courts were not the same depending on whether the litigant conducted their own case or was represented by a lawyer since, in the latter case, the onus was on the lawyer to carry out any necessary legal research and to answer legal questions, whereas that task fell to the judicial authority in the former case. Since those obligations were different, the fact that the objective of the proper administration of justice could be attained where the party conducted their own defence did not permit the inference that that objective was attained where the party was assisted by a visiting lawyer, within the meaning of Directive 77/249, where the procedural rules were more restrictive. In such a case, the objectives of the national legislation, which included the protection of litigants as consumers and the proper administration of justice, constituted overriding requirements in the public interest capable of justifying the restriction on the freedom to provide services that was caused by the legislation. Further, in a system in which the sole purpose of the domestic lawyer was to assist the visiting lawyer, the obligation under the Irish legislation was not disproportionate, in the light of the objective of the proper administration of justice. However, where the general obligation to work with a domestic lawyer did not allow account to be taken of the experience of the visiting lawyer, the obligation went beyond what was necessary to attain that objective, in that, for example, the visiting lawyer might be capable of representing the litigant in the same way as the domestic lawyer, which was for the referring court to ascertain. Accordingly, in a legal system such as that in Ireland, where the duties of a lawyer representing a client were different from the duties of a litigant in person, article 5 of Directive 77/249 did not preclude a requirement that a visiting lawyer had to work in conjunction with a domestic lawyer who was answerable to the judicial authority. That requirement was not disproportionate, in the light of the objective of the proper administration of justice, unless it did not allow account to be taken of the experience of the visiting lawyer (judgment, paras 19, 22, 23, 27–32, 35, 40, operative part).
B Ohlig for the applicant, VK.
P Leonard SC and W Abrahamson (instructed by E Gilson and D Spring, Solicitors) for The General Council of the Bar of Ireland.
M Collins SC (instructed by C Callanan and S McLoughlin, Solicitors) for The Law Society of Ireland and the Attorney General.
M Gray SC and R Mulcahy SC (instructed by M Browne, G Hodge, J Quaney and A Joyce, agents) for Ireland.
J Rodríguez de la Rúa Puig, agent, for the Spanish Government.
H Støvlbæk, L Malferrari and L Armati, agents, for the European Commission.