Re Lawyers' Services: E.C. v. Commission France (Case C-294/89) Before the Court of Justice of the European Communities ECJ

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1 Re Lawyers' Services: E.C. v. Commission France (Case C-294/89) Before the Court of Justice of the European Communities ECJ (Presiding, Due C.J.; O'Higgins, Moitinho de Almeida and DÍez de Velasco PP.C.; Kakouris, Schockweiler, Grévisse, Zuleeg and Kapteyn JJ.) Sig. Giuseppe Tesauro, Advocate General. 10 July 1991 Action for a declaration, under Article 169 EEC. Provisions considered: EEC 59, 60 Dir. 77/249 (Arts. 1(2), 2, 5) Services. Lawyers. Reverse discrimination. Nationality. Under Articles 1(2) and 2 of the Lawyers' Services Directive 77/249 lawyers qualified to practise in one member-state are entitled to provide lawyers' services in any other member-state, even if they have the nationality of the latter. [11] Services. Lawyers. Local lawyer rule. A lawyer covered by the Lawyers' Services Directive 77/249 who wishes to act before authorities or bodies which have no judicial function or to act in situations where local law does not make the employment of a lawyer compulsory may not be required to act in conjunction with a member of the domestic Bar. Article 5 of the directive does not apply in such cases. [20] Services. Lawyers. Local lawyer rule. Circuit system.

2 National rules restricting lawyers to court activity and appearances solely in their own judicial district (in which they are admitted to plead) do not apply to lawyers from other member-states who are exercising their rights to extraterritorial practice under the *570 Lawyers' Services Directive 77/249. Such lawyers may in principle plead (temporarily) in the courts of any judicial district in the host State. [28] Services. Lawyers. Local lawyer rule. The power of member-states, under Article 5 of the Lawyers' Services Directive 77/249, to require a visiting lawyer to be 'shadowed' by a local lawyer extends only to informal co-operation between the two. Article 5 does not permit particular activities, whether forensic or procedural, to be reserved to the local lawyer. [20] French law restricts a practising lawyer to practice within a single judicial district within which he has been admitted to practise (similar to the old circuit system of the English and Welsh Bar). Decree (as amended in 1979 to incorporate the provisions of the Lawyers' Services Directive 77/249) restricted the enjoyment of the directive to non-french nationals. It also required (a) that in proceedings before courts other than tribunaux de grande instance and cours d'appel, and also in proceedings before disciplinary bodies and public authorities, the visiting lawyer must work in conjunction with a French lawyer (i.e. a lawyer who is a member of a French Bar), and (b) that in proceedings before a tribunal de grande instance or a cour d'appel a local lawyer who is admitted or authorised to practise before that court must be 'retained', i.e. used to perform himself actual procedural functions. On the Commission seeking a declaration that these restrictions infringed the directive, the Court held that (a) the directive applied to all lawyers authorised to plead in a member-state other than the host State irrespective of nationality, and so that a French national authorised to practise in the Community outside France was entitled to make use of the directive to practise temporarily (i.e. provide services) in France itself on the same terms as any other Community lawyer; that (b) the 'local lawyer' rule permitted by Article 5 of the directive only applied to practice before a judicial body and even then only before a judicial body before which only admitted lawyers were permitted to plead, that consequently in all other circumstances a Community lawyer was entitled to appear on his own and without the assistance of a local lawyer, it being unclear from the judgment how this would apply to courts which allowed litigants to plead in person but otherwise restricted appearance to admitted lawyers; that (c) in any case, the local lawyer rule concession limited the extent of a permitted requirement to mere collaboration (to be worked out between the two lawyers themselves in the interests of their client), that it could not be used to reserve to the local lawyer exclusive conduct of any procedural stage, even if merely symbolic (e.g. appending of a signature to a document), that consequently the visiting lawyer was entitled under Article 5 of the directive to conduct all stages of the proceedings himself, merely using the local lawyer as a colleague to advise him as *571 necessary; and granted the declaration sought that the French legislation infringed the directive.

3 Representation Etienne Lasnet of the Commission's Legal Service, for the applicant E.C. Commission. Jean-Pierre Puissochet, Director of the Legal Affairs Department at the Ministry of Foreign Affairs, and Marc Giacomini, Secretary for Foreign Affairs, for the defendant French Government. The following cases were referred to in the judgment: 1. Re Lawyers' Services: E.C. Commission v. Germany (427/85), 25 February 1988: [1988] E.C.R. 1123, [1989] 2 C.M.L.R Gaz:427/85 2. Ordre des Avocats Au Barreau de Paris v. Klopp (107/83), 12 July 1984: [1984] E.C.R. 2971, [1985] 1 C.M.L.R. 99. Gaz:107/83 3. Webb (279/80), 17 December 1981: [1981] E.C.R. 3305, [1982] 1 C.M.L.R Gaz:279/80 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Facts Community law On 22 March 1977 the Council adopted Directive 77/249 to facilitate the effective exercise by lawyers of freedom to provide services. [FN1] FN1 [1977] O.J. L78/17, [1978] Commercial Laws of Europe 61. According to Article 1(1), the directive is to apply, within the limits and under the conditions laid down therein, to the activities of lawyers pursued by way of provision of services. Article 1(2) defines the term ' lawyer' as meaning any person entitled to pursue his professional activities under one of the designations listed therein. Article 2 provides that such a person is to be recognised 'as a lawyer' for the purpose of pursuing his activities by way of the provision of services. According to Article 4(1) of the directive: Activities relating to the representation of a client in legal proceedings or before public authorities shall 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 organisation, in that State. Furthermore, Article 5 of the directive 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: *572

4 -- to be introduced, in accordance with local rules or customs, to the presiding judge and, where appropriate, to the President of the relevant Bar in the host member-state; -- to work in conjunction with a lawyer who practices before the judicial authority in question and who would, where necessary, be answerable to that authority, or with an 'avoué' or 'procuratore' practising before it. French law The provisions designed to transpose Directive 77/249 into French law are laid down by Decree of 22 March 1979 on freedom for lawyers who are nationals of member-states of the European Communities to provide services in France, amending Decree of 9 June 1972 regulating the legal profession. [FN2] FN2 [1979] J.O.R.F Decree incorporates in Decree Title IVbis headed 'De la libre prestation de services en France par les avocats des autres États membres des Communautés européennes' (Freedom for lawyers of other member-states of the European Communities to provide services in France), which contains six sections (sections to 126-6). According to the first paragraph of section 126-1, lawyers who are nationals of a member-state, are established on a permanent basis in a member-state other than France and who occasionally carry out professional activities in France may rely on those provisions. The first paragraph of section provides that 'nationals of other member- States of the European Community who carry on their professional activities in their country of origin' under one of the designations listed in Article 1(2) of Directive 77/249 'shall be recognised in France as lawyers.' In addition, the fourth and fifth paragraphs of section provide as follows: In order to conduct the proceedings or carry out the procedural formalities (the lawyer referred to in section 126-1) must, in civil cases where it is compulsory to be represented by a lawyer, retain in proceedings before the tribunal de grande instance (regional court) a lawyer who is a member of the Bar of that court, or is authorised to plead before it, and in proceedings before the cour d'appel (court of appeal), an 'vou1e' practising before that court or, if none, a lawyer authorised to plead before it. In proceedings before other courts, judicial or disciplinary bodies or the public authorities, he must, subject to the practices in force on the date when this section enters into effect, work in conjunction with a lawyer who is a member of a French Bar and who will, where necessary, be answerable to that court, body or authority. Pre-litigation procedure

5 On 26 December 1984 the Commission sent a letter of formal notice to France. In its letter, the Commission set out three complaints *573 relating to the provisions of Decree , as amended by Decree First of all, the Commission pointed out that the first paragraph of section of the decree restricted the benefit of freedom to provide services to lawyers who were nationals of a member-state other than France, whereas, according to the Commission, French nationals were also covered by the directive. Whilst acknowledging that section of the decree seemed to suggest that the French Government did not intend to exclude from the scope of that decree French nationals practising as lawyers in another member-state, the Commission considered that for reasons of legal certainty, the first paragraph of section had to be amended in order to be in conformity with the requirements of the directive. The Commission's second complaint was in two parts. To begin with, it maintained that, contrary to the fourth and fifth paragraphs of section of Decree , the obligation incumbent on a lawyer providing services to work in conjunction with a lawyer who was a member of a French Bar applied only in proceedings before the courts and before public bodies and authorities in the judicial sector. Secondly, the Commission emphasised that that obligation applied only in proceedings in which, according to the French legislation, it was compulsory to be represented by a lawyer and which were therefore the preserve of lawyers. Thirdly, the Commission argued that the obligation imposed on a lawyer providing services by the fourth paragraph of section 126-3of the decree to 'retain' a local lawyer in order to plead or carry out the procedural formalities in civil cases before certain courts--an obligation arising from the 'territorial exclusivity of the right to plead'-- seemed to go beyond the obligation to work in conjunction imposed by Article 5 of the directive. France replied on 14 March It did not deny that the first complaint and the first part of the second complaint set out in the letter of formal notice were justified, and offered to amend its legislation in order to take account of the Commission's observations on those points. With regard to the second part of the second complaint, however, France pointed out that in several courts in which it was not compulsory to be represented by a lawyer, the lawyer nevertheless enjoyed a monopoly with regard to representation in that, if the party in question did not intend to conduct his own defence, he had to be represented by a lawyer. Furthermore, France considered that the requirement for lawyers to work in conjunction also extended to proceedings in which a lawyer did not have that monopoly with regard to representation (proceedings before the commercial courts), where the lawyer providing services had no special authority but relied on his status as a lawyer. Finally, so far as concerned the territorial exclusivity of the right to plead, France emphasised in particular, that the fourth paragraph of section of Decree placed a lawyer providing services in the same position as his French colleague who appeared *574 before an appeal court or a regional court other than that of whose Bar he was a member. On 6 September 1985 the Commission delivered a reasoned opinion under Article 169 EEC. In that opinion, the Commission pointed out that France had

6 acknowledged that the first complaint and the first part of the second complaint set out in the letter of formal notice were justified. So far as concerned the second part of the second complaint (the requirement for lawyers to work in conjunction where French law does not require the assistance of a lawyer), the Commission considered that the requirement to work in conjunction with a lawyer established in France seemed justified in proceedings in which the lawyer enjoyed a monopoly with regard to representation even where his assistance was not compulsory since the parties were capable of acting on their own. According to the Commission, however, that requirement did not apply to proceedings before the commercial courts in which a lawyer did not have a monopoly with regard to representation, even where the lawyer providing services relied on his status as a lawyer. Furthermore, so far as concerned the third complaint (territorial exclusivity of the right to plead), the Commission maintained the position it had adopted in its letter of formal notice. The Commission also argued that, pursuant to Article 4 of Directive 77/249, a lawyer providing services must have the possibility of pleading before a regional court in the same way as a lawyer who is a member of the Bar of that court, subject only to the reservation that he must work in conjunction with a lawyer who is a member of the Bar of that court. The Commission gave France a period of two months in which to comply with the terms of its reasoned opinion. France replied on 10 January In its letter to the Commission, France maintained the position it had adopted on 14 March 1985 in reply to the letter of formal notice. Following the Court's judgment in Case 427/85, E.C. Commission v. Germany, [FN3] and contacts between the Commission and the Ministry of Justice, France submitted fresh observations to the Commission by letter of 9 August In that letter, France did not deny that the first complaint set out in the letter of formal notice of 24 December 1984 was justified, and undertook to amend its legislation accordingly. Furthermore, so far as concerned the second complaint, France acknowledged that, following the aforesaid judgment in Case 427/85, the requirement for lawyers to work in conjunction could be imposed only in proceedings in which the assistance of a lawyer was compulsory. It offered to repeal the final paragraph of section of the decree. However, it disputed the third complaint on the ground that the rule concerning the territoriality of the right to plead was justified by the concern to ensure the proper administration of justice *575 and subjected a lawyer providing services to constraints which were consistent with the concept of work in conjunction. FN3 [1988] E.C.R. 1123, [1989] 2 C.M.L.R In view of the dispute between itself and France concerning the territoriality of the right to plead and the fact that the French legislation had not been duly brought into line so as to terminate the other two infringements, the Commission instituted these proceedings. Opinion of the Advocate General (Sig. Giuseppe Tesauro)

7 1. In this application the Commission is asking the Court to declare that France has failed to fulfil its obligations under Articles 59 and 60 EEC and Council Directive 77/249 to facilitate the effective exercise by lawyers of freedom to provide services. [FN4] FN4 [1977] O.J. L78, [1978] Commercial Laws of Europe 61. More specifically, the Commission challenges the provisions of Decree [FN5] which restrict the scope of the Community legislation; those provisions extend beyond the permissible limits the obligation incumbent on the lawyer providing services to work in conjunction with a local lawyer, and they envisage the application, also in relation to those covered by the directive, of French legislation which provides for the territorial exclusivity of the ius postulandi. FN5 [1979] J.O.R.F I shall deal briefly with the first two complaints which are not disputed by the French Government and which, in my view, are well founded. The Commission is correct in arguing that the first paragraph of section of the decree is contrary to Article 1 of the directive, in so far as, by referring to lawyers who are nationals of the member-states and are established in their own country of origin, it seems to exclude from its own field of application, contrary to what is laid down by the directive, lawyers of French nationality who are established in another member-state. Moreover, even if, as is clear from the wording of the other provisions of the decree (see, for instance, section 126-1), that exclusion would seem to be involuntary and probably the result of an oversight by the legislature, the fundamental need for legal certainty nevertheless warrants the amendment of the provision in question. 3. Secondly, the Commission points out that by requiring the lawyer providing services to work in conjunction with a local lawyer even when appearing before bodies and authorities which have no judicial function and in proceedings in respect of which French law does not make it compulsory to be represented by a lawyer, the fifth paragraph of section of the decree is contrary to Article 5 of the directive, which instead provides for the possibility of imposing that obligation only in respect of the pursuit of activities relating to the representation and defence of a client in legal proceedings. *576 That complaint as well would seem to be well founded. It follows from the case law of the Court that Article 5 of the directive cannot have the effect of imposing upon a lawyer providing services requirements for which there is no equivalent in the professional rules which would apply in the absence of any provision of services within the meaning of the Treaty, nor is there any consideration relating to the public interest which, in judicial proceedings for which representation by a lawyer is not mandatory, can justify the obligation for a lawyer to work in conjunction with a lawyer practising before the court in

8 question. [FN6] FN6 Case 427/85, E.C. Commission v. Germany: [1988] E.C.R. 1123, [1989] 2 C.M.L.R. 677, para. [13] and [14]. 4. The Commission's third criticism, unlike the first two, is challenged by the defendant. In order to understand the nature of that allegation a brief preliminary explanation is called for. France, like other member-states, applies the principle of the territoriality of the ius postulandi, according to which a lawyer, whilst being authorised to provide assistance throughout the national territory, is entitled to represent a party to a case, and thus to carry out the requisite procedural formalities in his capacity as authorised representative, only before the tribunal de grande instance (regional court) of the Bar of which he is a member. That restriction, which applies in general terms to all lawyers established on French territory, is extended to lawyers providing services who are established in other member-states by the fourth paragraph of section of the decree, according to which, in order to be able to conduct the proceedings or carry out the procedural formalities, the lawyer must, in cases where it is compulsory to be represented by a lawyer, retain a lawyer who is a member of the Bar of the tribunal de grande instance or, so far as the cour d'appel is concerned, an avoué practising before that court. 5. Whilst acknowledging that, as Article 5 of the directive provides, it is permissible to require a lawyer providing services to work in conjunction with a colleague who practises before the judicial authority in question, [FN7] the Commission regards as inconsistent with Community law the prohibition on a lawyer established in another member-state representing a party to a case by carrying out the requisite procedural formalities. FN7 See, for the same view, the Court's judgment in E.C. Commission v. Germany, cited above, para. [43]. It should be noted that Germany has intervened in these proceedings in support of the defendant under the misapprehension that the Commission did not accept the argument that the local lawyer must be admitted to practise before the judicial authority in question. 6. In reply France states that the rule concerning the territorial exclusivity of the ius postulandi, as applied in France, is fully justified inasmuch as it is intended to ensure the proper administration of *577 justice by guaranteeing permanent contact between the lawyer and the court and enabling the local lawyer to follow the different stages of the procedure so as to be answerable to the court. The defendant adds that, in its judgment in Case 427/85, [FN8] the Court did not intend to criticise the territorial exclusivity of the ius postulandi as such, but only certain particularly vexatious formalities, which are not justified by objective requirements. FN8 E.C. Commission v. Germany, cited above.

9 7. Let me say at once that the French Government's point of view does not, it seems to me, correspond to a correct reading of the relevant provisions of the Treaty. On the basis of Article 59, all restrictions on freedom to provide services must be abolished in order to enable, in particular, the person providing a service, as laid down by Article 60(3), to 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. However, those provisions, whose principal aim is to enable the person providing the service to pursue his activities in the host member-state without suffering any discrimination, do not mean that all national legislation applicable to nationals of the host State and usually applied to the permanent activities of those established therein may be similarly applied in its entirety to the temporary activities of persons established in other member-states. [FN9] FN9 Case 279/80, Webb: [1981] E.C.R. 3305, [1982] 1 C.M.L.R. 719, para. [16]. As the Court has pointed out in Case 427/85, [FN10] the rule of territorial exclusivity is part of national legislation normally relating to a permanent activity of lawyers established in the territory of the member-state concerned, all of whom have the right to gain admission to practise before a judicial authority and to pursue before it all the activities necessary for the representation and defence of clients. Accordingly, that rule is inapplicable to activities of a temporary nature pursued by lawyers established in other member-states, since the conditions of law and fact which apply to those lawyers are in that respect fundamentally different. FN10 E.C. Commission v. Germany, cited above, para. [41] and [42]. 8. As for the reasons relied upon by the defendant, it must be borne in mind that similar objections had been raised by the German Government in Case 427/85 and rejected by the Court. In particular, as regards the need to ensure that the lawyer representing a party to a case maintains the necessary contact with the court, the Court of Justice has frequently stated that modern methods of transport and telecommunications make it possible to ensure that lawyers maintain contact with their clients and the judicial authorities in an appropriate manner. [FN11] FN11 Case 107/83, Ordre des Avocats Au Barreau de Paris v. Kloop: [1984] E.C.R. 2971, [1985] 1 C.M.L.R. 99, para. [21]; E.C. Commission v. Germany, cited above, para. [28]. 9. Admittedly, the French Government's concern is, in any event, *578 worthy of the closest attention, since it is undeniable that one of the main tasks of a State governed by the rule of law is precisely to ensure the proper administration of

10 justice. From that point of view, therefore, it is indisputable that the court must be afforded, in addition to the assistance provided by the most modern methods of telecommunications, the possibility of communicating easily and swiftly with the parties' lawyers, in order to ensure that the proceedings are conducted expeditiously in compliance with the principle that each side must have the opportunity to state its case. While that is true, it seems to me that appropriate contact between court and lawyer could be ensured, also with a view to avoiding dilatory practices or objective delays, by a provision which is less burdensome for the lawyer providing the services such as, for example, the requirement of an address for service at the chambers of the local lawyer in conjunction with whom he works. 10. Moreover, in response to an express question on that point, the Commission itself stated at the hearing, confirming a standpoint which it had already taken in Case 427/85, [FN12] that it considered the requirement of an address for service to be an acceptable, albeit extreme, possibility. FN12 See the Report for the Hearing in Case 427/85, E.C. Commission v. Germany, cited ab ove, p It should be borne in mind, in addition, that the Court's Rules of Procedure also seem to lay down the aforesaid requirements, by providing that the applicant must have an address for service in the place where the court has its seat (Article 38(2)). [FN13] FN13 It should be noted that in their new version the Rules of Procedure, which are being published in the Official Journal, also provide for an address for service, but no longer treat an application as inadmissible by way of penalty for non-compliance.--a.g. They have now been published in [1991] O.J. L176/7 and in [1991] 3 C.M.L.R Ed. Such a provision would seem to me, therefore, to be suited to the purpose of ensuring that legal proceedings are conducted properly and efficiently, without placing unnecessary obstacles in the path of freedom to provide services. 11. Finally, so far as concerns the accountability of the local lawyer to the judicial authorities, the Court has already pointed out in Case 427/85 that, in principle, the lawyer providing services and the local lawyer selected, both being subject to the ethical rules applicable in the host member-state, must be regarded as being capable, in compliance with those ethical rules and in the exercise of their professional independence, of agreeing upon a form of co-operation appropriate to their client's instructions. Hence although it is open to the national legislature to lay down a general framework for co-operation, the resultant obligations must not be disproportionate in relation to the objective of the duty to work in conjunction, which is to enable the lawyer providing services to *579 carry out the tasks entrusted to him by his client with due regard for the proper administration of

11 justice. In that light, the local lawyer cannot be required to act as authorised representative or defending counsel, or to sign the procedural documents: those conditions would seem to be neither necessary nor useful for the provision of the support required by the lawyer providing services. [FN14] FN14 E.C. Commission v. Germany, cited above, para. [24] to [26]. 12. In the light of the foregoing considerations, therefore, I propose that the Court: (1) Declare that France has failed to fulfil its obligations under Articles 59 and 60 EEC and Council Directive 77/249 to facilitate the effective exercise by lawyers of freedom to provide services by: -- depriving French nationals who practise as lawyers in a member-state other than France of the benefit of the rights conferred by the directive: -- requiring the lawyer providing services to work in conjunction with a lawyer established in French territory even in cases where the assistance of a lawyer is not compulsory; -- subjecting the lawyer providing services to the principle of territorial exclusivity of the ius postulandi. (2) Order the defendant to pay the costs. (3) Order the intervener to bear its own costs. JUDGMENT [1] By application lodged at the Court Registry on 25 September 1989, the E.C. Commission brought an action under Article 169 EEC for a declaration that France has failed to fulfil its obligations under the Treaty by not adopting, in compliance with Articles 59 and 60 EEC, all the laws, regulations and administrative provisions needed to comply with Council Directive 77/249 to facilitate the effective exercise by lawyers of freedom to provide services. [2] The provisions adopted by France for the implementation of Directive 77/249 are set out in Decree of 9 June 1972 regulating the legal profession, as amended by Decree of 22 March 1979 on freedom for lawyers who are nationals of member-states of the European Communities to provide services in France. [FN15] FN15 [1979] J.O.R.F [3] The first paragraph of section of Decree provides that ' nationals of other member-states of the European Communities who carry on their professional activities in their country of origin' under one of the designations listed in Article 1(2) of Directive 77/249 'shall be recognised in France as lawyers.' [4] Furthermore, the fourth paragraph of section of Decree * provides that 'in order to conduct the proceedings or carry out the procedural

12 formalities' a lawyer providing services must, in civil cases where it is compulsory to be represented by a lawyer, retain in proceedings before the tribunal de grande instance (regional court) a lawyer who is a member of the Bar of that court or is authorised to plead before it, and in proceedings before the cour d'appel (court of appeal) an avoué practising before that court or, if none, a lawyer authorised to plead before it. In addition, according to the fifth paragraph of section of that decree, the lawyer providing services must, in proceedings before the other courts, disciplinary or judicial bodies or the public authorities,... subject to the practices in force on the date when this article enters into effect, work in conjunction with a lawyer who is a member of a French Bar and who will, where necessary, be answerable to that court, body or authority. [5] In the letter of formal notice and the reasoned opinion which it sent to France in accordance with Article 169 EEC, the Commission set out three distinct complaints against the provisions of Decree on the freedom for lawyers to provide services in France. The first complaint concerns the persons covered by those provisions, as set out in the first paragraph of section of the decree. The second complaint relates to the scope of the obligation, imposed on the lawyer providing the services, to work in conjunction with a lawyer established in France. The third complaint concerns the obligation, imposed on the lawyer providing services, to retain, in proceedings before certain courts, a lawyer who is a member of the Bar of the judicial authority in question in order to plead or carry out the procedural formalities. [6] France failed to comply with the reasoned opinion issued by the Commission, whereupon the latter instituted these proceedings. [7] Reference is made to the Report for the Hearing for a fuller account of the procedure and the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. Persons covered by Decree [8] The Commission considers that the first paragraph of section of Decree is contrary to Article 1(2) of Directive because it deprives French nationals practising as lawyers in a member-state other than France of the benefit of the provisions on the freedom for lawyers to provide services in France. [9] France does not dispute the infringement with which it is thereby charged. [10] According to Article 1(2) of Directive 77/249, the term 'lawyer,' for the purposes of that directive, means any person entitled to pursue his professional activities under one of the designations listed in that provision. Furthermore, Article 2 of that directive provides that the *581 persons referred to in Article 1(2) are to be recognised as lawyers by each member-state for the purpose of pursuing their activities by providing services. [11] Accordingly, not only nationals of member-states other than France, but also French nationals authorised to pursue their professional activities in a member-

13 State other than France, under one of the designations listed in Article 1(2) of Directive 77/249, must be recognised as lawyers in France. [12] It must therefore be held that, by depriving French nationals who practise as lawyers in a member-state other than France of the benefit of the provisions on freedom for lawyers to provide services in France, France has failed to fulfil its obligations under the Treaty. Scope of obligation to work in conjunction with a lawyer established in France [13] The Commission considers that the fifth paragraph of section of Decree is contrary to Article 5 of Directive 77/249 inasmuch as it requires the lawyer providing services to work in conjunction with a lawyer who is a member of a French Bar in proceedings before bodies and authorities which are not involved in the administration of justice, and in proceedings in which, under French law, the assistance of a lawyer is not compulsory. [14] France does not dispute the infringement with which it is charged. [15] It should be pointed out that Article 5 of Directive 77/249 authorises the member-state to require lawyers providing services to work in conjunction with a lawyer who practises before the judicial authority in question, exclusively 'for the pursuit of activities relating to the representation of a client in legal proceedings.' [16] Accordingly, that requirement cannot be imposed for the pursuit of activities before bodies or authorities which have no judicial function. [17] Furthermore, as the Court held in Case 427/85, Commission v. Germany, [FN16] Article 5 of Directive 77/249 may not have the effect of imposing upon a lawyer providing services requirements for which there is no equivalent in the professional rules which would apply in the absence of any provision of services within the meaning of the Treaty. FN16 [1988] E.C.R. 1123, [1989] 2 C.M.L.R. 677, at para. [13]. [18] It is common ground that, in the case of certain proceedings conducted before the courts, French legislation does not require the parties to be assisted by a lawyer but allows the parties to conduct their own defence or, in proceedings before the commercial courts, to be assisted and represented by a person who is not a lawyer, but holds a special authorisation. [19] Accordingly, the lawyer providing services cannot be required to work in conjunction with a lawyer practising before the judicial *582 authority in question, in judicial proceedings in respect of which the French legislation does not make the assistance of a lawyer compulsory. [20] It must therefore be held that, by requiring a lawyer providing services to work in conjunction with a lawyer who is a member of a French Bar when acting before authorities or bodies which have no judicial function and when acting in situations where French law does not make the assistance of a lawyer compulsory, France has failed to fulfil its obligations under the Treaty. Territoriality of the right to plead

14 [21] The Commission considers that the fourth paragraph of section of Decree is contrary to Articles 59 and 60 EEC and to Article 5 of Directive 77/249 inasmuch as it lays down that a lawyer providing services who appears before a Tribunal de Grande Instance must, in civil cases where it is compulsory to be represented by a lawyer, retain a lawyer who is a member of the Bar of that court or is authorised to plead before it, in order to conduct the proceedings or carry out the procedural formalities. [22] According to the Commission, a lawyer providing services must be able to appear in France before any court on the same terms as a lawyer who is a member of the Bar of that court, that is to say, in particular, a lawyer permitted to plead, subject only to the reservation that he must work in conjunction with a lawyer practising before that court. [23] France considers that the requirement imposed by the fourth paragraph of section of Decree is consistent with the concept of work in conjunction with another lawyer, as set out in Article 5 of Directive 77/249. In that regard, it maintains that the obligation to retain a lawyer who is a member of the Bar of the judicial authority in question in order to conduct the proceedings is justified by the fact that, under Article 5 of that directive, that lawyer is answerable to the judicial authority in question as regards compliance with the relevant procedural rules and rules of professional conduct. [24] A preliminary point to bear in mind is that the Court, ruling in the matter of freedom of establishment, pointed out in Case 107/83, Ordre des Avocats Au Barreau de Paris v. Klopp, [FN17] that although, in view of the special nature of the legal profession, the host 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, those requirements must not prevent the nationals of other member-states from exercising properly a right guaranteed to them by the Treaty. FN17 [1984] E.C.R. 2971, [1985] 1 C.M.L.R. 99, at para. [20]. [25] So far as the freedom to provide services is concerned, all *583 restrictions thereon are to be abolished, according to Article 59 EEC, in order in particular to enable a person providing a service to 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, to use the wording of Article 60(3) EEC. [26] The aim of those provisions is primarily to enable the person providing the service to pursue his activities in the host member-state without suffering discrimination in favour of nationals of that State. As the Court pointed out in Case 279/80, Webb, [FN18] those provisions do not mean that all national legislation applicable to nationals of that State and usually applied to the permanent activities of persons established therein may be similarly applied in their entirety to the temporary activities of persons who are established in other member-states.

15 FN18 [1981] E.C.R. 3305, [1982] 1 C.M.L.R. 719, at para. [16]. [27] The rule of territorial exclusivity laid down in the fourth paragraph of section of Decree is in fact part of national legislation normally relating to a permanent activity of lawyers established in the territory of the member-state concerned, all of whom are entitled to plead before the tribunal de grande instance within whose area of jurisdiction they are established. However, a lawyer providing services who is established in another member-state is not in a position where he can plead before a French tribunal de grande instance. [28] In those circumstances, it must be stated that the rule of territorial exclusivity cannot be applied to activities of a temporary nature pursued by lawyers established in other member-states, since the conditions of law and fact which apply to those lawyers are not in that respect comparable to those applicable to lawyers established on French territory. [29] However, that finding only applies subject to the obligation of the lawyer providing services to work in conjunction with a lawyer admitted to practise before the judicial authority in question, within the limits and on the conditions laid down by the Court in Case 427/85, E.C. Commission v. Germany. [30] In that judgment, the Court considered that the obligation which member- States may impose on a lawyer providing services to work in conjunction with a lawyer practising before the judicial authority in question was intended to provide the former with the support necessary to enable him to act within a judicial system different from that to which he was accustomed and to assure the judicial authority concerned that he actually had that support and was thus in a position fully to comply with the procedural and ethical rules that applied. [31] Accordingly, the lawyer providing services and the local lawyer, both being subject to the ethical rules applicable in the host member-state, must be regarded as being capable, in compliance with those *584 ethical rules and in the exercise of their professional independence, of agreeing upon a form of cooperation appropriate to their client's instructions. [32] That does not mean that it would not be possible for the national legislatures to lay down a general framework for co-operation between the two lawyers. However, the resultant obligations must not be disproportionate in relation to the objectives of the duty to work in conjunction, as defined above. [33] France maintains that the rule laid down in the fourth paragraph of section of Decree is necessary in order to assure the judicial authority in question that the lawyer providing services will comply fully with the procedural and ethical rules applicable in France. In the first place, that rule is essential in order to ensure compliance with the provisions which are intended to ensure that the procedure is conducted expeditiously, with both sides being given an opportunity to state their case, in particular during the preliminary procedure, and which presuppose the existence between the lawyer who is pleading and the judicial authority in question of permanent contact which a lawyer established in another member-state is not in a position to guarantee. Secondly, that rule is such as to facilitate the initiation of disciplinary proceedings against a local

16 lawyer working in conjunction with the lawyer providing services. [34] Those arguments cannot be accepted. [35] In the first place, as the Court stated in its judgment in Kloop, [FN19] modern methods of transport and telecommunications enable lawyers to maintain the necessary contacts with clients and the judicial authorities. Furthermore, the expeditious conduct of the proceedings, in compliance with the principle that both sides must be given the opportunity to state their case, can be ensured by imposing on the lawyer providing services obligations which restrict the pursuit of his activities to a lesser extent. That aim could therefore be achieved by requiring the lawyer providing services to have an address for service at the chambers of the lawyer in conjunction with whom he works, where notifications from the judicial authority in question could be duly served. FN19 At para. [21]. [36] Secondly, although it may facilitate disciplinary proceedings against the local lawyer, the rule of territorial exclusivity is not necessary for the conduct of such proceedings. [37] Accordingly, it must be held that, by requiring a lawyer providing services who appears before a tribunal de grande instance, in civil cases where it is compulsory to be represented by a lawyer, to retain a lawyer who is a member of the Bar of that court or is authorised to plead before it in order to plead or carry out the procedural formalities, France has failed to fulfil its obligations under the Treaty. *585 Costs [38] Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since France has been unsuccessful, it must be ordered to pay the costs. Germany, which has intervened in support of the form of order sought by France, must be ordered to bear its own costs. Order On those grounds, THE COURT HEREBY: 1. Declares that France has failed to fulfil its obligations under Articles 59 and 60 EEC and Council Directive 77/249 to facilitate the effective exercise by lawyers of freedom to provide services by: -- depriving French nationals who practise as lawyers in a member-state other than France of the benefit of the provisions on freedom for lawyers to provide services in France; -- requiring a lawyer providing services to work in conjunction with a lawyer who is a member of a French Bar when acting before authorities or bodies which have no judicial function and when acting in situations where French law does not make the assistance of a lawyer compulsory; and -- requiring a lawyer providing services who appears before a tribunal de grande

17 instance (regional court), in civil cases where it is compulsory to be represented by a lawyer, to retain a lawyer who is a member of the Bar of that court or is authorised to plead before it in order to plead or carry out the procedural formalities. 2. Orders France to pay the costs. 3. Orders Germany to bear its own costs. (c) Sweet & Maxwell Limited [1993] 3 C.M.L.R. 569 END OF DOCUMENT