C-427/85

OPINION OF MR DA CRUZ VILAÇA — CASE 427/85

OPINION OF MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 3 December 1987 *

According to the first paragraph of Article Mr President, 60, services normally provided for Members of the Court, remuneration are to be regarded as 'services' within the meaning of the Treaty, in so far as they are not governed by the 1. In the present Treaty-infringement provisions relating to freedom of movement proceedings, the Commission seeks a for goods, capital and persons. declaration by the Court that the Federal Republic of Germany has failed, with respect to lawyers' freedom to provide 5. That definition determines the extent of services, to fulfil its obligations under the the freedom to provide services, subject, EEC Treaty and under Council Directive however, to Article 61 and Articles 55 and No 77 / 249 / EEC of 22 March 1977. 1 56, to which Article 66 refers. In turn, the scope of Articles 59 and 60 is defined by I — The applicable Community law reference to the places where those providing the services and those for whom they are provided are established or reside. 2. The purpose of Directive 77 / 249 / EEC , which was adopted by the Council under Articles 57 and 66 of the Treaty, is to 6. The third paragraph of Article 60 states: facilitate the effective exercise by lawyers of the freedom to provide services. 'Without prejudice to the provisions of the Chapter relating to the right of estab­ 3. Since that freedom derives directly from lishment, the person providing a service the Treaty and, in particular from Article may, in order to do so, temporarily pursue 59, the directive must be interpreted in the his activity in the State where the service is light of the provisions of the Treaty whose provided, under the same conditions as are implementation it is designed to ensure. imposed by that State on its own nationals'.

a person providing the service by reason of lishment' (the principle of equivalence) his nationality but also of all restrictions on (Webb, paragraph 17; see also Van the freedom to provide services to which he Wesemael, paragraphs 28, 29 and 30). is subject by reason of the fact that he is established in a Member State other than that in which the service is to be provided. 3 11. Furthermore, the requirements laid down by national legislation must be 'objectively justified by the need to ensure that professional rules of conduct are 8. As regards the rule on national treatment complied with and that the interests which laid down in the third paragraph of Article such rules are designed to safeguard are 60, the Court has taken the view that, whilst protected', as the Court stated in its the aim of that provision is 'to enable the judgment of 4 December 1986 concerning provider of the service to pursue his acti­ the freedom to provide services in the vities in the Member State where the service 4 insurance industry. In that judgment the is given without suffering discrimination in Court added a further condition, namely favour of the nationals of that State ... it 'that the same result cannot be obtained by does not mean that all national legislation applicable to the nationals of that State and less restrictive rules' (paragraph 29). usually applied to the permanent activities of the undertakings established therein may 12. In view of those requirements, the be similarly applied in its entirety to the Court adopted an approach in the latter temporary activities of undertakings which judgment which involved: are established in other Member States' (Webb, paragraph 16). (1) Determining the existence of an interest justifying certain restrictions on the freedom to provide the services in 9. In the same judgment (paragraph 17) the question; Court conceded that 'regard being had to the particular nature of certain services, specific requirements imposed on the (2) Determining whether or not the public provider of the services cannot be interest was already protected by the considered incompatible with the Treaty laws of the Member State of estab­ where they have as their purpose the lishment; application of rules governing such acti­ vities' (see also Van Wesemael, para­ graph 28). (3) Analysing the restrictive measure with a view to determining whether it was objectively necessary and whether the same result could have been achieved by 10. However, the Court added that 'the less restrictive rules. freedom to provide services is one of the fundamental principles of the Treaty and may be restricted only by provisions which (b) Directive 77/249/EEC are justified by the general good and which are imposed on all persons or undertakings 13. Article 63 of the Treaty provided for a operating in the said State in so far as that 'general programme' to be drawn up for the interest is not safeguarded by the provisions abolition of restrictions on the freedom to to which the provider of the service is provide services within the Community subject in the Member State of his estab­ 4 — Judgment of 4 December 1986 in Case 205/84 Commission 3 — Van Wesemaei, paragraph 27, and Webb, paragraph 14. v Germany [1986] ECR 3755, paragraph 27.

15. Directive 77 / 249 / EEC on the exercise by lawyers of the freedom to provide services (hereinafter referred to as 'the to work in conjunction with a lawyer who directive') falls into the latter category. practises before the judicial authority in question and who would, where necessary, be answerable to that authority ... '. 16. Under the directive (Article 2), the effective exercise of that freedom of course requires that each Member State should 19. The Commission's reliance on that recognize as a lawyer the persons who provision as a basis for the allegations made practise that profession in the various by it against the Federal Republic of Member States under any of the desig­ Germany raises, as we shall see in greater nations listed in Article 1 (2). The detail in due course, a number of questions conditions for that mutual recognition, and of interpretation : in the first place the scope for the exercise of the freedom to provide of the obligation to 'work in conjunction'; services, are laid down in Article 3 et seq. of in the second place, determination of the the directive. types of, or conditions applicable to, work in conjunction which may be defined by a Member State that decides to impose such 17. Specifically with respect to activities an obligation. relating to the representation of a client in legal proceedings or before public auth­ orities, Article 4 (1) provides that such acti­ vities are to be 'pursued in each host II — The national legislation Member State under the conditions laid down for lawyers established in that State, 20. The Federal Republic of Germany with the exception of any conditions implemented the directive by means of the requiring residence, or registration with a Law of 16 August 1980 (hereinafter referred professional organization, in that State'. to as 'the implementing law'), which governs the activities of lawyers providing 5 — Official Journal, English Special Edition, Second Series No IX, p. 3. services.

23. Paragraph 52 (1) and (2) of the Bundes­ rechtsanwaltsordnung provides, with respect to representation by virtue of a power of 6 '(1) The persons listed in paragraph 1 (1) attorney, that: may act as representative or defending counsel for a client in legal or adminis­ trative proceedings concerning criminal '(1) In cases in which representation by offences, infringements, faults com­ a lawyer is mandatory, the lawyer mitted in the course of duty or failure appointed as authorized representative to fulfil professional obligations only if may delegate his representative they act in conjunction with a lawyer authority only to another lawyer who who is himself an authorized represen­ can also be appointed as an authorized tative or defending counsel. representative. Furthermore, they may take part in oral proceedings or in a criminal trial only if they are accompanied by a lawyer. (2) The lawyer appointed to act as auth­ . .. They may correspond with a person orized representative before the Court held in custody only through a lawyer. hearing the case may, during the oral proceedings, entrust to a lawyer who cannot be appointed as an authorized representative in his own right the task (2) The work in conjunction required by of explaining, with his assistance, the subparagraph (1) must be proved each rights of his clients'. cime a step is taken. Steps taken by the persons listed in paragraph 1 (1) in contravention of the provisions of that III — The subject-matter of the proceedings subparagraph in respect of which proof of work in conjunction has not been provided at the time when they are taken shall be null and void. During 24. Following the administrative phase of oral proceedings or in a criminal trial, the proceedings, which is described in the work in conjunction will be presumed if Report for the Hearing, the Commission, not satisfied with the observations submitted 6 — Paragraph 1 (1) of the implementing law repeats word for by the Government of the Federal Republic wordlhe list of designations contained in Article 1 (2) of of Germany, essentially confirmed all its the directive under which the profession of lawyer may be practised in the various Member States. allegations.

(b) The lawyer providing services : 26. I shall merely say that the German Government, in reply to the reasoned opinion, as well as defending its interpre­ (i) may act during oral proceedings tation of the directive declared itself willing or in a criminal trial only if to consider the view that the work in accompanied by the German conjunction provided for in Article 5 of the lawyer; directive is required only in proceedings in which representation or defence of a client by a lawyer is required by law, and to (ii) as defending counsel may visit a review its legislation on certain matters person held in custody only if relating to the conditions for such work in accompanied by the German . conjunction.

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28. According to the Commission, it 31. The Commission considers, however, follows from the second indent of Article 5 that — since the directive must be inter­ of the directive that that obligation may be preted in conformity with the Treaty — the imposed only where individuals may not requirement that the lawyer providing personally represent themselves. Conversely, services must work in conjunction with a the German Government contends that that German lawyer in cases where German law provision extends to all activities concerning does not make representation mandatory representation of clients by a lawyer. constitutes a restriction on the fundamental principle of the freedom to provide services 29. It is to be noted that the second indent which, under Article 59, should be elim­ inated and is in breach of the principle of of Article 5 of the directive provides that equality of treatment with nationals laid each Member State may require lawyers down in the third paragraph of Article 60. providing services 'to work in conjunction According to the Commission, it follows with a lawyer who practises before the from the aim of those provisions of the judicial authority in question . . . '. Treaty and also from Articles 2 and 4 (1) of the directive that such equality of treatment 30. The first argument upon which the must relate to the situation of national German Government relies in its defence is lawyers and not to that of non-specialist based precisely on the literal wording of nationals. that provision: the main part of Article 5 defines its scope by means of a general reference to the 'pursuit of activities relating to the representation of a client in legal 32. The Commission also considers that proceedings', without in any way restricting whenever a party is entitled to have himself it to matters for which representation by a represented or defended in legal lawyer is mandatory. According to the proceedings by any third party, there is no German Government, the literal argument legal reason or requirement relating to

33. In that connection, the Commission (4) It is not apparent why the proper func­ mentions the following considerations. tioning of the German judicial system should be disturbed by the provision of services which, by their very nature, are occasional or temporary. (1) A client will seek the services of a foreign lawyer only if he has particular 34. With respect to these aspects of the reasons for doing so and if he thinks problem, the Government of the Federal that that is the most advantageous Republic of Germany defends itself against course of action for him. Since, by the Commission's allegation by stating in virtue of the first sentence of paragraph particular that: 2 (1) of the implementing law (and Article 3 of the directive), the foreign lawyer's professional designation in the (1) Even where representation by a lawyer language of his country of origin will is not mandatory, it is convenient for indicate that he is not a German lawyer, the parties and the Court to the client, even if not a specialist, will be communicate with each other through a perfectly well able to assess the qualifi­ representative whose professional cations of the lawyer in question. training and experience ensure that he is thoroughly familiar with German law, and, in particular, with the rules of procedure and customs of the Courts. (2) The intervention of a foreign lawyer seems more conducive to the proper conduct of the proceedings than repre­ It is for that reason that the German sentation by the person concerned on legislation keeps the participation of his own behalf; as far as the partici­ unqualified persons to the minimum pation of non-specialists is concerned, possible; such persons may participate the intervention of lawyers providing only in exceptional cases where there services is even more justified. are judicial reasons for their doing so Moreover, it is logical to conclude that and their participation does not become most cases will concern representation a regular activity. of nationals of other Member States or legal problems relating to other Member States. (2) It is in the interests of the client — even in proceedings for which it is not mandatory to instruct a lawyer — for the person providing services to be (3) As a rule, a foreign lawyer will precluded from acting without the undertake to represent a client before a support of a German lawyer. In admin­ German judicial authority only if he is istrative, fiscal, social and conciliation fluent in German and is sufficiently well proceedings before lower courts, in acquainted with the German legal which representation by a lawyer is not system. mandatory, the courts would not have

to fulfil their obligations regarding in order either to submit pleadings in the explanation of the case to the same course of the procedure or to present oral extent for a lawyer as for a party who is argument before a court. The obligation to not represented or, at least, is not repre have oneself represented or assisted by a sented by a lawyer. lawyer thus entails the result that a party may not act for himself in legal proceedings (3) The provisions of German procedural or instruct someone other than a lawyer to law which authorize representation by do so. persons with the capacity to be parties to proceedings are intended above all to guarantee the parties the possibility of 38. In Germany, representation by a lawyer defending their cases themselves. is, in principle, mandatory in civil and criminal proceedings, except, mainly, in lower courts or in the case of minor The law on representation in pro offences; by contrast, in contentious- ceedings before courts lays down a administrative, fiscal, social and labour general prohibition on appearing proceedings, representation by a lawyer is, professionally before courts, except in in principle, mandatory only before the the case of lawyers and certain other highest courts. agents, in specified circumstances, so that the class of representatives permitted to act in proceedings for

35. In view of those arguments put forward cannot be represented by third parties who by the German Government, I must draw a are not lawyers. distinction between two concepts which, although distinct, are close to each other and partially overlap. 41. Outside the area of mandatory legal representation, the lawyers' legal monopoly 36. The Commission adopted as its points in Germany applies to activities carried on, of reference for defining the limits of the in a professional capacity, in civil authority granted to the Member States by proceedings, with respect to the oral phase the second indent of Article 5 the question of the procedure; in criminal proceedings, of mandatory representation by a lawyer. lawyers and professors of law have a monopoly and the same applies to constitu

OPINION OF MR DA CRUZ VILAÇA —CASE 427/85

general parties may be represented, as of the Treaty on the freedom to provide appropriate, by persons such as trade union services and of the underlying principles. and employers' representatives, represen­ tatives of farming associations and of associ­ ations of war victims, tax advisers, 48. Applying those principles to the present accountancy experts and civil servants or case, I do not consider that, as regards the legal agents of public administrative auth­ cases where representation by a lawyer is orities. not mandatory, the German legislation fulfils the conditions which the Court has laid down for the 'specific requirements' 42. In addition, the law on representation imposed upon the person providing services before the courts lays down a general to be considered compatible with the prohibition which, in principle, is applicable Treaty. It is to this that the directive refers to any non-lawyer third party, preventing when it allows the requirement to be him from acting, in a professional capacity, imposed upon lawyers that they should in any legal proceedings. However, the 'work in conjunction' with a domestic intervention of other persons, such as lawyer. notaries, accountancy experts, adminis­ trators of assets, and so forth, acting within their terms of reference, is permitted. 49. In fact, in such cases, the German law not only allows a party to conduct his own 43. In the light of all the foregoing defence in legal proceedings but also allows considerations, I can now give my opinion him to have himself represented by a on the first of the allegations made by the non-specialized third party, provided Commission concerning the German legis­ thatthe latter does not act in a professional lation. capacity.

achieve the desired result (second and third directive), that is to say, proceedings conditions laid down in the decisions of the involving judicial authorities. Court). 59. According to the German Government, this is what follows from paragraph 4 (1) of 53. In fact, Article 4 (2) of the directive the implementing law, where it refers to provides that 'a lawyer pursuing these acti­ 'administrative proceedings concerning vities shall observe the rules of professional criminal offences, infringements, faults conduct of the host Member State, without committed in the course of duty or failure prejudice to his obligations in the Member to fulfil professional obligations', which the State from which he comes' (see paragraph Commission appears to have accepted in its 10, supra). application (page 14). Although in its reply the Commission seems to have cast doubt upon the compatability with the directive of 54. Moreover, the lawyer is covered by the the reference in paragraph 4 (1) to adminis­ legislation on civil and criminal liability. trative proceedings, the allegation which that appears to imply is clearly out of time, 55. For the rest, the Commission's and should therefore be disregarded. arguments, which I summarized earlier in paragraph 33, appear to me to be essentially (b) Contacts with persons held in custody well founded. 60. The Commission criticizes the Federal Republic of Germany for the fact that the 56. Only in that way will it be possible not second sentence of paragraph 4 (1) extends only to be faithful to the principles laid the obligation to work in conjunction with a down in the Treaty regarding freedom to German lawyer to visits and communication provide services but also to contribute to the with persons held in custody even in those achievement, in this area, of the objectives cases where the latter can be defended by a of the directive. spokesman (Vertrauensmann) who is not a German lawyer. 57. Indeed, the directive is intended to ensure (Article 2) that each Member State 61. I do not think that, essentially, it is should recognize as a lawyer those persons right to do so. who, in the other Member States, are auth­ orized to practise as such and that they 62. In fact, since visits to and communi­ should do so in such a manner that the acti­ cation with persons held in custody are vities involved in representing and defending indiscutably included in the field of 'acti­ a client in legal proceedings or before public vities relating to the representation of a authorities are performed under the same client in legal proceedings', they are covered conditions as those laid down for lawyers by Article 5 of the directive. established in the host State (Article 4 ( l )), without prejudice to the specific conditions 63. The obligation to work in conjunction which are permitted. with a German lawyer may therefore in principle be applied to such contacts. 58. The essential point is — and here I conclude this part of my opinion — that the 64. However, it must be limited to cases obligation to work in conjunction imposed where representation by a lawyer is by the German legislation should be limited mandatory, and therefore, regardless of the to 'legal proceedings' (Article 5 of the view taken of the conditions laid down by

67. Nevertheless, it is a concept of Community law and the definition of its 71. How can these principles be applied to scope could not have been left entirely to a general definition of the concept of the discretion of the Member States; it must working 'in conjunction'? be appraised according to the same interpre­ tative criteria as those used for determining the extent of the obligation laid down in that provision. 72. Let me start by saying that the various language versions of the directive diverge as regards the way in which this concept is 68. This means that, being a concept of expressed : certain versions appear to require Community law, it must be interpreted an agreement between the lawyers independently and in accordance with the concerned, whereas others do not neces­ Treaty, in conformity with the approach sarily imply such a requirement. laid down in the previous decisions of the Court, to which I referred earlier. 73. The expression must, however, be inter­ 69. Of course, in so far as it affects one of preted uniformly having regard to the the principal foundations of the Treaty, that objectives and general scheme of the concept must be interpreted strictly, as the directive. 9 Court has consistently held. 7 8 — See supra, paragraph 12.

7 for 9 — Case 30/77 Regina v Bouchereau [1977] ECR 1999, — See , « ample , with respect to the first paragraph of paragraph 14; see also Case 80/76 Kerry Milk [1977] Article55, Case 2/74 Reyners [1974] ECR 631, paragraphs ECR 425; Case 11/76 Netherlands v Commission [1979] 33 and 43; and, with respect to Article 48 (4), Case 149/79 ECR 245, and Federal Republic of Germany v Commission Commission v Belgium [1980] ECR 3881, paragraphs 19 [1979] ECR 343; and Case 9/79 Koschmiske v Raad van and 22. Arbeid [1979] ECR 2724, summary.

74. It seems clear that the reasons for the for determination of the basis thereof; and obligation to 'work in conjunction' laid that seems to be the solution adopted in the down in the directive are associated with the legislation of the majority of the Member public interest in ensuring the proper States. administration of justice, in cases involving the participation of lawyers trained under other legal systems. 79. I would not, however, go so far as to say that the Member States are precluded from laying down the general framework for work in conjunction, provided that they 75. The obligation to 'work in conjunction' do so in harmony with the principles to will thus be understood as a way of which I have referred. supporting or orientating the lawyer providing services by means of cooperation with a national lawyer, trained and estab­ lished in the country where the service is to 80. A Member State must therefore limit be provided. the obligations which it imposes to what is objectively necessary in order to render the professional cooperation effective; in particular, the terms laid down for working 76. The central feature of this obligation to in conjunction must not make the lawyer 'work in conjunction' therefore appears to providing services into a mere assistant of lie in the professional collaboration or the national lawyer or place him in a subor­ cooperation of the two lawyers, which is dinate position as regards conduct of the designed to compensate for any gaps in case with which he is to deal. knowledge of the German legal system and any lack of experience of German procedure, so as to ensure that the client's 81. Identical considerations must apply, case is properly conducted before the court. mutatis mutandis, to the proof of work in conjunction and determination of any liability attaching to the national lawyer 77. If that is the case, there is justification before the competent judicial authority. for leaving the lawyers to agree upon the terms on which they are to work in conjunction. They are both obliged to 82. It should also be pointed out that, in observe the rules of professional conduct of practice, regardless of the obligation to the host Member State, without prejudice, 'work in conjunction', a lawyer of a as regards the provider of services, to the Member State confronted by problems obligations to which he is also subject in his relating to the laws of another Member own Member State; both are in a position, State invariably contacts, of his own whilst complying with their ethical rules and volition, a colleague established in that exercising their professional independence, Member State, and agrees upon a proper to agree upon the basis of cooperation basis for cooperation with him. appropriate to the instructions given to them. 83. Having regard to these general considerations, it is not difficult to resolve 78. It may even be considered that it was the problems raised by the Commission's the legislature's intention, in leaving the allegations concerning the terms laid down term 'work in conjunction' undefined, to by the German legislation for work in rely upon an agreement between the lawyers conjunction.

89. In short, the German Government (4) The obligation to arrange to be accom­ claims that if it did not apply such rules, the panied by a German lawyer when German lawyer would be reduced to the visiting persons held in custody and the role of mere adviser or assistant to the prohibition of corresponding with them provider of services, and would not be in a otherwise than through such a lawyer position to assume his responsibility towards (end of the second sentence of the court in question. paragraph 4 (1)).

90. In evaluating that argument, I shall first 85. In general terms, the Commission try to determine the extent of that responsi­ considers that, by laying down those terms, bility vis-à-vis the court which the directive the implementing law exceeds the limits allows to be imposed upon the national determined by the Treaty and the directive, lawyer in appropriate cases. going further than is required by the need to work in conjunction. 91. It is apparent from the letter and the spirit of the second indent of Article 5 of 86. For its part, the German Government the directive that that responsibility relates refers to the fact that, as is permitted by the to the 'work in conjunction' itself.

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93. That responsibility will, at most, be of a professional conduct and makes it wholly disciplinary nature. impossible for the proof of work in conjunction to be provided before he begins to act and to remain valid until withdrawn. 94. The assumption of such responsibility does not appear to require the imposition of 98. In a word, it seems clear that any the conditions with which the Commission's responsibility attaching to the German action is concerned, at least as regards the lawyer regarding work in conjunction with first three allegations. the provider of services could be ensured by less restrictives methods than those provided

96. Likewise, the requirement of the conjunction of the kind provided for in the constant physical presence of the German implementing law, allowing the German

lawyer to oversee those activities closely and gericht and the Bundesgerichtshof), and to assume responsibility accordingly. before the Familiengerichte in matters of family law. 102. However, in my opinion, that does not mean that the provision in question is 106. The Commission considers that, by entirely proof against the Commission's virtue of Article 5 of the directive, lawyers' allegation. It imposes the conditions to freedom to provide services cannot be which I have referred indiscriminately, restricted to explanations in the oral phase whereas it should limit them to cases where of the procedure, by delegation from the they are required by the public interest, and lawyer admitted to appear before the court in particular for the purpose of ensuring in question.

103. According to the Commission, by the nationals of that State, the Court providing for the analogous application of observes that that principle of non-discrimi paragraph 52 (2) of the Bundesrechtsan nation does not, however, mean 'that all waltsordnung, paragraph 4 (3) of the national legislation applicable to nationals of implementing law lays down the condition that State and usually applied to the that, in cases for which German law permanent activities of undertakings estab requires a client to be represented by a lished therein may be similarly applied in its lawyer admitted to practise before the entirety to the temporary activities of under judicial authority in question, the lawyer takings which are established in other providing services is merely entitled to Member States' (paragraph 16). submit observations during the oral phase of the procedure, by delegation from a German lawyer admitted to appear before 108. Bearing that in mind, the Commission that authority. considers that lawyers providing services should be placed on the same footing as a German lawyer admitted to appear before

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116. As the Court held in its judgment in 10 114. For its part, the German Government Klopp of 12 July 1984, 'in the absence of states that the principle of allowing lawyers specific Community rules in the matter each to practise only in specified localities was Member State is free to regulate the exercise introduced in the interests of the proper of the legal profession in its territory'. administration of justice, being designed to foster communication between lawyers and 10 —Case 107/83 [1984] ECR 2971, paragraph 17.

OPINION OF MR DA CRUZ VILAÇA — CASE 427/85

117. In the same judgment (paragraph 20) it 122. In this case, therefore, the legislation is also stated that 'In view of the special applies indiscriminately to German nationals nature of the legal profession ... the second and to the nationals of other Member States Member State must have the right, in the and 'its provisions and objectives do not interests of the due administration of justice, permit the conclusion that it was adopted to require that lawyers enrolled at a Bar in for discriminatory purposes or that it its territory should practise in such a way as produces discriminatory effects'. 11

121. In the case of lawyers established in 125. The Commission conceded, in its reply, other Member States, they can exercise their that it would be conceivable to exclude from freedom to provide services on the same its criticism the situation with regard to the terms as any German lawyer who is not Bundesgerichtshof. However, there does not admitted to practise before the court in appear to be any sufficiently convincing question. The parallel is particularly striking justification for applying two different by virtue of the fact that Germany is a criteria in that way. federal State where lawyers move about in order to pursue their activities before courts 11 — Judgment of 12 February 1987 in Case 221/85 Commission in different Länder. v Belgium [1987] ECR 719, paragraph II. 12 — Case 33/74 [1974] ECR 1299, paragraph 12.

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V — Conclusion

126. Accordingly, I propose that the Court should declare that the Federal Republic of Germany has failed to fulfil its obligations under Articles 59 and 60 of the Treaty and Council Directive No 77 / 249 / EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services, in so far as it:

(a) Obliges a laywer from another Member State who, by way of provision of services, pursues in the Federal Republic of Germany activities relating to the representation and defence of a client in legal proceedings to act in conjunction with a German lawyer in those cases in which German law does not make representation by a lawyer mandatory;

(b) Requires that the German lawyer in conjunction with whom the lawyer providing services is to work should be the authorized representative or defending counsel in the proceedings;