C-294/89
ECLI:EU:C:1991:190
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COMMISSION v FRANCE
O P I N I O N O F M R ADVOCATE GENERAL TESAURO delivered on 7 May 1991 *
Mr President, The Commission is correct in arguing that Members of the Court, the first paragraph of Article 126-2 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 1. In this application the Commission is what is laid down by the directive, lawyers asking the Court to declare that the French of French nationality who are established in Republic has failed to fulfil its obligations another Member State. under Articles 59 and 60 of the EEC Treaty and Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services. '
Moreover, even if, as is clear from the wording of the other provisions of the decree (see, for instance, Article 126-1), that exclusion would seem to be involuntary and probably the result of an oversight by the More specifically, the Commission chal- legislature, the fundamental need for legal lenges the provisions of Decree N o 79-233 2 certainty nevertheless warrants the which restrict the scope of the Community amendment of the provision in question. 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 3. Secondly, the Commission points out territorial exclusivity of the ius postulandi. 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, 2. I shall deal briefly with the first two the fifth paragraph of Article 126-3 of the complaints which are not disputed by the decree is contrary to Article 5 of the French Government and which, in my view, directive, which instead provides for the are well founded. possibility of imposing that obligation only in respect of the pursuit of activities relating * Original language: kalian. 1 — OJ 1977 L 78, p. 17. to the representation and defence of a client 2 — Official Journal of the French Republic of 23 March 1979. in legal proceedings.
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O P I N I O N OF MR TESAURO — CASE C-294/89
That complaint as well would seem to be proceedings or carry out the procedural well founded. It follows from the case-law formalities, the lawyer must, in cases where of the Court that Anicie 5 of the directive it is compulsory to be represented by a cannot have the effect of imposing upon a lawyer, retain a lawyer who is a member of lawyer providing services requirements for the Bar of the Tribunal de Grande Instance which there is no equivalent in the or, so far as the Cour d'Appel is concerned, professional rules which would apply in the an avoué practising before that court. 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 5. Whilst acknowledging that, as Article 5 mandatory, can justify the obligation for a of the directive provides, it is permissible to lawyer to work in conjunction with a lawyer require a lawyer providing services to work practising before the court in question. 3 in conjunction with a colleague who practises before the judicial authority in question, 4 the Commission regards as inconsistent with Community law the prohibition on a lawyer established in 4. The Commission's third criticism, unlike another Member State representing a party the first two, is challenged by the defendant. to a case by carrying out the requisite procedural formalities.
In order to understand the nature of that allegation a brief preliminary explanation is called for. France, like other Member 6. In reply the French Republic states that States, applies the principle of the territor- the rule concerning the territorial exclusivity iality of the ius postularteli, according to of the ius postulandi, as applied in France, is which a lawyer, whilst being authorized to fully justified inasmuch as it is intended to provide assistance throughout the national ensure the proper administration of justice territory, is entitled to represent a party to a by guaranteeing permanent contact between case, and thus to carry out the requisite the lawyer and the court and enabling the procedural formalities in his capacity as local lawyer to follow the different stages of the procedure so as to be answerable to the authorized representative, only before the court. Tribunal de Grande Instance (Regional Court) of the Bar of which he is a member.
The defendant adds that, in its judgment in That restriction, which applies in general Case 4 2 7 / 8 5 , 5 the Court did not intend to terms to all lawyers established on French criticize the territorial exclusivity of the ius territory, is extended to lawyers providing postulandi as such, but only certain services who are established in other Member States by the fourth paragraph of 4 — See, for the same view, the Court's judgment in Article 126-3 of the decree, according to Commission v Germany, cited above, paragraph 43. It should be noted that Germany has intervened in these which, in order to be able to conduct the proceedings in support of the defendant under the misap- prehension that the Commission did not accept the argument that the local lawyer must be admitted to 3 — Judgment in Case 427/85 Commission v Germany [1988] practise before the judicial authority in question. ECR 1123, paragraphs 13 and 14. 5 — Commission v Germany, cited above.
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COMMISSION v FRANCE
particularly vexatious formalities, which are gain admission to practise before a judicial not justified by objective requirements. 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 7. Let me say at once that the French temporary nature pursued by lawyers estab- Government's point of view does not, it lished in other Member States, since the seems to me, correspond to a correct conditions of law and fact which apply to reading of the relevant provisions of the those lawyers are in that respect funda- Treaty. mentally different.
On the basis of Article 59, all restrictions on 8. As for the reasons relied upon by the freedom to provide services must be defendant, it must be borne in mind that abolished in order to enable, in particular, similar objections had been raised by the the person providing a service, as laid down German Government in Case 427/85 and by the third paragraph of Article 60, to rejected by the Court. 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. 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 However, those provisions, whose principal frequently stated that modern methods of aim is to enable the person providing the transport and telecommunications make it service to pursue his activities in the host possible to ensure that lawyers maintain Member State without suffering any contact with their clients and the judicial discrimination, do not mean that all national authorities in an appropriate manner. 8 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 9. Admittedly, the French Government's other Member States. 6 concern is, in any event, 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 justice. As the Court has pointed out in Case 427/85, 7 the rule of territorial exclusivity is part of national legislation normally relating to a permanent activity of lawyers estab- lished in the territory of the Member State From that point of view, therefore, it is concerned, all of whom have the right to indisputable that the court must be afforded, in addition to the assistance provided by the 6 — Judgment in Case 279/80 Webb [1981] ECR 3305, paragraph 16. 8 — Judgment in Case 107/83 Ordre des Avocats au Barreau de 7 — Judgment in Commission v Germany, cited above, para- Paris v Klopf [1984] ECR 2971, paragraph 21; graphs 41 and 42. Commission v Germany, cited above, paragraph 28.
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OPINION OF MR TESAURO — CASE C-294/89
most modern methods of telecommuni- Such a provision would seem to me, cations, the possibility of communicating therefore, to be suited to the purpose of easily and swiftly with the parties' lawyers, ensuring that legal proceedings are in order to ensure that the proceedings are conducted properly and efficiently, without conducted expeditiously in compliance with placing unnecessary obstacles in the path of the principle that each side must have the freedom to provide services. opportunity to state its case.
11. Finally, so far as concerns the account- ability of the local lawyer to the judicial While that is true, it seems to me that authorities, the Court has already pointed appropriate contact between court and out in Case 427/85 that, in principle, the lawyer could be ensured, also with a view to lawyer providing services and the local avoiding dilatory practices or objective lawyer selected, both being subject to the delays, by a provision which is less ethical rules applicable in the host Member burdensome for the lawyer providing the State, must be regarded as being capable, in services such as, for example, the compliance with those ethical rules and in requirement of an address for service at the the exercise of their professional inde- chambers of the local lawyer in conjunction pendence, of agreeing upon a form of with whom he works. cooperation appropriate to their client's instructions.
10. Moreover, in response to an express Hence although it is open to the national question on that point, the Commission legislature to lay down a general framework itself stated at the hearing, confirming a for cooperation, the resultant obligations standpoint which it had already taken in must not be disproportionate in relation to Case 4 2 7 / 8 5 , 9 that it considered the the objective of the duty to work in requirement of an address for service to be conjunction, which is to enable the lawyer an acceptable, albeit extreme, possibility. providing services to carry out the tasks entrusted to him by his client with due regard for the proper administration of justice.
It should be borne in mind, in addition, that the Court's Rules of Procedure also seem to lay down the aforesaid requirements, by In that light, the local lawyer cannot be providing that the applicant must have an required to act as authorized representative address for service in the place where the or defending counsel, or to sign the court has its seat (Article 38(2)). 1 0 procedural documents: those conditions would seem to be neither necessary nor 9 — See the Repon for the Hearing in Case 427/85 useful for the provision of the support Commission v Germany, cited above, p. 1134. 10 — It should be noted that in their new version the Rules of required by the lawyer providing services. ' ' Procedure, which are being published in the Official ournal, also provide for an address for service, but no Í onger treat an application as inadmissible by way of 11 — Judgment in Commission v Germany, cited above, para- penalty for non-compliance. graphs 24 to 26.
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12. In the light of the foregoing considerations, therefore, I propose that the Court:
(1) declare that the French Republic has failed to fulfil its obligations under Articles 59 and 60 of the EEC Treaty 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 the French Republic 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 exclu- sivity of the ius postulandi;
(2) order the defendant to pay the costs;
(3) order the intervener to bear its own costs.
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