THE SUPREME COURT
[Record No: 2011/314]
Clarke C.J. O'Donnell J. Dunne J. Volkmar Klohn
Appellant
and
An Bord Pleanala
Respondent
and
The General Council of the Bar of Ireland,
The Law Society of Ireland and the Attorney General
Notice Parties
Judgment of Mr. Justice Clarke, Chief Justice, delivered the 31st July, 2019.
1. Introduction
1.1 This judgment relates to a question which has indirectly arisen in the context of these proceedings, even though, unusually, it does not relate to any of the issues which arise between the parties to the proceedings as such. The issue concerns the question of whether a German Rechtsanwalt, Ms. Barbara Ohlig, has rights of audience in all the circumstances of the case. That issue arises out of the proper interpretation and application of the European Communities (Freedom to Provide Services) (Lawyers) Regulations 1979, as amended, ("the Regulations"), and as properly interpreted in the light of the provisions of European law which those regulations transposed in to Irish law, being Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services, as amended, commonly referred to as "the Lawyers' Services Directive".
1.2 In order to fully understand how that issue arises, it is appropriate to say a little about the procedural history of these rather lengthy proceedings.
2. The Procedural History
2.1 The history of these proceedings up to a certain point in time is fully set out in a judgment of this Court, Klohn v. An Bord Pleanala & Ors [2017] IESC 11. The appellant, Mr. Klohn, had represented himself in the appeal before this Court which led to that judgment and to the reference by this Court of certain issues of law to the CJEU.
2.2 When the matter was before the CJEU, Mr. Klohn was represented by Ms. Ohlig. The CJEU answered the questions posed by this Court in a judgment of 17 October 2018, Klohn v. An Bord Pleanala , Case C-167/17, ECLI:EU:C:2018:833. Thereafter, the matter came back before this Court for the purposes of the finalisation of Mr. Klohn's appeal in the light of the interpretation of relevant European law identified by the CJEU in its judgment.
2.3 In simple terms, the first main issue which this Court had to address concerned the order for costs originally made against Mr. Klohn in the underlying proceedings, the details of which are fully set out in the earlier judgment of this Court. It was accepted by the respondent, An Bord Pleanala ("the Board"), that the appeal would have to be allowed and that the costs awarded against Mr. Klohn had to be assessed on the basis that such costs were not prohibitively expensive in the sense in which that term is used in relevant European Union law. It was accepted in principle that the question of the assessment of costs on that basis could either be referred back to a Taxing Master or to the High Court on that basis or that this Court could conduct that exercise itself, with the Board favouring the latter course of action as a more efficient way of dealing with the matter in all the circumstances of the case. The question of the costs of the appeal (including the costs of the reference) also remained for determination.
2.4 Mr. Klohn wishes to instruct Ms. Ohlig to represent him in respect of those matters. It is in that context that the entitlement of Ms. Ohlig to represent Mr. Klohn in these proceedings has come into focus. The various notice parties were directed by the Court to be given an opportunity to make submissions on that question, having regard to the fact that the questions of whether the Regulations properly transposed the Lawyers' Services Directive and of the proper interpretation of the Regulations in that context involved the State, through the Attorney General. In addition, the two other notice parties, being the bodies who represent professional practitioners in Ireland, were also considered by the Court to have a legitimate interest in being heard on the matter, for the ruling of this Court on this issue potentially affects the rights of non-Irish qualified EU lawyers generally to represent parties in proceedings before the Irish courts. Before going on to set out the precise issues which have arisen, it is also appropriate to refer to a practice direction issued by the Chief Justice, Practice Direction SC11 - European Communities (Freedom to Provide Services) (Lawyers) Regulations, 1979 to 2004 ("the Practice Direction"). The Practice Direction sets out the procedure to be followed by a lawyer who wishes to exercise rights of audience under the Regulations. Ms. Ohlig filed an affidavit in accordance with the Practice Direction, although certain issues have arisen concerning whether she can be said, for certain technical reasons, to have complied with its terms. It will be necessary to return to those matters in due course.
2.5 However, the major issue which has arisen concerns the application of the requirement to the Regulations that a non-Irish qualified EU lawyer wishing to represent a party before a court in litigious proceedings in Ireland might be said to be required to practice "in conjunction with" an Irish qualified lawyer who enjoys a right of audience before the Irish courts in the ordinary way. The reason why that issue arises stems both from the legislative regime at European and national level and also from the case law of the CJEU. It is necessary to turn to that law in order to fully understand the dispute between the parties.
3. The Law
3.1 Article 1(1) of the Lawyers' Services Directive provides that the Directive applies to "the activities of lawyers pursued by way of provision of services". A list of professional designations existing in the member states which bring a person within the scope of the Directive is set out in Art. 1(2). This list includes the German professional designation Rechtsanwalt. Article 2 of the Directive provides that "[e]ach Member State shall recognize as a lawyer for the purpose of pursuing the activities specified in Article 1(1) any person listed in paragraph 2 of that Article".
3.2 Article 5 of the Directive provides as follows:-
3.3 Article 7(1) of the Directive provides that "[t]he competent authority of the host Member State may request the person providing the services to establish his qualifications as a lawyer".
3.4 As previously mentioned, the Lawyers' Services Directive is transposed into Irish law by the Regulations. Regulation 2(1) defines a "visiting lawyer" as "any person who is established in a Member State (other than the State) and is entitled to pursue in that Member State the professional activities of a lawyer" under a list of designations provided, which accords with that list in Art. 1(2) of the Directive.
3.5 Regulation 6 provides that:-
"Where a visiting lawyer is pursuing activities in the State relating to the representation of a client in legal proceedings, he shall work in conjunction with a lawyer who is entitled to practise before the judicial authority in question and who would, where necessary, be answerable to that authority."
3.6 Regulation 7(1)(a) provides that "[a] competent authority may request a person who is pursuing activities in the State by way of provision of legal services to establish his qualifications as a lawyer". It is this procedure of demonstrating qualifications which has been subsequently set out in the Practice Direction.
3.7 It follows, therefore, that the Lawyers' Services Directive permits a member state to impose an obligation that those who might be called "visiting" lawyers (being lawyers who, in accordance with the terms of that Directive, are qualified lawyers within the European Union but who wish to provide services in a member state in which they are not qualified), may be required, when involved in litigation, to do so "in conjunction with" a lawyer qualified in the member state in which the litigation is to be conducted.
3.8 However, the question of the proper interpretation of the scope which the Lawyers' Services Directive gives to member states to impose such a restriction was considered by the Court of Justice in Commission v. Germany , Case 427/85, [1988] E.C.R. 1123, ECLI:EU:C:1988:98. As it is the proper interpretation of the Regulations and the Lawyers' Services Directive in the light of the decision of the CJEU in Commission v. Germany (and certain other cases) that lies at the heart of the question which has arisen, it will be necessary to turn to the position of the parties on that issue in due course.
3.9 However, before so doing, it is perhaps appropriate first to deal with some of the more technical issues.
4. The Technical Issues
4.1 The Law Society of Ireland in their submissions to the Court drew attention to the fact that there is a distinction between the entitlement of non-Irish qualified lawyers to practice in Ireland on foot of, respectively, the European Communities (Lawyers' Establishment) Regulations 2003, as amended, which transposed into Irish law Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained ("the Lawyers' Establishment Directive") on the one hand, and the Lawyers' Services Directive and the Regulations, on the other. It was suggested, and I did not understand Ms. Ohlig to disagree, that, at the level of principle, the two regimes are mutually exclusive. A lawyer who becomes "established" in another member state must go through the processes required by the Lawyers' Establishment Directive and its Irish implementing measures. A lawyer cannot carry on business in a member state where they are not qualified in a manner which comes within the definition of "established" without going through those processes and cannot, therefore, rely on the Lawyers' Services Directive and its implementing measures to justify providing services in a member state in which they are not qualified if they are, in fact, established in that State.
4.2 The reason why it was said that this question arises in Ms. Ohlig's case is that in 2004, she registered in the ordinary way with the Law Society of Ireland under the Lawyers' Establishment regime. Following this, Ms. Ohlig held a qualifying certificate, certifying her entitlement to practice in this jurisdiction, for a number of years. However, she ceased to be registered as a qualified lawyer in this jurisdiction on 30 November 2012. The Law Society of Ireland argued that there was insufficient evidence provided by Ms. Ohlig to satisfy the Court that she was entitled to rely on the Regulations on that basis. Thereafter, she has given evidence that she returned to Germany and is no longer established in Ireland. Likewise, she has produced evidence that she is currently entitled to practice law in Germany as a Rechtsanwalt.
4.3 While I accept that there might be an issue in an appropriate case as to whether an non-Irish qualified lawyer was entitled to avail of the provisions of the Lawyers' Services Directive to provide legal services in Ireland if there was a basis for suggesting that that the lawyer concerned was actually established in Ireland, it does not seem to me that that issue truly arises on the evidence in this case and I am satisfied that Ms. Ohlig has established that she comes within the ambit of the Lawyers' Services Directive and its Irish implementing measures.
4.4 The next technical matter which arose concerned the provisions of the Practice Direction which, amongst other things, at para. 3(b), requires the non-Irish qualified lawyer to depose to "the name of the university or other institution from which he/she has obtained legal qualifications, including the year and title of the law degree awarded". Ms. Ohlig has pointed out that, while it is necessary to attend certain university courses in law, the entitlement to practice law in Germany requires that a candidate satisfy the relevant State body (which may be a separate body in respect of each German land or province) that they have the requisite skills and knowledge.
4.5 The only legitimate purpose of the Practice Direction is to provide a court with reasonable assurance that a visiting lawyer is entitled to pursue activities in the State, by way of provision of legal services in connection with the representation of a party in litigation, under the Regulations. It follows that a court is entitled to sufficient evidence to be satisfied that the person is qualified to practice law in their home member state. The Practice Direction (which predated the time at which practice directions had statutory force) cannot alter the legal requirements in that regard. It seems to me to follow that para. 3(b) of the Practice Direction must be interpreted as only requiring a visiting lawyer to produce evidence that they have whatever qualification is necessary to establish that they are entitled to offer services under the Directive. Any wider obligation would, in my view, be incompatible with European Union law.
4.6 In those circumstances, I am satisfied that Ms. Ohlig has met the requirements set out in para. 3(b) of the Practice Direction. For completeness, I might add that it would be my intention to amend the Practice Direction to bring clarity to this matter for the future.
4.7 For those reasons, I am satisfied that Ms. Ohlig has established that she is entitled to offer legal services in Ireland under the Lawyers' Services regime, such that the only question which arises in respect of her right of audience in these proceedings concerns the proper application of the "in conjunction with" requirement. I, therefore, turn to that question.
5. The "In Conjunction With" Requirement
5.1 As noted earlier, there is no doubt but that the Lawyers' Services Directive by its terms permits member states to adopt an "in conjunction with" requirement so far as litigious services are concerned and that Ireland, in transposing that directive by means of the Regulations, has purported to exercise that option in favour of adopting such a measure. Prima facie , therefore, the requirement to practice "in conjunction with" applies.
5.2 However, the scope of that potential restriction came under scrutiny in Commission v. Germany . There can be little doubt but that the decision of the CJEU in that case imposes some limitations on the extent to which the "in conjunction with" requirement can be imposed. What lies between the parties is as to the extent of the limitations identified by the CJEU.
5.3 Commission v. Germany concerned infringement proceedings brought by the European Commission in respect of certain German measures transposing the Lawyers' Services Directive, which required visiting lawyers to act only in conjunction with a German lawyer. Considering the scope of the requirement to "work in conjunction with", the CJEU set out the context in which the Directive should be interpreted, in light of the fundamental principles of the European Union as set out then in the EEC Treaty (now, the Treaty on the Functioning of the EU), at para. 12:-
"12. The third paragraph of Article 60 of the Treaty makes clear that a person providing a service may, in order to do so, temporarily 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". From this the Court has inferred in previous decisions (see in particular the judgment of 17 December 1981 in Case 279/80 Webb [1981] ECR 3305 ) that, regard being had to the particular nature of certain services, specific requirements imposed on the provider of the services cannot be considered incompatible with the Treaty where they have as their purpose the application of rules governing such activities, but that the freedom to provide services is one of the fundamental principles of the Treaty and may be restricted only by rules which are justified by the general good and are imposed on all persons pursuing activities in the host Member State, in so far as that interest is not safeguarded by the rules to which the provider of the service is subject in the Member State in which he is established .
5.4 The Court then turned to consider the relevant German implementing measures in light of the principles outlined, at paras. 13-15:- "13. The Directive must be interpreted in the light of those principles. Article 5 of the Directive 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. It is undisputed that, in proceedings for which German law does not make representation by a lawyer mandatory, the parties may conduct their cases themselves; in such proceedings, German law also allows representation to be entrusted to a person who is neither a lawyer nor a specialist, provided that that person does not act in a professional capacity.
14. In those circumstances, it is apparent that there is no consideration relating to the public interest which, in court proceedings for which representation by a lawyer is not mandatory, can justify the obligation for a lawyer established in another Member State, who is providing his services in a professional capacity, to work in conjunction with a German lawyer.
15. Consequently, a lawyer providing services, who must in any event, by virtue of Article 4 of the Directive, observe in all proceedings before the German courts in which he is involved the professional rules applicable in the Federal Republic of Germany, cannot be obliged by the German legislation to work in conjunction with a lawyer practising before the judicial authority in question in proceedings for which that legislation does not make representation by a lawyer mandatory. In so far as the German law of 1980, by the generality of its terms, extends that obligation to such proceedings, it infringes the Directive and Articles 59 and 60 of the Treaty."
5.5 In light of this determination of the Court, the CJEU proceeded to make a declaration that, amongst other things:- "...the Federal Republic of Germany has failed to fulfil its obligations under Articles 59 and 60 of the EEC Treaty and Council Directive 77/249/EEC to facilitate the effective exercise by lawyers of freedom to provide services,
by requiring the lawyer providing services to act in conjunction with a lawyer established on German territory, even where under German law there is no requirement of representation by a lawyer..."
5.6 "The CJEU later discussed the extent and purpose of the obligation to "work in conjunction", in the context of the German provisions requiring, inter alia, that a visiting lawyer be accompanied by a German lawyer in oral proceedings at all times. At paras. 22-24, it was stated:-
"22. ...[T]he directive does not in fact explain the meaning of the expressions "work in conjunction" and "answerable to [the judicial] authority" used in Article 5. Those expressions must therefore be interpreted in the light of the purpose of the Directive, which is "to facilitate the effective exercise by lawyers of freedom to provide services".
23. Consequently, whilst the Directive allows national legislation to require a lawyer providing services to work in conjunction with a local lawyer, it is intended to make it possible for the former to carry out the tasks entrusted to him by his client, whilst at the same time having due regard for the proper administration of justice. Seen from that viewpoint, the obligation imposed upon him to act in conjunction with a local lawyer is intended to provide him with the support necessary to enable him to act within a judicial system different from that to which he is accustomed and to assure the judicial authority concerned that the lawyer providing services actually has that support and is thus in a position fully to comply with the procedural and ethical rules that apply.
24. 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 ethical rules and in the exercise of their professional independence, of agreeing upon a form of cooperation appropriate to their client' s instructions.
25. That does not mean that it would not be open to the national legislatures to lay down a general framework for cooperation 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."
5.7 Ms. Ohlig argues that it is clear from the judgment of the CJEU in that case that a requirement to practice in conjunction with a local lawyer cannot be imposed in any case where a lawyer is not required. In that regard, she places particular emphasis on the declaration granted by the CJEU in the proceedings.
5.8 The Attorney General and the Law Society place emphasis on the fact that the Court, in its judgment, made express reference to the fact that Germany allows, at least in some circumstances, a non-qualified third party to represent a client in litigious proceedings. On the basis that Irish law does not permit a party to be represented by anyone other than a qualified lawyer in good standing, it is suggested that a distinction can be drawn between the position in Ireland and that in Germany. Thus, it is argued that it was permissible for Ireland to impose an "in conjunction with" requirement by means of the Regulations and that the requirement in question therefore applies to Ms. Ohlig so that she cannot exercise a right of audience in these proceedings unless she has identified an Irish lawyer with whom she is to practice in conjunction. On the basis that she has not identified such a lawyer as of now, it is suggested that she has not established an entitlement to exercise a right of audience.
5.9 The General Council of the Bar of Ireland adopted a somewhat intermediate position in that it was acknowledged that there were certain aspects of the judgment of the CJEU in Commission v. Germany from which it might be inferred that a member state which does not require that any parties are represented by a lawyer cannot exercise the option contained in the Lawyers' Services Directive to require practice "in conjunction with". On the other hand, the General Council of the Bar of Ireland accepted that the matter was not clear not least by reason of the specific reference made in the judgment of the CJEU in Commission v. Germany to the fact that non-lawyer representation was possible, at least in certain circumstances, in the German legal system.
5.10 Ms. Ohlig did emphasise that, in her view, the circumstances in which such non-lawyer representation was permissible were quite limited and drew attention to the observations to be found in the Opinion of the Advocate General Cruz Vilaça in Commission v. Germany , delivered on 3 December 1987, ECLI:EU:C:1987:523, in that regard. However, counsel for the Attorney General and counsel for the Law Society of Ireland considered that it would have been unnecessary for the CJEU to make any specific reference to the possibility of non-lawyer representation in Germany if that fact had not at least been a factor to be taken into account in the overall assessment of the case.
5.11 Thus, the real issue which separated the parties at the end of the oral argument was as to whether it can be said that Commission v. Germany has, in substance, the effect of rendering invalid the imposition of an "in conjunction with" obligation in all circumstances where the party whom the visiting lawyer seeks to represent would be permitted, in accordance with national law, to represent themselves.
5.12 There were certain other questions debated at the hearing, concerning the nature of the obligation to practice "in conjunction with", in the event that it was determined that such an obligation could validly be imposed. Ultimately, I did not consider that there was any significant issue between the parties in that regard but it is appropriate to record the position in that regard in this judgment.
6. The Nature of the Obligation to Practice "In Conjunction With"
6.1 Without prejudice to the central issue which arises for judgment as to whether it is possible to impose an obligation to practice "in conjunction with" at all, it does seem clear from Commission v. Germany that, where such an obligation is validly imposed, its extent can only be such as is required to protect the public interest issues which justify the imposition of the "in conjunction with" requirement in the first place.
6.2 The criteria which must be used to assess whether any such measures are appropriate have been referred to on many occasions but are conveniently summarised in the opinion of Advocate General Wathelet of 9 February 2017 in Lahorgue v. Ordre des avocats du barreau de Lyon and Others , Case C-99/16, ECLI:EU:C:2017:107. Advocate General Wathelet stated that national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the European treaties are authorised provided that they fulfil four conditions. First, such measures must be applied in a non-discriminatory manner. Second, the relevant measures must be justified by overriding reasons in the public interest. Third, the measures in question must be suitable for securing the attainment of the objective pursued. Fourth and finally, those measures must not go beyond what is necessary in order to attain that objective. It follows, therefore, that, even if it is permissible to impose an "in conjunction with" restriction, that requirement can only go so far as is necessary in order to obtain the public interest for whose attainment the restriction is assessed to be suitable.
6.3 It follows, in turn, that it is necessary to identify the public interest concerned so as to assess whether the measure adopted is proportionate in seeking to attain that interest. It has been consistently held by the CJEU that there is a legitimate public interest both in protecting the interests of litigants as consumers and also in protecting the administration of justice. Those interests are capable of justifying restrictions on the ability of persons to provide legal services and, in particular, such services connected with the litigious process. Clearly, the scope of the "in conjunction with" requirement must be assessed on that basis. It follows that the interpretation of the extent of the obligation to practice "in conjunction with" a locally qualified lawyer cannot go beyond that which is necessary to protect the interests of litigants as consumers of legal services and also to protect the proper administration of justice.
6.4 Independent of the central issue which arose in Commission v. Germany to which reference has already been made, the CJEU in that case found incompatible with Union law a series of specific measures which had been adopted in Germany which were held to amount to an excessive interference in the freedom of lawyers to provide cross-border services and were found not justified by the legitimate public interest ends sought to be served. For example, rules which required the local lawyer to be the principal lawyer on record in the case were found to be disproportionate.
6.5 However, it was conceded by counsel on behalf of the Law Society of Ireland (and not disagreed with by counsel for the Attorney General) that the requirement to practice "in conjunction with" was limited. It should, of course, be recorded that, in Ireland, having regard to the divided professions of barrister and solicitor, it is, at least at present, the solicitor who must be on record with a barrister being instructed by that solicitor to conduct the case if it is decided that the services of a barrister are necessary. For that reason, the question of the identity of the lawyer on record is a matter of particular interest to the Law Society of Ireland. However, that party did not argue that the Irish lawyer in conjunction with whom, on its case, Ms. Ohlig was required to conduct the case, need necessarily be the lawyer on record or, indeed, the lawyer who presented the case in court.
6.6 In response to questions from the Court, it did not seem to me that any of the notice parties went beyond suggesting that it was necessary for the visiting lawyer to identify an Irish-qualified lawyer with whom they were to practice in conjunction and to obtain the agreement of that lawyer to become involved. It was suggested that it was appropriate to leave it to the two lawyers concerned (being the visiting lawyer and the Irish-qualified lawyer) to work out the precise roles which they both would play, with there being no obligation on the Irish-qualified lawyer to carry out any particular task. Rather, the role of the Irish-qualified lawyer is to be an identified lawyer who would be available to assist the visiting lawyer in the event that the proper representation of their client and the proper fulfilment of their duties to the Court required knowledge or advice which might be needed precisely because the visiting lawyer might have limited knowledge of what might turn out to be relevant aspects of national law, practice and procedure or ethics. It was accepted that the extent to which such cooperation might be required would be very much dependent on the circumstances of any individual case but that there was a real risk that a visiting lawyer might, inadvertently, fail in their duties to their client or their obligations to the Court if they had not at least identified a lawyer qualified to practice in Ireland who could assist on such matters.
6.7 Given that limited and flexible approach to the question of the extent of the obligation to practice "in conjunction with", it did not seem to me that any real question of the compatibility of such an obligation with Union law could arise except, of course, having regard to the fundamental question of whether it was permissible to impose the "in conjunction with" obligation in the first place.
6.8 In those circumstances, it seems to me that the issue of whether Ms. Ohlig is entitled to a right of audience to represent Mr. Klohn in these proceedings comes down to a question of whether, properly interpreted, Union law (as considered by the CJEU in Commission v. Germany ) permits the imposition of an "in conjunction with" requirement at all in circumstances where it is clear that Mr. Klohn would undoubtedly be entitled to represent himself in these proceedings. If such an obligation cannot be imposed in a manner compatible with Union law in those circumstances, then Ms. Ohlig is clearly entitled to represent Mr. Klohn. If it is permissible for Ireland to impose such a requirement in the circumstances of this case, then it is difficult to see how the scope of that requirement as identified earlier is not fully compatible with Union law such that Ms. Ohlig cannot exercise a right of audience without identifying an Irish-qualified lawyer with whom she will practice in conjunction, while leaving the nature of who is to carry out what role to the agreement of both lawyers whom, it must be assumed, will comply with their respective professional obligations so as to ensure that they do not allow the client to be represented other than in accordance with best professional standards and that the obligations of lawyers to the courts in Ireland are fully complied with.
6.9 The issue, therefore, comes down to whether Commission v. Germany can be said to prohibit any requirement that a visiting lawyer practice in conjunction with an Irish-qualified lawyer in circumstances where the party who is to be represented could self-represent. That is the central issue.
7. The Central Issue
7.1 I have concluded that the answer to this question of European Union law is not clear within the meaning of the CILFIT jurisprudence (see Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health , Case 283/81 [1982] ECR 3415, ECLI:EU:C:1982:335). It follows that it will, in my view, be necessary to refer questions to the CJEU to enable this Court to reach a final conclusion. On that basis, it is only necessary briefly to set out the principal arguments made by the parties.
7.2 As already noted, the central dispute between the parties is as to whether Commission v. Germany establishes that no such restriction can be imposed where self-representation is possible. In favour of that proposition, Ms. Ohlig argues that the first declaration granted by the CJEU in Commission v. Germany is clear and unqualified and is to that effect. The Law Society of Ireland and the Attorney General draw attention to para. 13 of the judgment, where the CJEU refers to the fact that in proceedings for which German law does not make representation by a lawyer mandatory, the parties may conduct their cases themselves and that in such proceedings, "German law also allows representation to be entrusted to a person who is neither a lawyer nor a specialist, provided that that person does not act in a professional capacity".
7.3 The judgment goes on in para. 14 to refer to the fact that "in those circumstances", which seems to be a reference to the circumstances just identified, "no consideration relating to the public interest… can justify the obligation for a lawyer… to work in conjunction with a German lawyer". The Law Society of Ireland and the Attorney General suggest that, by including the fact that it is permissible in German law, at least in certain circumstances, to be represented by a third party who is neither a lawyer nor a specialist, as one of the "circumstances" justifying the conclusion, the CJEU has at least left open the question of whether a different result might arise in a jurisdiction such as Ireland where such third party representation is not permissible.
7.4 In addition, it is said on behalf of the Law Society of Ireland and the Attorney General that a consequence of the interpretation sought to be placed on the law as identified in Commission v. Germany by Ms. Ohlig would be that it would be necessary to interpret the Lawyers' Services Directive as meaning that the option to impose an "in conjunction with" obligation is not available at all to any member state which does not require representation to be solely by a lawyer. It is accepted that there is clear reasoning for the proposition that it would be wholly inappropriate to permit a member state to restrict the ability of a visiting lawyer to represent a party before its courts if it allowed third parties, who are not lawyers at all, to carry out that task at least in some circumstances. However, it was argued that the same logic did not apply in the case of a country whose public policy suggests that there should be no representation save by lawyers.
7.5 Attention was also drawn to the fact that this Court has recently confirmed, in Allied Irish Bank plc v. Aqua Fresh Fish Ltd [2018] IESC 49, the proposition which had appeared to be the law since Battle v. Irish Art Promotion Centre Limited [1968] I.R. 252, which is to the effect that a corporation cannot self-represent save in exceptional circumstances, thus creating a category of party (but not of proceedings) where, it might appear, representation by a visiting lawyer other than in conjunction with an Irish-qualified lawyer would not be permissible on the basis of the argument put forward by Ms. Ohlig. Whether that consideration of national law could have any bearing on the ultimate determination of the legal issue of Union law which arises in this matter is ultimately a question for the CJEU.
7.6 As noted earlier, it is also clear that there is a significant difference between the nature of the obligation which Irish law would impose to practice "in conjunction with" an Irish-qualified lawyer (assuming that the imposition of such an obligation is permissible), on the one hand, in contrast to the undoubtedly more onerous obligations which rested on a person representing a client in proceedings before the German courts at the time of Commission v. Germany . None of the specific obligations imposed by German law, which were the subject of adverse findings of the Court of Justice in Commission v. Germany , would apply in Ireland in the event that an obligation to practice "in conjunction with" can be imposed. As noted earlier, the only obligation would be that there would be an Irish-qualified lawyer identified who would be available to be of assistance to the lawyer exercising rights under the Lawyers' Services Directive should that lawyer require help in relation to matters of national law, national practice and procedure or ethical rules. As the visiting lawyer would be required, in accordance with Irish ethical rules, to familiarise themselves with any issues of national law relevant to the proceedings and to draw the Court's attention to any such matters even if unfavourable to their client's case, it would follow that the visiting lawyer would, as a matter of ethics, be required to consult with an Irish-qualified lawyer in respect of such matters in the event that they entertained any doubt about any such matters relevant to the case.
7.7 In addition, it should be noted that Ireland operates a system where the norm is that a party may recover the full costs of representation in legal proceedings where that party is successful. It thus follows that, ordinarily, a visiting lawyer representing a successful party in proceedings will be able in practice to recover their full costs (assessed on the basis of prevailing market rates) from the losing party. While the primary obligation to pay a lawyer rests on the party whom the lawyer represents and while the order for costs requires the losing party to reimburse the successful party in respect of reasonable costs paid or owed to that party's lawyers, the fact that it is possible to recover full costs against a defendant or respondent who is able to pay frequently provides a practical means of payment to a lawyer. Such measures are not available to a self-represented litigant who only can recover expenses incurred in self-representation. Thus the ability to be recognised as a lawyer formally on record for a party in Irish proceedings carries with it benefits beyond the exercise of the right of audience, for it may have significant financial consequences as well.
7.8 Finally, it is, perhaps, appropriate to record that the right of natural persons to self-represent at all levels of the Irish legal system is seen, in Irish constitutional law, as part of the fundamental right of litigants to have access to the Court (in the case of plaintiffs or those in a similar position) or to defend. For that reason, it is not considered appropriate (and potentially might not be permissible) to restrict the right to self-represent. However, it is fair to say that the consistent case law of the Irish courts has placed a very strong marker against permitting any persons other than those who are qualified lawyers with rights of audience (being solicitors and barristers in good standing) to represent parties before the Court. This may in part be due to the additional obligations which lie on lawyers in a common law system to assist the Court in relation to all legal issues relevant to a case. While it would be particularly surprising if the ethical rules applicable to lawyers in any democratic jurisdiction did not preclude such lawyers from misleading a court in any way, lawyers in Ireland have an obligation to research any legal issue potentially relevant to the proceedings and inform the Court of any legal materials (including case law) which might potentially impact on the Court's legal assessment. That obligation performs a particularly important part of the administration of justice in a jurisdiction where the litigation process, as is usual in the common law world, transfers a material part of the burden of legal research onto the parties.
7.9 In that context, it must be accepted that self-representation creates a difficulty for the Court where it does not have the benefit of the assistance of legal counsel in the manner just described. Be that as it may, the Court is required to live with that difficulty because of the weight given to the right of access to the Court and the right of defence in Irish constitutional law. But it forms the backdrop to the insistence of Irish law that, with a narrow exception of those natural persons who self-represent, all representation must be by a lawyer.
8. Conclusions
8.1 For the reasons set out earlier in this judgment, I am satisfied that Ms. Ohlig has established that she is entitled to avail of the provisions of the Regulations as the Irish transposing measure of the Lawyers' Services Directive. On that basis, she is prima facie entitled to offer legal services in Ireland in accordance with the terms of the Regulations. The only question about her entitlement to represent Mr. Klohn in these proceedings turns, therefore, on the question of whether Ireland is entitled to impose an "in conjunction with" obligation for the exercise by Ms. Ohlig of her rights of audience in all the circumstances of this case.
8.2 For the reasons set out earlier in this judgment, I am of the view that the answer to that question is a matter of Union law in respect of which the answer is not clear. It follows that it is necessary to refer the matter to the CJEU under the provisions of Article 267 of the Treaty on the Functioning of the European Union.
8.3 It should be recalled that the case law of the CJEU makes clear that it is for this Court alone to formulate the precise terms of the order of reference. However, the Court feels it appropriate in the circumstances of this case to afford the parties an opportunity to make any observations which they wish. The Court will, therefore, circulate to the parties a draft of the proposed Order of Reference within the next 10 to 14 days. The parties will have until Friday September 7 to submit observations in writing. For the avoidance of doubt, it is important to note that the decision to refer and the broad nature of the issue to be referred have already been taken. Observations are required only in respect of the form of the reference document. In the light of the Court's consideration of such observations as the parties may make, the Court will finalise the text of the order for reference which will then be transmitted to the CJEU.
