Arrêt de la Cour

Case C-289/02

AMOK Verlags GmbH
v
A & R Gastronomie GmbH

(Reference for a preliminary ruling from the Oberlandesgericht München (Germany))

«(Freedom to provide services – Lawyer established in one Member State working in conjunction with a lawyer established in another Member State – Legal costs to be reimbursed by the unsuccessful party in a dispute to the successful party – Limitation)»

Opinion of Advocate General Mischo delivered on 18 September 2003 I - 0000 Judgment of the Court (Fifth Chamber), 11 December 2003 I - 0000

Summary of the Judgment

Freedom to provide services – Lawyers – Directive 77/249 – Reimbursement of legal costs by the unsuccessful party in a dispute – Judicial rule limiting the reimbursement of fees of lawyers established in other Member States to the scale applicable to national lawyers – Whether permissible – Reimbursement of a local lawyer excluded in the event of his being obliged to work in conjunction with a foreign lawyer – Not permissible
( Arts 49 EC and 50 EC, Council Directive 77/249, Art. 4)

Article 49 EC, Article 50 EC and Directive 77/249 to facilitate the effective exercise by lawyers of freedom to provide services must be interpreted as not precluding a judicial rule of a Member State limiting to the level of the fees which would have resulted from representation by a lawyer established in that State the reimbursement, by an unsuccessful party in a dispute to the successful party, of costs in respect of the services provided by a lawyer established in another Member State.With the exception of the conditions requiring residence or registration with a professional organisation, mentioned in Article 4 of Directive 77/249, all other conditions and rules in force in the host country may apply to the transfrontier provision of services by a lawyer. The reimbursement of the fees of a lawyer established in a Member State may therefore also be made subject to the rules applicable to lawyers established in another Member State.Article 49 EC and Directive 77/249 must, however, be construed as precluding a judicial rule of a Member State which provides that the successful party to a dispute, in which that party has been represented by a lawyer established in another Member State, cannot recover from the unsuccessful party, in addition to the fees of that lawyer, the fees of a lawyer practising before the court seised of the dispute who, under the national legislation in question, was required to work in conjunction with the first lawyer.The obligation to have recourse to the services of a lawyer practising before the court seised means that the resulting costs will be necessary for the purposes of appropriate legal representation. The general exclusion of such costs from the amount to be reimbursed by the unsuccessful party would penalise the successful party, with the effect that parties to legal proceedings would be strongly discouraged from having recourse to lawyers established in other Member States. The freedom of such lawyers to provide their services would thereby be obstructed and harmonisation of the sector, as initiated by Directive 77/249, would be adversely affected.see paras 29-31, 39, 41, operative part 1-2

JUDGMENT OF THE COURT (Fifth Chamber)
11 December 2003 (1)

((Freedom to provide services – Lawyer established in one Member State working in conjunction with a lawyer established in another Member State – Legal costs to be reimbursed by the unsuccessful party in a dispute to the successful party – Limitation))

In Case C-289/02,

REFERENCE to the Court under Article 234 EC by the Oberlandesgericht München (Germany) for a preliminary ruling in the proceedings pending before that court between

AMOK Verlags GmbH

and

A & R Gastronomie GmbH,

on the interpretation of Articles 12 EC and 49 EC,

THE COURT (Fifth Chamber),,

composed of: P. Jann (Rapporteur), acting for the President of the Fifth Chamber, A. La Pergola and S. von Bahr, Judges,

Advocate General: J. Mischo,
Registrar: M.-F. Contet, Principal Administrator,

after considering the written observations submitted on behalf of:

─ A & R Gastronomie GmbH, by R. Hauff and A. Konradsheim, Rechtsanwälte,

─ the German Government, by W.-D. Plessing and A. Dittrich, acting as Agents,

─ the Austrian Government, by E. Riedl, acting as Agent,

─ the Commission of the European Communities, by M. Patakia and C. Schmidt, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of A & R Gastronomie GmbH and of the Commission at the hearing on 19 June 2003,

after hearing the Opinion of the Advocate General at the sitting on 18 September 2003,

gives the following

Judgment

1 By order of 25 July 2002, received at the Court on 9 August 2002, the Oberlandesgericht München (Higher Regional Court, Munich) referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Articles 12 EC and 49 EC.

2 That question has arisen in a dispute between AMOK Verlags GmbH, a company established under German law ( AMOK), and A & R Gastronomie GmbH, a company established under Austrian law ( A & R), concerning reimbursement of legal costs in the case where one party has been represented in legal proceedings by a lawyer established in another Member State.

The legal framework

Community law

3 Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (OJ 1977 L 78, p. 17) ( the Directive), which was adopted on the basis of Article 57 of the EC Treaty (now, after amendment, Article 47 EC) and Article 66 of the EC Treaty (now Article 55 EC), applies, within the terms of Article 1 thereof, to the activities of lawyers pursued by way of provision of services.

4 Article 4 of the Directive provides:

1. 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.

2. A lawyer pursuing these activities shall observe the rules of professional conduct of the host Member State, without prejudice to his obligations in the Member State from which he comes.

...

5 Article 5 of the Directive provides: 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:...

─ to work in conjunction with a lawyer who practises 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.

National legislation

6 In Germany, Paragraph 91(1) of the Zivilprozessordnung (Code of Civil Procedure), in its version of 12 September 1950 (BGBl. 1950 I, p. 533) ( the ZPO), provides that the successful party in a dispute is entitled to receive reimbursement from the unsuccessful party of its legal costs in so far as those costs were necessary for bringing or defending the case.

7 So far as the amount of legal costs is concerned, this is calculated in accordance with a scale laid down in the Bundesgebührenordnung für Rechtsanwälte (federal regulation on lawyers' fees) of 26 July 1957 (BGBl. 1957 I, p. 907) ( the BRAGO).

8 The Gesetz über die Tätigkeit europäischer Rechtsanwälte in Deutschland (Law on the activities of European lawyers in Germany) of 9 March 2000 (BGBl. 2000 I, p. 182) ( the EuRAG) transposed in German law several directives on the pursuit by lawyers of their professional activities. Paragraph 28 of the EuRAG provides:

(1) In judicial proceedings and administrative proceedings resulting from criminal offences, summary offences, service-related faults or infringement of professional obligations, in which the client cannot represent himself in bringing the action or in conducting his own defence, a European lawyer providing services may act as the representative of or as defence counsel for a client only pursuant to an agreement with a lawyer (domestic lawyer).

(2) The domestic lawyer must be authorised to provide representation or defence services before the judicial or administrative authority in question. He shall ensure that the European lawyer providing services complies with the principles of the proper administration of justice when providing representation or defence services.

(3) In the absence of agreement between the parties concerned to the contrary, no contractual relationship is established between the domestic lawyer and the client.

...

9 So far as concerns the fees of the domestic lawyer referred to in Paragraph 28 of the EuRAG, Paragraph 24a(1) of the BRAGO, in the version of 14 March 1990 (BGBl. 1990 I, p. 479), provides:

(1) If the lawyer acts as a domestic lawyer, pursuant to Paragraph 28 of the Law on the activities of European lawyers in Germany, he shall receive remuneration equivalent to the fee for lodging the application (Prozessgebühr) or for assuming responsibility for the conduct of the case (Geschäftsgebühr) which he would receive had he been himself instructed by the client. This remuneration is to be charged to the corresponding fee received by the lawyer instructed by the client.

...

The dispute in the main proceedings and the question submitted for preliminary ruling

10 In proceedings before the Landgericht (Regional Court) Traunstein (Germany) between AMOK and A & R, the latter had been represented by a lawyer who was established in Austria and worked in conjunction with a lawyer established in Germany, in accordance with Paragraph 28 of the EuRAG. As it was the successful party in the dispute, A & R sought reimbursement of its legal costs from AMOK.

11 In that connection, it first sought, with regard to the lawyer established in Austria, the associated costs calculated according to the Austrian scale, which were significantly higher than the costs resulting from application of the BRAGO. A & R thereafter requested reimbursement of the fees paid to the lawyer established in Germany pursuant to Paragraph 24a(1) of the BRAGO.

12 AMOK objected to A & R's request on the ground that a lawyer established in Austria was not necessary for the proceedings in this case nor, consequently, was his cooperation with the lawyer established in Germany. In any event, in a dispute before a German court, the reimbursement of costs by the unsuccessful party must be calculated by reference to the German scale, which is the only scale that is foreseeable.

13 The Oberlandesgericht München, before which the request for reimbursement of the legal costs was brought on appeal, states that it consistently applies the principle that a party which is established in another Member State and arranges to be represented by a lawyer established in that State may claim from the other party reimbursement of its legal costs only in the amount of those which would have resulted from the involvement of a lawyer established in Germany, and that it cannot in any event claim the costs o