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Supreme Court and trans-EU representation

15 Oct 2021 / EU Print

Right of audience

In April, the Supreme Court held that a visiting German lawyer could be heard by that court, despite the lawyer’s non-compliance with the strict EU conditions for trans-EU representation. Duncan Grehan explains.

On 23 April 2021, in Klohn v An Bord Pleanála ([2021] IESC 30), the Supreme Court held that a visiting German lawyer could represent, appear, advocate and be heard by that court on behalf of the German national appellant, despite the lawyer’s non-compliance with the strict legal conditions to her EU, international, and domestic-law right to provide legal services before the courts of an EU member state.

The decision is in line with fundamental rights of access to justice, to the courts, and to an equivalent and effective remedy and fair hearing, which Ireland’s laws and its courts must provide.

The exceptional decision was reached despite the advices requested and submitted to the court by the notice parties – the Law Society, the Bar and the Attorney General – that the application omitted basic required proofs.

The law requires a visiting EU-state qualified lawyer, who is not established in Ireland and who wishes to provide this type of service, to aver and exhibit facts and qualification documents by affidavit filed with the Supreme Court registrar to prove eligibility to qualify, and also to work in conjunction with a local solicitor and/or barrister accountable to the authorised authority (the Law Society of Ireland, the Benchers of the King’s Inns, or the superior courts).

The lawyer in this case did not do this but, for exceptional reasons and with regard to the ruling of the Court of Justice of the EU (CJEU) that an exception arose that the Supreme Court must assess, she has been permitted to provide the required services and to appear and advocate for her client.

Conditional fundamental rights

The lawyer’s rights to freedom of movement and to represent a client before the courts of a host country other than her home country where she is qualified are basic.

The fundamental right to freedom of movement is a core right that is part of public international law (European Convention on Human Rights, protocol 4, article 2; EU Charter of Fundamental Rights, article 45; Universal Declaration of Human Rights, article 13).

The convention provides a right to a fair trial without unfair delay (article 6) and a right to an effective remedy (article 13). This is subject to the principle of a margin of appreciation by which the national authority (such as a regulator or court) may engage its system of regulation, which must respect these rights proportionate to the public interest.

The charter provides equivalent rights (article 47) to all EU nationals, subject to the principle of a margin of discretion to the local member state authority in selecting the regulatory regime of implementation, application, and interpretation always having regard to the public interest.

Article 46 of the convention makes the decisions of the European Court of Human Rights (ECtHR) binding on the contracting states. Article 260 of the Treaty on the Functioning of the EU sets out a similar rule.

By the ECHR Act 2003, section 2, the Irish courts must interpret and apply the law in a way compatible with the State’s duties under the convention. Section 3(1) provides that “every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the convention’s provisions” (a breach gives an individual a right to claim damages within one year). Section 4(a) requires the Irish courts to take judicial notice of the judgments of the ECtHR. The CJEU has identified a similar principle as EU law.

This interpretative obligation is qualified by the contra legem rule, as explained in Case C-105/03, Pupino (at paragraph 47): “The principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem. That principle does, however, require that, where necessary, the national court considers the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged [by the relevant EU law]”.

Thus, when national law conflicts with EU law, the latter prevails. This principle is incorporated into article 29.4.6 of the Constitution. (Worryingly for the architecture of the EU, this principle of EU law in recent times appears not to have been accepted by the superior courts of Poland, Germany and Belgium.)

So, while the national authority selects how the transposition into local law of its international law duties is to be done, it must not conflict with those duties. (This is also generally in line with how EU directives are distinguishable from EU regulations – the former being implemented as the local member state authority selects; and the latter having direct effect, irrespective of any existing local implementing regulations.)

Movement of lawyers

EU law distinguishes and regulates EU lawyers’ movement rights across the EU by reference to establishment rights or to the temporary provision of legal services. The entitlement of a visiting lawyer to appear before the courts here is governed by:

Ancillary to this regulatory structure is Directive 2005/36/EC (the Mutual Recognition of Qualifications Directive), enabling EU lawyers the freedom to move and practise in the EU 27 states under their home and host countries’ titles, subject to conditions being met.

It works to aid the Establishment and Lawyers Services Directives and to get recognition of the qualifications for immediate establishment under the professional lawyer title of the host member state.

As article 6 of the Establishment Directive makes clear, the lawyer “shall be subject to the same rules of professional conduct as lawyers practising under the relevant professional title of the host member state in respect of all activities he pursues in its territory”.

‘Visiting lawyer’, as opposed to an established lawyer, is defined by 2(1) of the 1979 Services Regulations and requires mandatory details, among other things, for verification of qualification by affidavit and that (s)he works in conjunction with a qualified Irish lawyer, which affidavit is then to be lodged with the Supreme Court registrar.

Right to represent

The Supreme Court ruling in Klohn was aided by the CJEU replies to questions it had referred to clarify (judgment dated 10 March 2021 in Case C-739/10VK v An Bord Pleanála), in which the CJEU concluded, in principle, that the Irish regulation is not in breach of European law.

Having reviewed detailed written submissions from the three notice parties, the Supreme Court followed the contra legem principle and made an exception to the general Irish law and also to the transposed EU law on who may represent, advocate, appear and be heard by the Supreme Court.

It is for the national courts to assess if the conditions to any remedy undermine the core of the convention and charter, the right of access to justice, and that in doing so there is proportionality in its decision.

The domestic court must have regard to the outlook of the case succeeding, the importance of what is at stake, the complexities of applicable law and of procedure, the applicant’s capacity to represent himself effectively, and the cost risks (see CJEU ruling in Case C-279/09, DEB GmbH).

The regulatory system on entitlement to representation in court across the EU states can differ. Under German (Case 427/85 [1988]) and French law (Case C-294/89 [1991]), a litigant may choose to be represented in certain circumstances by a person who is not a qualified lawyer.

In Ireland, the “fundamental rule is that only persons who enjoy a right of audience before our courts are the parties themselves, when not legally represented, a solicitor duly and properly instructed, and counsel duly and properly instructed by a solicitor to appear for a party” (Fennelly J, In re Coffey [2013] IESC 11; see also Coffey v EPA [2013 IESC 31], [2014] 2 IR 125, as cited in the Attorney General’s submissions, paragraph 47).

Fennelly J explains: “The limitation of the right of audience to professionally qualified persons is designed to serve the interests of the administration of justice and thus the public interest.” Further: “The courts have, on rare occasions, permitted exceptions to the strict application of that rule, where it would work particular injustice.”

In Ireland, legal representation before the courts is not mandatory, save for companies (but even the 1969 Battle principle affecting companies was reaffirmed in 2018 by the Supreme Court in AIB v Aqua Fresh Fish ([2018] IESC 49) “except in exceptional circumstances” undefined).

Lay litigants here must represent themselves and cannot be represented, unlike in Germany or France, by a non-lawyer. They can get assistance from a person not entitled to represent them (a ‘McKenzie Friend’), but that person has no right to act as an advocate nor conduct the litigation in any way (see High Court Practice Direction 72).

In relation to a visiting EU lawyer applicant for a right of audience and representation here, it is necessary to ensure compliance with Supreme Court Practice Direction 11 (22 May 2006, on the European Communities (Freedom to Provide Services) (Lawyers) Regulations 1979-2004), which lists the procedure by affidavit sworn in Ireland by which a visiting lawyer which should establish her qualifications, as per regulation 7 of the 1979 regulations.

The Klohndecision

The applicant German lawyer, Rain Barbara Öhlig, had not complied with the strict legal requirements to meet eligibility: she failed to adequately detail and vouch in her affidavit her professional qualification and its provenance, nor did she identify any local Irish lawyer accountable to the Irish courts and in conjunction with whom she would work (the latter condition is set by article 5 of the Services Directive and transposed into Irish law by regulation 6 of the 1979 Services Regulations).

She had, for a lengthy period, been a registered established lawyer in Ireland but, before the application, she had been deregistered. She had been involved in a number of Irish court hearings concerning matters of environmental and related laws.

She is qualified in Germany, although she offered little evidence of her establishment there. She had already represented Mr Klohn in this case at various stages of its processing through the tiers of the Irish courts, and also twice before the CJEU in relation to EU law questions in this matter, referred to it by the Irish courts.

In its decision, the Supreme Court cited the 10 March 2021 judgment of the CJEU:

  • “That, however, the application of the requirement to appear in court accompanied by an Irish qualified lawyer, in all cases and without exception, would be in breach of European Union law, such that the requirement in question must be disapplied in cases where it goes beyond what is necessary in order to attain the objective of the proper administration of justice, specifically in cases where the visiting lawyer, by virtue of his or her professional experience, is capable of representing the litigant in the same way as a lawyer who practises habitually before the Irish courts,
  • That it is a matter for the national court concerned ... to make an assessment as to whether the circumstances of the case in question are such that the national measure must be disapplied on that basis.”

The notice parties had taken a neutral view in their submissions and left it to the Supreme Court to assess the justification in making an exception to the law’s requirements.

The Supreme Court took on board the requested written submissions filed by Öhlig in support of her being an exception to the law and, in those circumstances, having regard to its duty to ensure that EU law and its interpretation principles prevail (the comparative ECHR laws and principles were not raised), and having been placed on notice at an earlier stage of the proceedings of the Irish laws by the written submissions of the three notice parties, the Supreme Court decided: “In those circumstances, it is the court’s assessment that it is appropriate that Ms Öhlig be permitted to represent Mr Klohn without the need to be accompanied by an Irish qualified lawyer.”

Legem before wicket

Specialist visiting lawyers with experience of specialist Irish procedural laws may exceptionally be permitted to advocate for their client before the superior courts of Ireland without working in conjunction with an established Irish qualified lawyer.

On 3 August 2021, in a fourth Supreme Court judgment in these lengthy proceedings of the plaintiff German national/Ireland resident Volkmar Klohn, which he commenced well over a decade ago, Clarke CJ awarded him his full costs of the appeal, including those associated with the hearing concerning his legal representation, and also the two references to the CJEU.

The taxing master had earlier adjudicated costs against him of €86,000 in the underlying environmental proceedings, which he had lost. But, in its first reference, the CJEU then held that those costs must be assessed on a ‘not prohibitively expensive’ (NPE) basis.

Clarke CJ, therefore, overturned the taxed assessment sum, but not the order, and lowered dramatically the ordered costs to €1,250. He took into account the plaintiff’s financial position and worth, in line with the caveat pointed out by the CJEU (paragraph 71 of its first judgment) on the Supreme Court’s duty to interpret national law in conformity with EU law “insofar as the force of res judicata attaching to the decision as to how costs are to be borne, which has become final, does not preclude this, which it is for the national court to determine”.

This is yet another case where the EU contra legem principle to be followed by national courts is not absolute. It is subject to the national court’s margin of appreciation and determination in cases that have become res judicata, “even where it is clear that European Union law was misapplied or wrongly interpreted in the case in question” (Clarke CJ, paragraph 3.2).

Read and print a PDF of this article here.

Duncan Grehan
Duncan Grehan is a solicitor and member of the Law Society’s EU and International Affairs Committee