Opinion of the Advocate General — ECLI:EU:C:2020:988
Date: 2020-12-03
Language of the case: English
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Ireland

summary, therefore, natural persons but not corporations 
can self-represent in all proceedings, but in all other cases a party who either has to
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(in the case of corporations) or wishes to (in the case of natural persons) be 
represented must instruct a lawyer in good standing.
5.7 The Court would also draw attention to the limited nature of the requirement 
to practice “in conjunction with”, which was, as indicated in its judgment (see paras.
6.5 and 6.6), accepted as being applicable.
5.8 Further, the Supreme Court considers it appropriate to at least draw attention 
to the fact that, in the vast majority of cases, litigation operates in Ireland on the basis 
of a presumption that the losing party will be required by the Court to pay the costs 
incurred by the successful party in either bringing or defending the proceedings.
While strictly speaking, an order for such costs, when made at the conclusion of 
proceedings, involves a requirement on the losing party to pay to the successful party 
the full amount of the monies reasonably expended by the winning party on the 
litigation in question (to be assessed by reference to prevailing market rates), in many 
cases such costs orders provide the only practical means by which a lawyer 
representing a successful party is likely to be paid. A self-representing party will only 
be entitled to recover actual expenses incurred in conducting the litigation. It follows 
that the recognition of a lawyer as being entitled to represent a party before the courts 
can carry with it significant financial consequences for all concerned.
5.9 Finally, it is considered appropriate to make reference to the fact that one of 
the ethical obligations which any lawyer representing a party before the Irish courts 
has placed upon him or her is a requirement to research all relevant areas of the law 
and to bring to the attention of the court any legal materials (whether legislative or to 
be found in the case law) which may have a bearing on the proper resolution of the 
proceedings. That obligation applies even where materials unfavourable to the
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relevant side of the case are involved. That obligation is seen as an element of the 
position which is typical in common law countries whereby a principal part of the 
research necessary to permit a court to reach a proper conclusion on issues of law is 
conducted by the parties rather than by the court itself. Obviously, this process is 
somewhat impaired in cases when parties self-represent, but, having regard to the 
constitutional principles already referred to, it is accepted that courts have to do their 
best to deal with legal issues in such cases without the assistance of a lawyer for one 
or other or both sides.
6. The Position of the Parties
6.1 The arguments of the parties are set out in a little more detail in the judgment 
of the Supreme Court to which reference has already been made. However, at its 
simplest, Ms. O. suggests that the clear implication of the judgment of the Court of 
Justice in Commission v. Germany is such that it is impermissible for any member 
state to apply the “in conjunction with” option in any case where the party whom the 
visiting lawyer seeks to represent would be entitled to self-represent. It would follow 
from that proposition that, in substance, a member state may not be entitled to apply 
the “in conjunction with” requirement at all if it does not require parties to be 
represented by lawyers in the national legal order.
6.2 The Attorney General and the Law Society of Ireland argue for what it is 
suggested is a more nuanced view of the judgment of the Court of Justice in 
Commission v. Germany. It is noteworthy that the Court made specific reference to 
the fact that there are at least some circumstances in which parties before the German 
courts can be represented by non-lawyers (although Ms. O. places reliance on the 
Opinion of Advocate General Cruz Vila<?a of 3 December 1987 in that case to make
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the suggestion that such circumstances are quite limited). In particular, those parties 
note that the conclusion reached by the Court of Justice in para. 14 of its judgment, to 
the effect that there was no consideration relating to the public interest which could 
justify the “in conjunction with” requirement, in court proceedings for which 
representation by a lawyer is not mandatory, arose in what was described as “in those 
circumstances”. It would appear that that phrase, which appears at the beginning of 
para. 14, involves a reference back to the previous paragraph, which referred to the 
fact that German law does allow representation in some cases by a person who is 
neither a lawyer nor a specialist.
6.3 Furthermore, attention is drawn to the fact that many aspects of the regime 
under which a visiting lawyer was required to practice “in conjunction with” a 
German-qualified lawyer were found by the Court, in substance, to be 
disproportionate. As already noted, no such requirements would arise in Irish law 
where the minimal obligation is to have available an Irish-qualified lawyer to assist on 
matters of national law, national practice and procedure or ethics, should the need 
arise. It would appear, therefore, that the scope or scale of the obligation which 
existed in German law at the time of the decision of the Court of Justice in 
Commission v. Germany was significantly more onerous than the obligation which 
would arise in Irish law should Ireland be entitled to impose the obligation to practice 
“in conjunction with” at all.
6.4 Finally, those parties argue that there is a significant difference between the 
logic applicable where a member state wishes to impose restrictions on visiting 
lawyers while allowing parties to be represented by persons who are not lawyers or 
specialists, on the one hand, and the proposition that, in practical terms, and save in
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the case of corporations, Ireland would, in effect, be precluded from imposing an “in 
conjunction with” obligation at all.
6.5 The General Council of the Bar of Ireland adopted a more neutral position. 
That party accepted that the wording of certain parts of the judgment of the Court of 
Justice in Commission v. Germany was open to the interpretation sought to be placed 
on it by Ms. O. but also suggested that the issue was not clear by reason of the 
alternative arguments advanced on behalf of the Attorney General and the Law 
Society of Ireland.
7. The Questions
7.1 On that basis, the Supreme Court has decided to refer the following questions 
to the Court of Justice:-
1. Is a member state precluded from exercising the option to be found in 
Article 5 of Directive 77/249/EEC of 22 March 1977, as amended, 
which permits a member state to impose a requirement on a lawyer who 
is engaged in the activity of representing a client in legal proceedings “to 
work in conjunction with a lawyer who practises before the judicial 
authority in question”, in all circumstances where the party whom the 
visiting lawyer wishes to represent in such proceedings would be entitled 
to self-represent?
2. If the answer to question 1 is no, by reference to what factors should a 
national court assess whether it is permissible to impose a requirement to 
“practice in conjunction with”?
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3. In particular, would the imposition of a limited obligation to practice “in 
conjunction with”, in the manner described earlier in this order for 
reference, amount to a proportionate interference in the freedom of 
lawyers to provide services so as to be justified, having regard to the 
public interest involved being both the need to protect consumers of 
legal services and the need to secure the proper administration of 
justice?
4. If the answer to question 3 is yes, does that position pertain in all 
circumstances and, if not, what factors should a national court take into 
account in determining whether such a requirement can be imposed in a 
particular case?
THE SUPREME COURT
[Record No: 2011/314]
Clarke C.J. 
O’Donnell J. 
Dunne J.
Between/
V. K.
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. O., 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. K., 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. K. was represented by Ms. O. 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. K.’s
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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. K. 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. K. 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. K. wishes to instruct Ms. O. to represent him in respect of those matters.
It is in that context that the entitlement of Ms. O. to represent Mr. K. 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-
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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 SCI 1 - 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. O. 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
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“[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:-
“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...”
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.”
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3.6 Regulation 7(l)(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
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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. O. 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. O.’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. O. 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. O. to satisfy the Court that she was entitled to rely on the
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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. O. 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. O. 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
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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. O. 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. O. 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.
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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
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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.”
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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,
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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. O. 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. O. 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
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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. O. 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 Vila?a 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
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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
15
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
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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. O. 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.
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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. O. is 
entitled to a right of audience to represent Mr. K. 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. K. 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. O. 
is clearly entitled to represent Mr. K. 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. O. 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
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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 Sri CILFIT and Lanificio 
di Gavardo SpA v. Ministry of Health, Case 283/81 [1982] E.C.R. 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. O. 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
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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. O. 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 pic 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
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with an Irish-qualified lawyer would not be permissible on the basis of the argument 
put forward by Ms. O. 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.
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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
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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. O. 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. K. 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. O. of her rights of 
audience in all the circumstances of this case.
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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.
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