CELEX: 62002CC0289
Language: en
Date: 2003-09-18 00:00:00
Title: Opinion of Mr Advocate General Mischo delivered on 18 September 2003. # AMOK Verlags GmbH v A & R Gastronomie GmbH. # Reference for a preliminary ruling: 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. # Case C-289/02.

OPINION OF ADVOCATE GENERALMISCHO delivered on 18 September 2003  (1)
         Case C-289/02 AMOK Verlags GmbHvA & R Gastronomie GmbH(Reference for a preliminary ruling from the Oberlandesgericht München (Germany))
            ((Freedom to provide services – Lawyer established in one Member State acting 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))
            
      
         
        I ─ Introduction
      
      1.  In these proceedings for a preliminary ruling, the Oberlandesgericht München (Higher Regional Court, Munich) (Germany) enquires
      of the Court, by an extremely succinct order for reference, whether, in a dispute before a German court in which the unsuccessful
      party has to reimburse legal costs to the party which was successful, and in which the successful party was represented by
      a foreign lawyer who acted in conjunction with a lawyer practising before the court hearing the matter, Articles 12 EC and
      49 EC preclude a court from limiting the recoverable costs of the foreign lawyer, in accordance with the practice of the German
      courts, to the rates under the German scale of costs and from disallowing, in accordance with the same practice, recovery
      of the additional costs of the local lawyer.
       II ─ Legal context
      
      
      
      A ─
       Community law  
      
      2.  Article 4(1) of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to
      provide services  
      
         			(2)
         		 (hereinafter  
      the Directive) provides: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.
      
      3.  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.
      
      
      
      
      B ─
       German law  
      
      4.  In Germany, under Paragraph 91(1) of the Zivilprozessordnung (German Code of Civil Procedure, hereinafter  
      the ZPO), the successful party in proceedings is entitled to recover its legal costs from the unsuccessful party, to the extent that
      they were necessary properly to bring or defend an action.
      
      5.  As regards the amount of the costs, they derive from a scale contained in the Bundesrechtsanwaltsgebührenordnung (federal
      regulation on lawyers' fees, hereinafter  
      the BRAGO). Paragraph 24a(1) thereof reads as follows: 
      (1) If the lawyer acts as a local lawyer, under 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) to which he would be entitled had he himself been instructed by the client. That
      remuneration shall be charged to the corresponding fee received by the lawyer instructed by the client....
      
      
      6.  The BRAGO is silent on the remuneration of the foreign lawyer.
      
      7.  The Gesetz über die Tätigkeit europäischer Rechtsanwälte in Deutschland (Law on the activities of European lawyers in Germany,
      hereinafter  
      the EuRAG), to which the aforementioned provision refers, was adopted in order to transpose various directives concerning the rules
      governing the legal profession. Paragraph 28 thereof establishes:  
      (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 bring or defend proceedings himself, a European
      lawyer who provides services may act as representative or defending counsel for a client only in agreement with a lawyer (domestic
      lawyer). 
      
      (2) The domestic lawyer must be authorised to act as representative or defending counsel 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. ...
      
      
      8.  Paragraph 28(4) of the EuRAG refers in turn to Paragraph 52 of the BRAGO, which establishes in its first subparagraph that
      a lawyer who merely liaises between the client and the legal representative or one who files expert witness statements in
      case-files transferred to a lawyer acting in a higher court shall receive remuneration for that work equivalent to the fees
      for lodging the application (Prozessgebühr) payable to the legal representative.
       III ─ Facts and procedure in the main proceedings  
      
      9.  The main proceedings, before the Oberlandesgericht München hearing the matter on appeal, concern the taxation of costs pursuant
      to proceedings arising from a contractual dispute brought before the Landgericht (Regional Court) Traunstein (Germany), between
      an Austrian undertaking, A & R Gastronomie GmbH (hereinafter  
      A & R), established in Salzburg, and hence near the German border, and a German undertaking, AMOK Verlags GmbH (hereinafter  
      AMOK), the unsuccessful party. A & R was represented by its Austrian lawyer, acting in conjunction with a local lawyer, described
      by the referring court as a  
      correspondence lawyer.
      
      10.  A & R seeks recovery of its legal costs from AMOK, the unsuccessful party. Specifically it is claiming, on the one hand, reimbursement
      of the costs of the Austrian lawyer calculated according to the rates in the Rechtsanwaltstarifgesetz (Austrian law on lawyers'
      fees, hereinafter  
      the RATG) and, on the other, reimbursement of the fees of the German local lawyer who acted in conjunction with him.
      
      11.  The opposing party disputes the claim, arguing that the costs of a foreign lawyer must be limited to the costs calculated
      according to the German scale set in the BRAGO which is, here, a considerably lower scale. Nor does AMOK see any reason why
      it should reimburse the costs of two lawyers.
      
      12.  The Oberlandesgericht München, hearing the application for the taxation of costs at second instance, informs us that, according
      to its settled case-law, a foreign party who instructs a foreign lawyer can only claim legal costs from the opposing party
      up to the amount it would have incurred in instructing a German lawyer, and under no circumstances the costs of the local
      lawyer who acted in conjunction with the foreign lawyer.
      
      13.  Uncertain, however, as to whether that case-law practice is consistent with Community law, the Oberlandesgericht München stayed
      proceedings and referred the following question to the Court for a preliminary ruling: Are Articles 49 EC and 12 EC to be interpreted as precluding a decision of a national court in accordance with which, in a
      Member State (domestic territory), the maximum amount of a claim for reimbursement of the costs of the services of a lawyer
      of a different Member State in domestic proceedings and of an Einvernehmensanwalt (domestic lawyer acting in conjunction with
      the foreign lawyer) is the sum of the costs including VAT which would have been incurred in the case of representation by
      a domestic lawyer?
       IV ─ Law  
      
      14.  At the hearing the Commission told the Court that it no longer held the reservations it had expressed in its written observations
      regarding the admissibility of the order for reference.
      
      15.  For my part, I take the view, likewise, that even if the order for reference is very brief, it does nevertheless contain the
      necessary information to enable the Court to give an interpretation of Community law which will be helpful to the referring
      court.  
      
         			(3)
         		 I also take the view that there is no reason to doubt that the Oberlandesgericht München is acting, in the main proceedings,
      as a court or tribunal within the meaning of Article 234 EC.
      
      
      A ─
         The first limb of the question (applicability of the Austrian fee scale)  
      
      
      
      1.  Arguments submitted to the Court 
      
      16.  A & R, the defendant in the main proceedings, asserts that limiting to the BRAGO rates the maximum costs recoverable in respect
      of a foreign lawyer contravenes Article 49 EC.
      
      17.  Thus,  
      whereas, where its case is successful, a (German) domestic party to proceedings can in principle claim reimbursement in full
      of its lawyers' fees, a foreign litigant, and a party to the proceedings, which has to pay higher fees under foreign rules
      governing the fees of lawyers established in that other place, is liable for an at times not insignificant part of the fees
      payable. The litigant is accordingly restricted in its freedom to choose a lawyer and is indirectly obliged to engage a lawyer
      established in the place where the proceedings are held. At the same time, the foregoing restricts the freedom to provide
      services of the foreign lawyer.
      
      18.  According to A & R, the Austrian fee scale should furthermore be used according to private international law, since the Community
      connection for the lawyer's claim for costs is the place where he is established.
      
      19.  The facts of the case likewise, in the view of A & R, justified use of the Austrian fee scale. As a party established abroad,
      it was entitled to instruct a reputable lawyer established close to the place where it has its address.
      
      20.  The Austrian Government, for its part, draws a distinction between the lawyer-client relationship, which is a matter of contract
      law, and the issue of the recovery of legal costs, which can give rise to an action in public law, since it is a matter of
      procedural law and subject to the  
       lex fori . The  
       lex fori  applies, moreover, as a result of the principle of equality of arms, according to which each party should bear the same risk
      as regards the reimbursement of costs.
      
      21.  Consequently, the Austrian Government submits, there is no restriction on the freedom to provide services within the meaning
      of Article 49 EC nor any discrimination within the meaning of Article 12 EC, since an Austrian lawyer can pursue his activity
      in Germany on the same terms, as regards the recovery of costs, as the Federal Republic of Germany prescribes for its own
      nationals.
      
      22.  The German Government, in turn, points out that, under the law applicable in Germany, liability for a lawyer's fees falls
      under the law of the place where he is established, whereas the successful party's action against the unsuccessful party for
      reimbursement of its costs is a matter of the German law of civil procedure.
      
      23.  The German Government also draws attention to the fact that the limitation on the reimbursement of lawyers' costs emerges
      from the notion of necessity in Article 91(1) of the ZPO and adds that there may be cases where it is necessary to have recourse
      to a foreign lawyer as a result of the particular nature of the case, for example because foreign law applies. The amount
      of the recoverable costs may then exceptionally take into account a foreign fee scale. The restriction being questioned by
      the referring court, however, clearly does not relate to a situation in which recourse to the foreign lawyer was necessary
      due to the particular nature of the case.
      
      24.  The German Government asserts, thereafter, that the nationality of the parties is completely irrelevant, as is the lawyer's
      nationality or place of establishment. Even if a lawyer registered in Germany, under a fee agreement, claims remuneration
      above the BRAGO rates, it will not be recoverable at the level under that agreement.
      
      25.  According to the German Government, the rules under the BRAGO, which lays down non-discriminatory arrangements for the exercise
      of the profession which apply to the costs of every lawyer practising in Germany, are analogous to selling arrangements which
      fall outside the general prohibition on restrictions. It refers in this regard to the judgments in  
       Alpine Investments 
         			(4)
         		 and  
       Gourmet International Products 
         			(5)
         		 in which the Court, it claims, broadened the scope of the case-law on selling arrangements in the  
       Keck and Mithouard 
         			(6)
         		 ruling to cover restrictions on the freedom to provide services. The German Government draws the conclusion from the foregoing
      that the limitation on the reimbursement of legal costs is not a prohibited restriction.
      
      26.  Even if, the German Government continues, the limitation on the reimbursement of legal costs laid down by the BRAGO did include
      a restriction on the freedom to provide services, that restriction would be justified on the basis of the conditions identified
      by the Court in  
       Gebhard .  
      
         			(7)
         		 According to that government, it meets requirements for the proper administration of justice, which in  
       Reisebüro Broede  the Court has acknowledged to be an imperative requirement in the general interest.  
      
         			(8)
         		
      27.  The German legislature has chosen the BRAGO to be the guiding framework for establishing an adequate balance between the interests
      involved. By limiting the reimbursement of costs to set rates, it protects the unsuccessful party from exaggerated claims
      for costs. Where, in the event of losing a case, a party has to reimburse costs, the relevant liability must, in the interests
      of legal certainty, be predictable and cannot depend on the arbitrary decision of the opposing party. The unsuccessful party
      in fact has no influence over the choice of lawyer nor on the level of fees set between the opposing party and its legal representative.
      
      28.  The German Government further points out that Article 49 EC, which is a special provision on the freedom to provide services,
      has precedence over Article 12 EC.
      
      29.  The Commission, for its part, draws attention to the fact that Article 4(1) of the Directive expressly states that (cross-border)
      activities relating to the representation of a client are pursued in each host Member State under the conditions laid down
      for lawyers established in that State. Lawyers established in a different Member State who engage in the cross-border provision
      of services in Germany are therefore subject in that State to the same rules on costs as are applicable to German lawyers.
      
      30.  Those rules apply irrespective of what has been agreed between the lawyer and his client. If the agreed fees exceed any costs
      which the opposing party may have to reimburse under the law of the host Member State, the client remains liable to its lawyer
      for that debt. 
      
      2.  Analysis
      
      31.  The Oberlandesgericht München asks the Court whether Article 12 EC or Article 49 EC precludes the costs arrangements it has
      customarily applied.
      
      32.  The first paragraph of Article 12 EC provides that  
       within the scope of application of this Treaty, and  
       without prejudice to any special provisions contained therein ,  
      
         			(9)
         		 any discrimination on grounds of nationality shall be prohibited.
      
      33.  Before finding that the provision in question applies in a particular case, it is therefore necessary to ascertain that there
      is no special provision which defines the operation of that principle in the field concerned.
      
      34.  The foregoing has been confirmed by settled case-law from which it emerges that Article 6 of the EC Treaty (now, after amendment,
      Article 12 EC),  
      which lays down the general principle of the prohibition of discrimination on grounds of nationality, applies independently
      only to situations governed by Community law in respect of which the Treaty lays down no specific prohibition of discrimination. 
      
         			(10)
         		
      35.  So, in the present case, the Court is called upon to rule on an issue of the freedom to provide services, an area in which
      the principle of non-discrimination has been applied and enacted by Article 49 EC. It is therefore that article and the following
      provisions in Chapter 3 on services which it is necessary to interpret.
      
      36.  According to the first paragraph of Article 49 EC,  
        [w]ithin the framework of the provisions below ,  
      
         			(11)
         		 restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States
      who are established in a State of the Community other than that of the person for whom the services are intended.
      
      37.  The last paragraph of Article 50 EC specifies that  
      [w]ithout prejudice to the provisions of the chapter relating to the right of establishment, the 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.
      
      38.  According to the first paragraph of Article 52 EC,  
      [i]n order to achieve the liberalisation of a specific service, the Council shall, on a proposal from the Commission and after
      consulting the Economic and Social Committee and the European Parliament, issue directives acting by a qualified majority.
      
      39.  Such a directive has been issued in relation to the services provided by lawyers. I refer to the Directive  
      to facilitate the effective exercise by lawyers of freedom to provide services, and hence to eliminate all restrictions incompatible with the Treaty.
      
      40.  It follows from Article 4(1) of that Directive that  
       [a]ctivities 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 ,  
      
         			(12)
         		 with the exception of any conditions requiring residence, or registration with a professional organisation, in that State.
      
      41.  Article 4(2) adds that  
      [a] lawyer pursuing these activities shall observe the rules of professional conduct of the host Member State ....
      
      42.  Although the Community legislature has therefore excluded two conditions which would have the effect of rendering the provision
      of services analogous to establishment, it plainly took the view that all other conditions and rules in force in the host
      State can apply.
      
      43.  The fact that many of those conditions and rules may be different from those in the State where the provider of the services
      is established, and that they might therefore be perceived as burdensome, or that they may be such as to make the provision
      of cross-border services less attractive to the foreign lawyer, does not have to be taken into consideration since there is
      a harmonising directive which has confirmed their legitimacy.
      
      44.  One of those conditions or rules which make the pursuit of cross-border activity less attractive but which must none the less
      be allowed is that relating to the ceiling on fees imposed by the BRAGO.
      
      45.  It has not in fact been disputed in the course of the proceedings before the Court that the expression  
      conditions laid down for lawyers established in that State also covers the terms of lawyers' remuneration.
      
      46.  Admittedly, the main proceedings do not directly concern the Austrian lawyer himself. His entitlement to act in proceedings
      in Germany and to charge his client fees higher than those under the BRAGO has not been called into question.
      
      47.  The issue which the Oberlandesgericht München has raised does nevertheless fall within the scope of application of Article
      4(1) of the Directive, because the conditions on which a client can recover his lawyer's fees from the opposing party are
      closely linked to the conditions on which that lawyer can pursue his activity.
      
      48.  Furthermore, the very fact that the successful party can, in Germany, recover the fees in question is the result of the  
      conditions laid down for lawyers established in that State. In a number of other Member States there is indeed no such right.
      
      49.  By reason of all the foregoing I take the view that it can be inferred from Article 4(1) of the Directive that the German
      courts are entitled to set the amount of the fees recoverable by a lawyer established in a different Member State on the basis
      of the relevant national rules.
      
      50.  It is therefore unnecessary to examine the first limb of the question referred for a preliminary ruling in the light of Article
      49 EC.
      
      51.  Since A & R, the German Government and the Commission have nevertheless analysed that limb, I shall comment as follows, by
      way of observations in the alternative.
      
      52.  The fact that a party to proceedings taking place in Germany which wins its case having called upon the services of a lawyer
      established in a different Member State cannot recover in full the (higher) fees charged by that lawyer amounts to a restriction
      within the meaning of Article 49 EC. That litigant is, effectively, discouraged from having recourse to such a lawyer. There
      is, as a result, an indirect obstacle to the provision of cross-border services by lawyers established in different Member
      States.
      
      53.  It is apparent nevertheless that the case-law practice in question does satisfy the four requirements defined by the case-law
      of the Court.  
      
         			(13)
         		
      54.  The practice is adopted without distinction in all proceedings taking place before a German court.
      
      55.  It is also justified by imperative requirements in the general interest, namely to uphold the principles of legal certainty
      and the proper administration of justice. 
      
         			(14)
         		
      56.  Where, under domestic legislation, the unsuccessful party in proceedings has to reimburse the legal costs of the successful
      party, the relevant liability must not, so far as possible, be unpredictable nor excessive.
      
      57.  A party to proceedings in fact has no influence over the opponent's choice of its lawyer nor on the level of fees set between
      that party and its legal representative, whether the latter is established in the country in issue or in a different Member
      State.
      
      58.  The risk that it might find itself, should it lose its case, facing actions for the recovery of unforeseeable costs could,
      therefore, prompt an economically weak party to decline to assert its legal rights even if, on a first analysis, it has a
      good case.
      
      59.  Lastly, a rule such as that in issue is also suitable for securing the attainment of the objective which it pursues and does
      not go beyond what is necessary in order to attain it.
      
      60.  I therefore propose that the Court should reply, as regards the first limb of the question referred, that Article 49 EC and
      the Directive should not be interpreted as precluding a national rule of case-law which limits the maximum amount recoverable
      by the successful party of the costs of the services provided by a lawyer established in a different Member State to the legal
      costs, including VAT, which would have been incurred in the case of representation by a lawyer established in the State where
      the proceedings took place.
      
      
      B ─
         The second limb of the question (recovery of the fees of the local correspondence lawyer)
      
      
      
      1.  Arguments submitted to the Court
      
      61.  A & R asserts, in essence, that the fact that a foreign successful party which uses the services of a foreign lawyer established
      in the place where it is resident cannot recover the fees of the local lawyer further exacerbates the infringement of Article
      49 EC.
      
      62.  A foreign party in fact, it claims, has an even greater incentive, for financial reasons, to use only the services of a lawyer
      established in the place where the proceedings are heard. Its right freely to choose a lawyer is therefore restricted.
      
      63.  According to the German Government, the fact that the involvement of the local lawyer gives rise to additional costs is an
      inherent consequence of Article 5 of the Directive.
      
      64.  That rule does not in its view require that the person for whom the service is intended should be able to enjoy the assistance
      of both the local lawyer and the foreign lawyer  
      at no cost, and with all the more reason because there are also types of procedure, it submits, in which there is no provision for any
      reimbursement by the unsuccessful party.
      
      65.  Since the client is always itself liable in the first place to pay its lawyers, there can be no discrimination against the
      foreign lawyer as a result of the fact that the client's opponent is not bound, in certain cases, to reimburse to the client
      the costs of the local lawyer.
      
      66.  The Commission, conversely, takes the view that,  
      where a foreign lawyer acts in conjunction with a local lawyer within the meaning of Directive 77/249/EEC, both lawyers will
      receive costs in accordance with domestic law. That conclusion flows indirectly from the Directive, with the effect that it
      is scarcely necessary to refer to the Treaty provisions. It is therefore expedient only for the sake of completeness to add
      that there would plainly be an obstacle to the freedom to provide services within the meaning of Article 49 EC if the foreign
      lawyer were obliged to have recourse to a (local) domestic lawyer but was not able to recover the corresponding costs. There
      could be no justification for such a ─ financial ─ barrier, which would amount to a clear infringement of Article 49 EC.
      
      2.  Analysis
      
      67.  It is common ground that no provision of Community law requires Member States to prescribe that the unsuccessful party in
      proceedings must reimburse to the successful party the costs incurred by the latter.
      
      68.  Nor does Community law require Member States to provide that, where one party to an action has recourse to a lawyer established
      in a different Member State, that lawyer must act in conjunction with a local lawyer. Article 5 of the Directive merely establishes
      a power to do so.
      
      69.  Is it possible, none the less, to infer from Community law that, where a Member State has availed itself of both those rights,
      the losing party in proceedings must reimburse to the winner the fees of its local lawyer?
      
      70.  Without doubt, a reply in the negative to that question would mean that, in such a Member State, the parties to a dispute
      would be discouraged from having recourse to lawyers established in other Member States and there would in consequence be
      an impediment to the freedom of those lawyers to provide services.
      
      71.  In that respect one can point out first of all that, where the legislation in a Member State provides for reimbursement of
      costs which are  
      necessary properly to bring or defend an action and where the same legislation requires the engagement of a local lawyer, whose involvement
      is, as a result, deemed to be  
      necessary, the fees of that lawyer must be recoverable because their reimbursement is one of the  
      conditions laid down for lawyers established in that State within the meaning of Article 4 of the Directive.
      
      72.  Even were it appropriate to examine the issue in the light of Article 49 EC rather than from the point of view of the Directive,
      the outcome would be the same.
      
      73.  It should be noted here that, where a Member State requires a local lawyer to act, it is because it considers such involvement
      to be necessary for the proper administration of justice.
      
      74.  That being the case, it is impossible to see how the same principle of the proper administration of justice could also dictate
      that the successful party cannot recover the costs of that involvement.
      
      75.  The only contrary argument which might be put forward is that the unsuccessful party should be protected from exaggerated
      claims for reimbursement. 
      
         			(15)
         		
      76.  I did, admittedly, allow, with regard to the first limb of the question referred for a preliminary ruling, although only in
      the alternative, that the argument referred to could justify limitation of the recoverable fees of the foreign lawyer to the
      level set by the BRAGO.
      
      77.  The position is different, however, as regards the costs of the local lawyer. Paragraph 28 of the EuRAG, effectively, requires
      him to act, and Paragraph 24a(2) of the BRAGO defines his remuneration.
      
      78.  There is therefore no legal uncertainty in that respect.
      
      79.  Any party to an action is aware that it runs the risk of the opposing party calling upon the services of a foreign lawyer,
      who must be assisted by a local lawyer, and that it may be liable to pay the fees of both those lawyers. It therefore has
      to take that risk into consideration when deciding to bring proceedings or when it declines to seek an amicable solution despite
      being open to a legal action by the other party to the dispute.
      
      80.  As regards the second element of the question referred for a preliminary ruling, I propose that the Court should, accordingly,
      find that Article 49 EC and the Directive require that the costs recoverable by a successful party in proceedings who has
      used the services of a lawyer established in another Member State should take into account the costs arising from the involvement
      of the local lawyer.
        V ─ Conclusion
      
      81.  Having regard to the foregoing considerations, I propose that the Court should reply as follows to the question referred by
      the Oberlandesgericht München:
      (1) Article 49 EC and Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom
      to provide services should not be interpreted as precluding a national rule of case-law which limits the maximum amount recoverable
      by the successful party of the costs of the services provided by a lawyer established in a different Member State to the legal
      costs, including VAT, which would have been incurred in the case of representation by a lawyer established in the State where
      the proceedings took place. 
      
      (2) Conversely, Article 49 EC and Directive 77/249 do, in this case, require that the successful party should be able to recover
      the costs of a local lawyer where, under the legislation of the same Member State, the lawyer established in a different Member
      State was obliged to act in conjunction with such a lawyer. 
      
      
      
       1 –
         
           Original language: French.
      
      2 –
         
         OJ 1977 L 78, p. 17.
      
      3 –
         
         See, in particular, the order in Case C-190/02  
             Viacom  [2002] ECR I-8287, paragraphs 13 to 16.
         
      
      4 –
         
         Case C-384/93 [1995] ECR I-1141, paragraphs 33 to 35.
      
      5 –
         
         Case C-405/98 [2001] ECR I-1795, paragraphs 18 to 21 and 39.
      
      6 –
         
         Joined Cases C-267/91 and C-268/91 [1993] ECR I-6097, paragraphs 13 and 17.
      
      7 –
         
         Case C-55/94 [1995] ECR I-4165, paragraph 37.
      
      8 –
         
         Case C-3/95 [1996] ECR I-6511, paragraph 38 et seq.
      
      9 –
         
         Emphasis added.
      
      10 –
         
         Case C-100/01  
             Oteiza Olazabal  [2002] ECR I-10981, paragraph 25, and, with respect particularly to Article 49 EC, Case C-18/93  
             Corsica Ferries   [1994] ECR I-1783, paragraphs 19 and 20.
         
      
      11 –
         
         Emphasis added.
      
      12 –
         
         Emphasis added.
      
      13 –
         
         Case C-79/01  
             Payroll and Others  [2002] ECR I-8923, paragraph 28 and the judgments cited therein.
         
      
      14 –
         
         . Reisebüro Broede , op. cit.
         
      
      15 –
         
         See the arguments of the German Government in point 27 above.