Lawyers' Representation Rights Trans-EU

• Published date: 29 October 2021
• Subject Matter: Litigation, Mediation & Arbitration, Law Department Performance, Trials & Appeals & Compensation, Workflow and Workload Management , Performance
• Law Firm: Global Advertising Lawyers Alliance (GALA)
• Author: Mr Duncan Grehan (Duncan Grehan & Partners Solicitors)

Executive Summary:

On 23 April 2021, exceptionally, 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 (MS). This 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 by the Supreme Court of and submitted to it 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 Hon. Soc. of the Kings 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 which the Supreme Court must assess, she has been permitted to provide the required services and to appear and advocate for her client.

Klohn, Volkmar v An Bord Plean'la, and General Council of the Bar of Ireland, The Law Society of Ireland and the Attorney General (notice parties)

23/4/2021 No. 314/11 & 482/11 [2021] IESC 30

This article offers an overview of the freedom of a visiting lawyer to provide services in a host EU MS, its regulation, its interpretation by the CJEU and by Ireland's courts.

1. 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 his home country where he is qualified are basic.

The fundamental right to freedom of movement is a core right which is part of public international law (see ECHR Protocol 4, Art. 4: freedom of movement; CFREU Art 45: freedom of movement and of residence; UNDHRts Art 16(1): "Everyone has the right to freedom of movement and residence...").

The European Convention on Human Rights (ECHR) provides a right to a fair trial without unfair delay (Art. 6) and a right to an effective remedy (Art. 13). This is subject to the principle of a margin of appreciation by which the national authority (e. g. a regulator or court) may engage its system of regulation which must respect these rights proportionate to the public interest (Art. 1 of Protocol 1 of the ECHR). The Charter of Fundamental Rights of the European Union (CFREU) provides equivalent rights (Art. 47) to all EU nationals subject to the principle of a margin of discretion to the local MS authority in selecting the regulatory regime of implementation, application and interpretation always having regard to the public interest.

ECHR Art. 46 makes the decisions of the European Court of Human Rights (ECtHR) binding on the Contracting States. Art. 260 of the EU Treaty sets out a similar rule.

By the ECHR Act 2003, s. 2, the Irish courts must interpret and apply the law in a way compatible with the State's duties under...