CHUBB

Petitions to Transfer Business

July 2020

adversarial surgical

Dissecting liabilities

On those grounds, the Court (Grand Chamber) hereby rules:1.      Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding legislative measures which, for the purposes laid down in Article 15(1), provide, as a preventive measure, for the general and indiscriminate retention of traffic and location data. By contrast, Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights, does not preclude legislative measures that:–        allow, for the purposes of safeguarding national security, recourse to an instruction requiring providers of electronic communications services to retain, generally and indiscriminately, traffic and location data in situations where the Member State concerned is confronted with a serious threat to national security that is shown to be genuine and present or foreseeable, where the decision imposing such an instruction is subject to effective review, either by a court or by an independent administrative body whose decision is binding, the aim of that review being to verify that one of those situations exists and that the conditions and safeguards which must be laid down are observed, and where that instruction may be given only for a period that is limited in time to what is strictly necessary, but which may be extended if that threat persists;–        provide, for the purposes of safeguarding national security, combating serious crime and preventing serious threats to public security, for the targeted retention of traffic and location data which is limited, on the basis of objective and non-discriminatory factors, according to the categories of persons concerned or using a geographical criterion, for a period that is limited in time to what is strictly necessary, but which may be extended;–        provide, for the purposes of safeguarding national security, combating serious crime and preventing serious threats to public security, for the general and indiscriminate retention of IP addresses assigned to the source of an Internet connection for a period that is limited in time to what is strictly necessary;–        provide, for the purposes of safeguarding national security, combating crime and safeguarding public security, for the general and indiscriminate retention of data relating to the civil identity of users of electronic communications systems;–        allow, for the purposes of combating serious crime and, a fortiori, safeguarding national security, recourse to an instruction requiring providers of electronic communications services, by means of a decision of the competent authority that is subject to effective judicial review, to undertake, for a specified period of time, the expedited retention of traffic and location data in the possession of those service providers,provided that those measures ensure, by means of clear and precise rules, that the retention of data at issue is subject to compliance with the applicable substantive and procedural conditions and that the persons concerned have effective safeguards against the risks of abuse.2.      Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights, must be interpreted as not precluding national rules which requires providers of electronic communications services to have recourse, first, to the automated analysis and real-time collection, inter alia, of traffic and location data and, second, to the real-time collection of technical data concerning the location of the terminal equipment used, where:–        recourse to automated analysis is limited to situations in which a Member State is facing a serious threat to national security which is shown to be genuine and present or foreseeable, and where recourse to such analysis may be the subject of an effective review, either by a court or by an independent administrative body whose decision is binding, the aim of that review being to verify that a situation justifying that measure exists and that the conditions and safeguards that must be laid down are observed; and where–        recourse to the real-time collection of traffic and location data is limited to persons in respect of whom there is a valid reason to suspect that they are involved in one way or another in terrorist activities and is subject to a prior review carried out either by a court or by an independent administrative body whose decision is binding in order to ensure that such real-time collection is authorised only within the limits of what is strictly necessary. In cases of duly justified urgency, the review must take place within a short time.3.      Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), must be interpreted as not being applicable in the field of the protection of the confidentiality of communications and of natural persons as regards the processing of personal data in the context of information society services, such protection being governed by Directive 2002/58, as amended by Directive 2009/136, or by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC, as appropriate. Article 23(1) of Regulation 2016/679, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation which requires that providers of access to online public communication services and hosting service providers retain, generally and indiscriminately, inter alia, personal data relating to those services.4.      A national court may not apply a provision of national law empowering it to limit the temporal effects of a declaration of illegality, which it is bound to make under that law, in respect of national legislation imposing on providers of electronic communications services – with a view to, inter alia, safeguarding national security and combating crime – an obligation requiring the general and indiscriminate retention of traffic and location data that is incompatible with Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights. Article 15(1), interpreted in the light of the principle of effectiveness, requires national criminal courts to disregard information and evidence obtained by means of the general and indiscriminate retention of traffic and location data in breach of EU law, in the context of criminal proceedings against persons suspected of having committed criminal offences, where those persons are not in a position to comment effectively on that information and that evidence and they pertain to a field of which the judges have no knowledge and are likely to have a preponderant influence on the findings of fact.

 Regulation 2016/679

Directive 2002/58

 Directive 2002/21

 Directive 97/66

 Directive 95/46

Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002

C. Strömholm

M. Campos Sánchez-Bordona

J. Malenovský, L. Bay Larsen, T. von Danwitz (Rapporteur), C. Toader, K. Jürimäe, C. Lycourgos and N. Piçarra

J.‑C. Bonichot, A. Arabadjiev, A. Prechal, M. Safjan, P.G. Xuereb and L.S. Rossi

R. Silva de Lapuerta

Child Focus

Conseil des ministres

Ordre des barreaux francophones et germanophone,Académie Fiscale ASBL,UA,Liga voor Mensenrechten ASBL,Ligue des Droits de l’Homme ASBL,VZ,WY,XX

Center for Democracy and Technology

Privacy International

Ministre des Armées

Ministre de l’Intérieur

Garde des Sceaux, ministre de la Justice

Premier ministre

Igwan.net

Fédération des fournisseurs d’accès à Internet associatifs

French Data Network

La Quadrature du Net

Joined Cases C‑511/18, C‑512/18 and C‑520/18

Code de la sécurité intérieure (Internal Security Code)The CPCELoi n° 2004 575 du 21 juin 2004 pour la confiance dans l’économie numérique (Law No 2004575 of 21 June 2004 to promote trust in the digital economy)Decree No 2011 219

Directive 95/46Directive 97/66Directive 2000/31Directive 2002/21Directive 2002/58Regulation 2016/679

6 October 2020

On those grounds, the Court (Grand Chamber) hereby rules:1.      Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation that permits public authorities to have access to a set of traffic or location data, that are liable to provide information regarding the communications made by a user of a means of electronic communication or regarding the location of the terminal equipment which he or she uses and to allow precise conclusions to be drawn concerning his or her private life, for the purposes of the prevention, investigation, detection and prosecution of criminal offences, without such access being confined to procedures and proceedings to combat serious crime or prevent serious threats to public security, and that is so regardless of the length of the period in respect of which access to those data is sought and the quantity or nature of the data available in respect of such a period.2.      Article 15(1) of Directive 2002/58, as amended by Directive 2009/136, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights, must be interpreted as precluding national legislation that confers upon the public prosecutor’s office, whose task is to direct the criminal pre-trial procedure and to bring, where appropriate, the public prosecution in subsequent proceedings, the power to authorise access of a public authority to traffic and location data for the purposes of a criminal investigation.

  It follows from the foregoing considerations that the requirement of independence that has to be satisfied by the authority entrusted with carrying out the prior review referred to in paragraph 51 of the present judgment means that that authority must be a third party in relation to the authority which requests access to the data, in order that the former is able to carry out the review objectively and impartially and free from any external influence. In particular, in the criminal field, as the Advocate General has observed, in essence, in point 126 of his Opinion, the requirement of independence entails that the authority entrusted with the prior review, first, must not be involved in the conduct of the criminal investigation in question and, second, has a neutral stance vis-à-vis the parties to the criminal proceedings.

M. Safjan

the answer to the third question referred for a preliminary ruling is that Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, must be interpreted as precluding national legislation that confers upon the public prosecutor’s office, whose task is to direct the criminal pre-trial procedure and to bring, where appropriate, the public prosecution in subsequent proceedings, the power to authorise access of a public authority to traffic and location data for the purposes of a criminal investigation.

Opinion 1/15 (EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592

udgment of 9 March 2010, Commission v Germany, C‑518/07, EU:C:2010:125

judgments of 21 December 2016, Tele2, C‑203/15 and C‑698/15, EU:C:2016:970

judgments of 6 October 2020, Privacy International, C‑623/17, EU:C:2020:790

whether Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, must be interpreted as precluding national legislation that confers upon the public prosecutor’s office, whose task is to direct the criminal pre-trial procedure and to bring, where appropriate, the public prosecution in subsequent proceedings, the power to authorise access of a public authority to traffic and location data for the purposes of a criminal investigation.

whether the Member States may justify a limitation on the rights and obligations laid down, inter alia, in Articles 5, 6 and 9 of Directive 2002/58 must be assessed by measuring the seriousness of the interference entailed by such a limitation and by verifying that the importance of the public interest objective pursued by that limitation is proportionate to the seriousness of the interference

judgment of 2 October 2018, Ministerio Fiscal, C‑207/16, EU:C:2018:788

judgment of 6 October 2020, La Quadrature du Net and Others, C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791

whether Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, must be interpreted as precluding national legislation that permits public authorities to have access to a set of traffic or location data, that are liable to provide information regarding the communications made by a user of a means of electronic communication or regarding the location of the terminal equipment which he or she uses and to allow precise conclusions to be drawn concerning his or her private life, for the purposes of the prevention, investigation, detection and prosecution of criminal offences, without such access being confined to procedures and proceedings to combat serious crime, regardless of the length of the period in respect of which access to those data is sought and the quantity and the nature of the data available in respect of such a period.

16      By judgment of 6 April 2017, the Viru Maakohus (Court of First Instance, Viru, Estonia) imposed on H. K. a custodial sentence of two years for having committed, between 17 January 2015 and 1 February 2016, a number of thefts of goods (of a value ranging from EUR 3 to EUR 40) and cash (in amounts between EUR 5.20 and EUR 2 100), used another person’s bank card, causing that person a loss of EUR 3 941.82, and performed acts of violence against persons party to court proceedings concerning her.17      In order to find H. K. guilty of those acts, the Viru Maakohus (Court of First Instance, Viru) relied, inter alia, on several reports which were drawn up on the basis of data relating to electronic communications, as referred to in Paragraph 1111(2) of the Law on electronic communications, that the investigating authority had obtained in the pre-trial procedure from a provider of electronic telecommunications services, after having been granted several authorisations for that purpose by the Viru Ringkonnaprokuratuur (Viru District Public Prosecutor’s Office, Estonia) in accordance with Paragraph 901 of the Code of Criminal Procedure. Those authorisations, granted on 28 January and 2 February 2015, 2 November 2015 and 25 February 2016, related to data concerning several telephone numbers of H. K. and various IMEI codes of hers, in respect of the period from 1 January to 2 February 2015, of 21 September 2015, and of the period from 1 March 2015 to 19 February 2016.18      H. K. brought an appeal against the judgment of the Viru Maakohus (Court of First Instance, Viru) before the Tartu Ringkonnakohus (Court of Appeal, Tartu, Estonia), which dismissed the appeal by judgment of 17 November 2017.19      H. K. lodged an appeal on a point of law against the latter judgment before the Riigikohus (Supreme Court, Estonia), contesting, inter alia, the admissibility of the reports drawn up on the basis of the data obtained from the provider of electronic communications services. In her submission, it follows from the judgment of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, ‘Tele2’, EU:C:2016:970), that the provisions of Paragraph 1111 of the Law on electronic communications which lay down the obligation on service providers to retain communications data, as well as the use of such data for the purpose of her conviction, are contrary to Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter.20      According to the referring court, the question arises whether the reports drawn up on the basis of data referred to in Paragraph 1111(2) of the Law on electronic communications may be regarded as constituting admissible evidence. That court observes that the admissibility of the reports at issue in the main proceedings as evidence depends on the question of the extent to which the gathering of the data on the basis of which those reports were drawn up was in conformity with Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter.21      The referring court considers that, in order to answer that question, it needs to be determined whether Article 15(1) of Directive 2002/58, read in the light of the Charter, must be interpreted as meaning that the access of State authorities to data making it possible to identify the source and destination of a telephone communication from a suspect’s landline or mobile telephone, to determine the date, time, duration and type of that communication, to identify the communications equipment used and to establish the location of the mobile communication equipment used amounts to interference with the fundamental rights at issue which is so serious that such access should be restricted to combating serious crime, regardless of the period in respect of which the State authorities have sought access to the retained data.22      The referring court takes the view, however, that the length of that period is an essential factor for assessing the seriousness of the interference represented by access to traffic and location data. Thus, where that period is very short or the quantity of data gathered is very limited, the question should be raised whether the objective of combating crime in general, and not only combating serious crime, is capable of justifying such an interference.23      Finally, the referring court has doubts as to whether it is possible to regard the Estonian public prosecutor’s office as an independent administrative authority, for the purposes of paragraph 120 of the judgment of 21 December 2016, Tele2 (C‑203/15 and C‑698/15, EU:C:2016:970), which is capable of authorising access of the investigating authority to data relating to electronic communications such as the data referred to in Paragraph 1111(2) of the Law on electronic communications.24      The referring court states that the public prosecutor’s office directs the pre-trial procedure, while guaranteeing its lawfulness and effectiveness. Since the objective of that procedure is, inter alia, to gather evidence, the investigating authority and the public prosecutor’s office verify the circumstances incriminating and exonerating any suspect or person accused. If the public prosecutor’s office is satisfied that all the necessary evidence has been gathered, it brings the public prosecution against the accused. The powers of the public prosecutor’s office are exercised in its name by a public prosecutor who carries out his or her duties independently, as follows from Paragraph 30(1) and (2) of the Code of Criminal Procedure and Paragraphs 1 and 2 of the Law on the public prosecutor’s office.25      In that context, the referring court observes that its doubts as to the independence required by EU law are principally attributable to the fact that the public prosecutor’s office not only directs the pre-trial procedure, but also represents the public prosecution at the trial, that authority being, pursuant to national law, party to the criminal proceedings.26      It was in those circumstances that the Riigikohus (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)      Is Article 15(1) of Directive [2002/58], in conjunction with Articles 7, 8, 11 and 52(1) of the [Charter], to be interpreted as meaning that in criminal proceedings the access of State authorities to data making it possible to establish the source and destination, the date, the time, the duration and the type of the communication, the terminal used and the location of the mobile terminal used, in relation to a telephone or mobile telephone communication of a suspect, constitutes so serious an interference with the fundamental rights enshrined in those articles of the Charter that that access in the area of prevention, investigation, detection and prosecution of criminal offences must be restricted to the fighting of serious crime, regardless of the period to which the retained data to which the State authorities have access relate?(2)      Is Article 15(1) of Directive [2002/58], on the basis of the principle of proportionality expressed in the judgment of [2 October 2018, Ministerio Fiscal (C‑207/16, EU:C:2018:788)], paragraphs 55 to 57, to be interpreted as meaning that, if the amount of data mentioned in the first question, to which the State authorities have access, is not large (both in terms of the type of data and in terms of its temporal extent), the associated interference with fundamental rights is justified by the objective of prevention, investigation, detection and prosecution of criminal offences generally, and that the greater the amount of data to which the State authorities have access, the more serious the criminal offences which are intended to be fought by the interference must be?(3)      Does the requirement mentioned in the judgment of [21 December 2016, Tele2 (C‑203/15 and C‑698/15, EU:C:2016:970)], second point of the operative part, that the data access of the competent State authorities must be subject to prior review by a court or an independent administrative authority mean that Article 15(1) of Directive [2002/58] must be interpreted as meaning that the public prosecutor’s office which directs the pre-trial procedure, with it being obliged by law to act independently and only being bound by the law, and ascertains the circumstances both incriminating and exonerating the accused in the pre-trial procedure, but later represents the public prosecution in the judicial proceedings, may be regarded as an independent administrative authority?’

 Paragraph 17 of the Code of Criminal Procedure (kriminaalmenetluse seadustik, RT I 2003, 27, 166 ; RT I, 31.05.2018, 22)

Paragraph 1111 of the elektroonilise side seadus (Law on electronic communications, RT I 2004, 87, 593; RT I, 22.05.2018, 3)

Recitals 2 and 11 of Directive 2002/58

Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002

C. Strömholm

G. Pitruzzella

P.G. Xuereb

C. Lycourgos

K. Jürimäe

L. Bay Larsen

A. Prechal

A. Arabadjiev

J.‑C. Bonichot

R. Silva de Lapuerta

K. Lenaerts

Prokuratuur

H. K.

Case C‑746/18

2 March 2021

  In the light of all the foregoing considerations, the answer to the questions referred is that Article 5 of Directive 77/249 must be interpreted as meaning that:–        it does not preclude, as such, in the light of the objective of the proper administration of justice, a lawyer, provider of representation services in respect of his or her client, from being required to work in conjunction with a lawyer who practises before the judicial authority in question and who would be responsible, if necessary, towards that judicial authority, under a system placing lawyers under ethical and procedural obligations such as that of submitting to the judicial authority in question any legal element, whether legislative or case-law-based, for the purposes of the proper course of the procedure, from which the litigant is exempt if he or she decides to conduct his or her own defence;–        the obligation for a visiting lawyer to work in conjunction with a lawyer who practises before the judicial authority in question, in a system in which the latter have the possibility of defining their respective roles, the sole purpose of the lawyer who practises before the judicial authority in question being, as a general rule, to assist the visiting lawyer to ensure the proper representation of their client and the proper fulfilment of his or her duties to that judicial authority is not disproportionate, in the light of the objective of the proper administration of justice;–        a general obligation to work in conjunction with a lawyer who practises before the judicial authority in question which does not allow account to be taken of the experience of the visiting lawyer would go beyond what is necessary in order to attain the objective of the proper administration of justice.

On those grounds, the Court (First Chamber) hereby rules:Article 5 of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services must be interpreted as meaning that:–        it does not preclude, as such, in the light of the objective of the proper administration of justice, a lawyer, provider of representation services in respect of his or her client, from being required to work in conjunction with a lawyer who practises before the judicial authority in question and who would be responsible, if necessary, towards that judicial authority, under a system placing lawyers under ethical and procedural obligations such as that of submitting to the judicial authority in question any legal element, whether legislative or case-law-based, for the purposes of the proper course of the procedure, from which the litigant is exempt if he or she decides to conduct his or her own defence;–        the obligation for a visiting lawyer to work in conjunction with a lawyer who practises before the judicial authority in question, in a system in which the latter have the possibility of defining their respective roles, the sole purpose of the lawyer who practises before the judicial authority in question being, as a general rule, to assist the visiting lawyer to ensure the proper representation of their client and the proper fulfilment of his or her duties to that judicial authority is not disproportionate, in the light of the objective of the proper administration of justice;–        a general obligation to work in conjunction with a lawyer who practises before the judicial authority in question not allowing account to be taken of the experience of the visiting lawyer would go beyond what is necessary in order to attain the objective of the proper administration of justice.

judgment of 10 July 1991, Commission v France (C‑294/89, EU:C:1991:302)

judgment of 18 May 2017, Lahorgue, C‑99/16, EU:C:2017:391

judgment of 25 February 1988, Commission v Germany, 427/85, EU:C:1988:98

whether Article 5 of Directive 77/249 must, in the light of the objective of the sound administration of justice, be interpreted as precluding a lawyer, provider of representation services in respect of his or her client, from being required to work in conjunction with a lawyer who practises before the judicial authority in question and who would be responsible, if necessary, towards that judicial authority, under a system placing lawyers under ethical and procedural obligations such as that of submitting to the judicial authority in question any legal element, whether legislative or case-law-based, for the purposes of the proper course of the procedure, from which the litigant is exempt if he or she decides to conduct his or her own defence.

 VK is a party in appeal proceedings before the Supreme Court (Ireland) concerning determination of liability for the costs of judicial proceedings relating to the planning permission granted for the construction of a fallen-animal inspection unit close to his farm.8        The background to this reference for a preliminary ruling is a dispute in which the Supreme Court made an earlier reference for a preliminary ruling which gave rise to the judgment of 17 October 2018, Klohn (C‑167/17, EU:C:2018:833).9        Before the Supreme Court, VK had decided to conduct his own defence.10      Before the Court of Justice, he was represented by Ms O, Rechtsanwältin (lawyer), who is established in Germany.11      Following the delivery of the judgment of 17 October 2018, Klohn (C‑167/17, EU:C:2018:833), the case returned to the Supreme Court in order for it to rule on the appeal brought by VK in the light of the interpretation of the relevant EU law provisions resulting from that judgment.12      It is in that context that VK wished to engage Ms O, who is not established in Ireland, with a view to representing him in those proceedings before the Supreme Court.13      The referring court is uncertain whether Regulation 6 of the 1979 Regulations is compatible with EU law in so far as it requires a visiting lawyer to use the services of a lawyer who practises before the judicial authority in question, including in proceedings in which a party is entitled to conduct his or her own defence.14      Specifically, the referring court questions how it should interpret the judgment of 25 February 1988, Commission v Germany (427/85, EU:C:1988:98), in which the right of a Member State to require that a visiting lawyer work in conjunction with a lawyer who practises before the judicial authority in question was examined. That court asks, in essence, whether the interpretation adopted in that judgment precludes obliging a visiting lawyer to work in conjunction with a lawyer who practises before the judicial authority in question in all circumstances where his or her client would, in accordance with national law, be entitled to conduct his or her own defence.15      In that regard, the referring court states that the obligation to work ‘in conjunction with’ is limited. The lawyer who practises before the judicial authority in question therefore does not need to be the lawyer on record or the lawyer who presents the case in court. It is appropriate to leave to the two lawyers concerned, namely the visiting lawyer and the lawyer entitled to practise before the judicial authority in question, the task of defining the precise role each of them is to play. The role of the lawyer entitled to practise before the judicial authority in question consists, in general, in assisting the visiting lawyer in the event that adequate representation of the client and the proper fulfilment of obligations towards the judicial authority in question require knowledge or advice on national law, practice and procedure or ethics. Accordingly, the extent of that cooperation will depend heavily on the circumstances of each individual case, given that there is a real risk that a visiting lawyer might, inadvertently, fail in his or her duties to his or her client or to the judicial authority in question in the absence of assistance, in those areas, from a lawyer who practises before the judicial authority in question.16      Finally, the referring court notes that one of the ethical obligations that has to be complied with by any lawyer representing a party before the Irish courts lies in the obligation to research all relevant areas of the law and to bring to the attention of the judicial authority in question any legal element, whether legislative or case-law-based, liable to have a bearing on the proper course of the procedure. That obligation applies even if those elements are unfavourable to the cause defended by the lawyer in question. That is a feature of proceedings in common-law countries, where the bulk of the research necessary for a judicial authority to rule on the questions of law before it is carried out by the parties rather than by the judicial authority itself. The matter would be different only if they were conducting their own defence. In that situation, the judicial authorities themselves would have to assume responsibility in dealing with the legal issues.17      In those circumstances, the Supreme Court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:‘(1)      Is a member state precluded from exercising the option to be found in Article 5 of Directive [77/249] 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 “[work] in conjunction with”?(3)      In particular, would the imposition of a limited obligation to [work] “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?’

 Regulation 2(1) of the European Communities (Freedom to Provide Services) (Lawyers) Regulations, 1979

Article 1 of Directive 77/249

Article 5 of Council Directive 77/249/EEC of 22 March 1977

C. Strömholm

P. Pikamäe

N. Jääskinen

M. Safjan

C. Toader

L. Bay Larsen

J.‑C. Bonichot

The Law Society of Ireland and the Attorney General

The General Council of the Bar of Ireland

An Bord Pleanála

VK

Case C‑739/19

10 March 2021