OPINION OF ADVOCATE GENERAL
WATHELET
delivered on 9 February 2017 (1)
Case C‑99/16
Jean-Philippe Lahorgue
v
Ordre des avocats du barreau de Lyon,
Conseil national des barreaux (CNB),
Conseil des barreaux européens (CCBE),
Ordre des avocats du barreau de Luxembourg
(Request for a preliminary ruling from the tribunal de grande instance de Lyon (Regional Court, Lyons) (France))
(Reference for a preliminary ruling — Freedom to provide services — Directive 77/249/EEC — Article 4 — Article 5 — Practice of the legal profession — Router for accessing the ‘RPVA’ — Refusal to issue — Discrimination
I. Introduction
1. This request for a preliminary ruling concerns the interpretation of Article 4 of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services. (2)
2. The question of obstacles to the freedom of lawyers to provide services is not new. However, the computerisation of justice and the dematerialisation of procedural documents, the introduction of new means of communication, the opportunities for virtual storage or artificial intelligence programmes inevitably transform the way in which the profession and its practice are conceived.
3. The request for a preliminary ruling is set in that context. It follows the refusal of the ordre des avocats du barreau de Lyon (the Lyons Bar Association) (France) to issue to Mr Lahorgue, as a provider of cross-border services, the tool necessary for secure electronic communication with the registries of the French courts, namely the router for accessing the réseau privé virtuel des avocats (Private Virtual Network for Lawyers) (‘the router for RPVA access’).
II. Legal context
A. EU law
4. Article 4 of Directive 77/249 provides as follows:
‘1. Activities relating to the representation of the 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.
2. A lawyer pursuing these activities shall observe the rules of professional conduct of the host Member State, without prejudice to his obligations in the Member State from which he comes.
…’
5. Article 5 of Directive 77/249 states 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 be introduced, in accordance with local rules or customs, to the presiding judge and, where appropriate, to the President of the relevant Bar in the host Member State:
– to work in conjunction with a lawyer who practices 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. French law
1. Decree No 91-1197
6. Directive 77/249 was transposed into French law by décret no 91-1197, du 27 novembre 1991, organisant la profession d’avocat (Decree No 91-1197 of 27 November 1991 organising the profession of lawyer).
7. Under Article 202-1 of Decree 91-1197:
‘If a lawyer [a national of a Member State established on a permanent basis in one of the Member States] represents or defends a client in legal proceedings or before public authorities, he shall perform his duties under the same conditions as a lawyer registered at a French Bar.
…
In civil cases, if representation before the tribunal de grande instance [Regional Court] is mandatory, he may accept instruction only after electing an address for service at the office of a lawyer established under the court to which the matter has been referred and to which the procedural documents are properly notified. …
When representation is mandatory before the cour d’appel [Court of Appeal], he may represent a client only after electing address for service at the office of a lawyer authorised to represent parties before the court and to which the procedural documents are properly notified. …’
2. The Code of Civil Procedure
8. Decree No 2005-1678 of 28 December 2005 introduced a new Title XXI into the code de procédure civile (Code of Civil Procedure) entitled ‘Electronic communication’.
9. Among the provisions in that title, Article 748-1 of the Code of Civil Procedure currently in force provides that ‘dispatches, deliveries and notifications of pleadings, documents, notices, warnings or summonses, of reports, of minutes and of copies and execution copies of judicial decisions may be effected by electronic means under the conditions and according to the procedure laid down by this title, without prejudice to the special provisions requiring the use of this kind of communication’.
10. Moreover, so far as concerns proceedings with mandatory representation before the courts of appeal, Article 930-1 of the Code of Civil Procedure provides as follows:
‘Procedural documents shall be submitted to the court by electronic means, failing which they shall be declared inadmissible by the court of its own motion.
If the document cannot be submitted by electronic means for a reason beyond the control of the person responsible for it, it shall be drawn up on paper and lodged at the registry …
Notices, warnings or summonses shall be sent to the lawyers of the parties by electronic means, unless this is impossible for a reason beyond the control of the sender.
An order of the Keeper of the Seals shall lay down the procedure for electronic exchanges.’
3. The arrêté du 7 avril 2009 relatif à la communication par voie électronique devant les tribunaux de grande instance (Decree of 7 April 2009 on electronic communication before the regional courts)
11. Under Article 5 of the decree of 7 April 2009, (3) ‘access for lawyers to the electronic communication system provided to the courts is acquired by connecting to a private independent network operated under the responsibility of the Conseil national des barreaux (National Bar Council) called the ‘réseau privé virtuel des avocats’ (Private Virtual Network for Lawyers; ‘RPVA’)’.
12. Article 9 of the decree provides, moreover, that ‘the security of the lawyers’ connection to the RPVA is guaranteed by an identification mechanism. This mechanism is based on a certification service which shall ensure authentication as an individual lawyer … The mechanism shall include a function for verifying the validity of the electronic certificate. This shall be issued by a provider of electronic certification services acting on behalf of the National Bar Council, the certification authority.’
III. The RPVA
13. In the mid-2000s, France began to dematerialise legal proceedings.
14. That process culminated in the signing of an electronic communication protocol between the courts and lawyers (‘ComCi TGI’ for courts of first instance and ‘ComCi CA’ for courts of second instance).
15. The purpose of that protocol is, inter alia, to improve communication between the courts and lawyers by means of the dematerialised exchange of structured data. Technically, there are two different intranet networks, which are linked by a platform called ‘e-barreau’. Those two networks are, on the one hand, the intranet of the courts managed by the ministère de la justice (Ministry of Justice) (the Private Virtual Network for Courts) and, on the other, the intranet for lawyers managed by the Conseil national des barreaux (National Bar Council (CNB)), namely the RPVA.
16. The data exchanged between law firms and the RPVA services platform are encrypted using an algorithm between the VPN router, which is on the firm’s local network before the firm’s Internet connection device, and the VPN front-end which is at the entry to the RPVA service platform.
17. Only routers duly identified and authorised to connect to the RPVA service may communicate with the VPN front-end at the entry to the RPVA platform and thus use the e-barreau service. According to the explanations provided by the CNB at the hearing on 11 January 2017, the routers are to be replaced by USB keys.
18. Physically, that device consists of an electronic certificate stored on a physical cryptographic medium for each lawyer, namely a storage device with a USB plug. That device is called the ‘RPVA router’ and makes it possible to authenticate the users of the e-barreau services.
19. In practice, authentication is possible because the lawyer’s personal electronic certificate is linked to the national register of lawyers, which is automatically updated by means of daily synchronisation with the registers of the lawyers of all the French Bar associations.
20. Following that protocol, several conventions have been successively concluded between the Ministry of Justice and the CNB in order to lay down the detailed rules and conditions for electronic communication between lawyers and the courts of first and second instance.
21. In accordance with Article VI of the Convention of 16 June 2010 between the Ministry of Justice and the CNB, registration with ‘ComCi CA’ and ‘ComCi TGI’ is effected through the Bar association to which the lawyer belongs. The RPVA router is also issued by that Bar association. (4)
IV. Facts of the dispute in the main proceedings
22. Mr Lahorgue, who is of French nationality, is a lawyer registered at the Luxembourg Bar.
23. Mr Lahorgue requested a router for RPVA access from the Lyons Bar Association, which did not accede to his request on the ground that he was not registered at the Lyons Bar.
24. Following that refusal, Mr Lahorgue summoned the Lyons Bar Association, the CNB, the Council of Bars and Law Societies of Europe (CCBE), and the Luxembourg Bar Association to appear before the presiding judge of the tribunal de grande instance de Lyon (Regional Court, Lyons) (France) in proceedings for interim measures, seeking an order that the Lyons Bar Association issue to him, within a week and subject to a penalty, a secure router for RPVA access so that he might fully carry out the profession of a lawyer in France and under the same conditions as a French lawyer.
25. The referring court has doubts as to the compatibility with EU law of the decision of the Lyons Bar Association to refuse his request.
26. In particular, it considers that, since the exercise of remedies in criminal or social matters does not entail any restriction for a lawyer of another Member State in terms of an obligation to practice in conjunction with a lawyer registered at the Bar in the chosen court’s district, it may be inconsistent with the freedom to provide services to require a lawyer from another Member State to resort to a lawyer registered at the Bar of the district of the court concerned in order to use the RPVA.
27. In those circumstances, the presiding judge of the tribunal de grande instance de Lyon (Regional Court, Lyons) considered that it was necessary to stay the proceedings and to refer a question to the Court of Justice for a preliminary ruling.
V. The reference for a preliminary ruling and the proceedings before the Court of Justice
28. By order for reference of 15 February 2016, which was received at the Court on 19 February 2016 and completed by supplementary order for reference of 14 March 2016, registered at the Court on 22 March 2016, the presiding judge of the tribunal de grande instance de Lyon (Regional Court, Lyons) therefore decided to refer the following question to the Court of Justice for a preliminary ruling:
‘Is the refusal to issue a router for accessing the Private Virtual Network for Lawyers (RPVA) to a lawyer duly registered at the Bar of a Member State in which he wishes to practice his profession as a free provider of services contrary to Article 4 of Directive 77/249/EC, on the basis that it constitutes a discriminatory measure which could impede the practice of his profession as a free provider of services in situations where that local lawyer is not required by law?’
29. That question contains an affirmation which does not reflect the situation of the applicant in the main proceedings since it envisages the situation of a lawyer ‘registered at the Bar of a Member State in which he wishes to practice his profession as a free provider of services’, which is not the case of Mr Lahorgue.
30. Furthermore, the wording alters the suggested question which he had himself formulated. Although the referring court is not bound by the suggestions of the parties in that regard, (5) it is apparent from the reference for a preliminary ruling that the referring court intended, in the present case, to refer ‘the question put forward by the applicant’. (6)
31. Since that suggested question contains neither contradiction nor inaccuracy and reflects the factual situation of the applicant in the main proceedings, I consider that the question should be kept as it is stated in paragraph 1 of the request for a preliminary ruling rather than that posed in the operative part:
‘Is the refusal to issue a router for accessing the Private Virtual Network for Lawyers (RPVA) to a lawyer duly registered at the Bar of a Member State solely on the ground that he is not registered at the Bar of the other Member State in which he wishes to practice his profession as a free provider of services contrary to Article 4 of Directive 77/249/EC, on the basis that it constitutes a discriminatory measure which could impede the practice of his profession as a free provider of services in situations where [a] local lawyer is not required by law?’
32. Written observations have been submitted by the CNB, the French Government and the European Commission. They also presented oral argument at the hearing on 11 January 2017.
33. Mr Lahorgue and the Lyons Bar Association have not submitted written observations. However, they presented oral argument at that hearing.
VI. Analysis
A. The case-law relating to lawyers’ freedom to provide services
34. As has been pointed out in the introduction to this Opinion, the question of lawyers’ freedom to provide services and its potential obstacles is not new. Even before the adoption of Directive 77/249, the Court has already had occasion to confirm, in the space of six months, the applicability, to lawyers, of the provisions of the Treaty on freedom of establishment and freedom to provide services. (7)
35. It is therefore unsurprising that the principles identified in the interpretation of those provisions of the Treaty were applied to the provision of services by the legal profession.
36. Accordingly, Article 56 TFEU requires not only the elimination of all discrimination on grounds of nationality against providers of services established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit or further impede the activities of a provider of services established in another Member State where he lawfully provides similar services. (8)
37. In other words, Article 56 TFEU precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State. (9)
38. However, the Court has stated that, in accordance with relevant traditional case-law, national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty were authorised provided they fulfilled the four following conditions: they must
– be applied in a non-discriminatory manner;
– be justified by overriding reasons in the public interest;
– be suitable for securing the attainment of the objective pursued; and
– not go beyond what is necessary in order to attain that objective. (10)
B. Application of the principles to the present case
1. Preliminary remarks on confining the case to the situation envisaged by the referring court and on the legal framework
(a) Confining the case to proceedings in which representation by a lawyer is not mandatory
39. The question raised in the main proceedings is whether Article 4 of Directive 77/249 precludes a Member State from allowing only lawyers registered at a Bar association of that State to have access to technical means which facilitate electronic communication of procedural documents to the courts of that Member State.
40. It would seem from the request for a preliminary ruling, and from the written and oral observations which have been submitted to the Court, that the rules of procedure applicable to criminal and social proceedings do not require the parties to be represented by a lawyer, or, consequently, to use a lawyer who is a member of the Bar in the district of the court seised. However, the referring court seems to start from the premiss that the fact that the lawyer established in another Member State does not have a router for RPVA access requires him, in fact, to use such a lawyer.
41. According to the French Government, the question raised by the referring court is relevant only in those proceedings and not in proceedings in which representation is mandatory. In the latter type of proceedings, both lawyers established in France (and registered at a Bar association other than that linked to the court hearing the case) and lawyers established in another Member State must act in conjunction with a lawyer entitled to practice his profession at that court. However, only the latter is likely to have need of a router for RPVA access.
42. On the other hand, the Commission considers that the reply to the question of whether the obligation to be registered at the local Bar association in order to use the RPVA is compatible with Article 4 of Directive 77/249 is unconnected with the type of proceedings at issue (civil, criminal or social).
43. Since the referring court has limited its description of the legal and factual framework only to proceedings in which representation by a lawyer is not mandatory, I consider that it is not for the Court to deal, in its reply, with a situation in respect of which a question has not been put to it. (11)
(b) Legal framework
44. In order to be certain that it correctly understood the question raised by the referring court and to give it a useful reply, the Court sent it a request for clarification on 12 October 2016 asking it to confirm, by 21 November 2016, that, in the proceedings which it envisaged (that is to say criminal and social proceedings), French law permitted the communication of procedural documents by post.
45. It is apparent from the reply of the referring court of 14 December 2016, received at the Court on 23 December 2016, and from the additional explanations given by the representative of the French Government at the hearing on 11 January 2017, that mandatory communication by electronic means is, in principle, limited to appeal proceedings brought before the courts for which representation by a lawyer is mandatory.
46. However, the use of electronic communication has been made possible — but not mandatory — in three other situations in which representation by a lawyer is optional: for certain proceedings before the regional courts, (12) for proceedings before the courts of appeal in which representation by the lawyer is optional, (13) and for proceedings before the commercial courts. (14)
47. In any event, whatever the proceedings in which electronic communication is authorised, access to that means of communication is limited to lawyers registered in the district of the court concerned. For other lawyers, including lawyers established in another Member State, communications by lodging at the registry or by post are the only ones authorised.
2. The existence of a restriction
48. It is apparent from the legal framework thus set out that the use of electronic communication is authorised in certain proceedings in which representation by a lawyer is not mandatory, that is to say, the proceedings to which the request for a preliminary ruling refers. (15)
49. Since that possibility is conditional on access to the RPVA, there can be little doubt that the refusal to issue the router for RPVA access to lawyers who are not registered at a French Bar association is likely to constitute a restriction on the freedom to provide services.
50. As the CNB states, that refusal risks hindering or making less attractive the exercise of freedom to provide services by lawyers who are not registered with a French Bar association since, quite simply, they cannot have access to the service of dematerialisation of proceedings unless they systematically ask for the assistance of a lawyer registered at a French Bar who has a router for RPVA access. (16)
51. Legislation which would make the cross-border provision of services of lawyers less attractive or more difficult constitutes a restriction prohibited in Article 56 TFEU and in Article 4 of Directive 77/249. (17)
3. The existence of a justification
52. According to the settled case-law recalled above, a restriction ‘may be justified where it serves overriding requirements [in] the public interest, is suitable for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it’. (18)
(a) The existence of overriding reasons in the public interest
53. The CNB and the French Government invoke the principle of the proper administration of justice as an overriding requirement in the public interest which is capable of justifying the refusal to grant a router for RPVA access to lawyers who are not registered at a French Bar. To this first justification, the French Government adds the protection of the ultimate recipient of legal services.
54. Certainly, ‘first, the protection of consumers, in particular recipients of the legal services provided by persons concerned in the administration of justice and, secondly, the safeguarding of the proper administration of justice, are objectives to be included among those which may be regarded as overriding requirements [in] the public interest capable of justifying a restriction on freedom to provide services …’. (19)
55. The protection of the litigant, that is to say, the ‘ultimate consumer of legal services’ and the proper administration of justice are necessarily linked to requirements of supervision and liability of the provider of the service. (20)
56. In that regard, it is useful to point out that, in spite of the differences there may be between the Member States, there is a common view of the role of the lawyer in the legal order of the European Union: that of a collaborator in the administration of justice required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs. (21) The counterpart to that protection lies in the rules of professional ethics and discipline which are laid down and enforced in the general interest. (22)
57. According to the Court’s settled case-law, that conception derives from the legal traditions common to the Member States. It is also found in the legal order of the European Union, as is apparent from the provisions of Article 19 of the Statute of the Court of Justice (23) and more specifically the fourth paragraph thereof, according to which ‘only a lawyer authorised to practice before a court of a Member State or of another State which is the party to the Agreement on the European Economic Area may represent or assist a party before the Court’.
58. It is from this perspective that the Court itself requires lawyers to provide a certificate that they are authorised to practice before the court of a Member State or of another State which is a party to the EEA Agreement in order to be able to represent the party in a direct action, (24) and to qualify for the privileges, immunities and facilities reserved by the Rules of Procedure of the Court of Justice for agents, advisers and lawyers. (25) Finally, the same proof is required in order to be able to use the e-Curia computer application which makes it possible for procedural documents to be lodged and served by electronic means. (26)
59. The impossibility for a lawyer who is not registered at a French Bar association to obtain a router for RPVA access reflects similar concerns: the obligation to ensure the reliability of the identification of lawyers who are party to electronic communication and, in particular, the confidentiality of the exchanges. (27) According to Article 9 of the decree of 7 April 2009, in particular, ‘the security of the lawyers’ connection to the RPVA is guaranteed by an identification mechanism. This mechanism is based on a certification service which ensures authentication as an individual lawyer’.
60. In that sense, the router for RPVA access and the rules for issuing it are part of the proper administration of justice and the protection of the ultimate consumer of legal services.
(b) The suitability of the contested measures for obtaining the recognised objective
61. Moreover, those means — that is to say a router for RPVA access and the rules for issuing it — seem to be appropriate for ensuring those objectives since it is the local Bar associations which are also responsible for entering lawyers in the register of lawyers and for updating it and a lawyer who wishes to be connected to the RPVA is identified by means of a personal electronic certificate linked to the national register of lawyers, automatically updated by means of daily synchronisation with the registers of the lawyers of all the French Bar associations.
62. The system therefore permits only those lawyers who fulfil the necessary conditions for practising as a lawyer to be connected to the RPVA.
(c) The proportionality of the contested measures
63. On the other hand, to rely on the lack of a lawyers’ register at EU level to justify the pure and simple refusal to issue a router for RPVA access to lawyers who are not registered at a French Bar association seems to me to go beyond what is necessary to authenticate status as a lawyer and, thereby, to ensure the protection of the recipients of legal services and the proper administration of justice in proceedings in which representation is not mandatory.
64. To meet the requirement of proportionality, the measure under consideration must not go beyond what is necessary for obtaining the lawful objective pursued. In other words, the legislative authority must choose, amongst the various possible options, that which least undermines the right or freedom at issue.
65. Although proof of identity and status as a lawyer may undoubtedly be required as a precondition for the issue of a router for RPVA, daily verification of that status seems excessive since it means that, for technical reasons alone, it is impossible to use a modern, rapid and secure means of communication. (28)
66. The resulting prohibition is all the more disproportionate because the consequence is that the only way of communicating with the registry of the courts concerned is by post. That practice does not seem to me to be in keeping with the working methods used at the beginning of the 21st century.
67. I also note that, in this latter situation, the concern to ensure a proper administration of justice and to guarantee the protection of the recipients of legal services seems less overriding since verification of status as a lawyer is not systematically and consistently required in the event that postal means are used.
68. In those circumstances, the balance between, on the one hand, a lawyer’s freedom to provide services in a modern world and, on the other hand, the protection of the recipients of legal services and the proper administration of justice may be achieved by requiring renewal of proof of status as a lawyer periodically or on the occasion of each new proceedings for example.
69. Indeed, it is conceivable that if France chose to extend the use of a local lawyer to proceedings in which representation is not mandatory (a possibility offered by Article 5 of Directive 77/249), the prohibition against use by the legal service provider of a router for RPVA access might be justified. (29)
70. However, the relevance of such a procedure, conceived more than 40 years ago, would without a doubt be re-evaluated in the light of modern practice in the legal profession and the contemporary requirements of the litigant, but without sacrificing the safeguards necessary for the litigant’s protection. Nevertheless, such an examination exceeds the task of the court and it is for the legislature to assume that responsibility, if necessary.
VII. Conclusion
71. The refusal to issue a router for RPVA access to a lawyer duly registered at the Bar of a Member State solely on the grounds that he is not registered at the Bar of the Member State in which the RPVA is established constitutes a restriction on the freedom to provide services.
72. Whilst that refusal is explained by the concern to ensure the proper administration of justice and the protection of the litigant, the ultimate recipient of legal services, by guaranteeing the authentication of status as a lawyer, such a measure goes beyond what is necessary for obtaining the aforementioned objectives.
73. Therefore, in the light of these considerations, I propose that the Court reply to the question referred for a preliminary ruling by the presiding judge of the tribunal de grande instance de Lyon (Regional Court, Lyons) (France) as follows:
The refusal to issue a router for access to the Private Virtual Network for Lawyers to a lawyer duly registered at the Bar of a Member State, solely on the grounds that he is not registered at the Bar of the other Member State in which he wishes to exercise the profession of lawyer as a free provider of services, is contrary to Article 4 of Council Directive 79/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services.