Request for a preliminary ruling from the Bayerischer Anwaltsgerichtshof (Germany) lodged on 9 May 2023 – Halmer Rechtsanwaltsgesellschaft UG v Rechtsanwaltskammer München
(Case C-295/23, Halmer Rechtsanwaltsgesellschaft)
Language of the case: German
Referring court
Bayerischer Anwaltsgerichtshof
Parties to the main proceedings
Applicant: Halmer Rechtsanwaltsgesellschaft UG
Defendant: Rechtsanwaltskammer München
Joined parties: SIVE Beratung und Beteiligung GmbH, Dr Daniel Halmer, Rechtsanwalt
Questions referred
Does it constitute an unlawful restriction of the right to free movement of capital under Article 63(1) TFEU if, under the laws of a Member State, the admission to practise law held by a law company must be withdrawn where
1.1 a share in the law company is transferred to a person who does not satisfy the special professional requirements governing the acquisition of a share under the law of the Member State? Under those provisions, a share in a law company may be acquired only by a lawyer or other member of a bar association, a patent attorney, tax consultant, tax representative, auditor or certified accountant, a member of a legal profession from another State who is permitted to provide legal advice in Germany, or a patent attorney, tax consultant, tax representative, auditor or certified accountant of another State who is authorised to carry on that activity in Germany or a doctor or pharmacist;
1.2 a partner satisfies the special requirements set out in point 2.1.1., but is not professionally active in the law company?
1.3 because of the transfer of one or more shares or voting rights, the majority thereof are no longer held by lawyers?
Does it constitute an unlawful restriction of the right to free movement of capital under Article 63(1) TFEU where a partner who is not entitled to practise a profession in accordance with point 2.1.1. does not have a voting right, even though the company’s articles of association contain clauses, in order to protect the independence of legal professionals and of the company’s legal activities, under which it is ensured that the company is represented as managing directors or authorised officers only by lawyers, partners and the partners meeting are prohibited from influencing the management board through instructions or indirectly through the threat of disadvantages, partners’ resolutions in contravention of those rules are rendered ineffective and the obligation of legal confidentiality is extended to partners and persons acting on their behalf?
Do the restrictions referred to in points 2.1. and 2.2. satisfy the conditions laid down in Article 15(3)(a) to (c) of Directive 2006/123/EC 1 (‘the Services Directive’), for permitted interferences with the freedom to provide services?
In the event that, in the view of the Court of Justice, the applicant’s right to free movement of capital (points 2.1. and 2.2.) is not affected and there is no infringement of the Services Directive (point 2.3):
Is the right of the first joined party (S-GmbH) to freedom of establishment under Article 49 TFEU infringed by the restrictions referred to in points 2.1. and 2.2.?
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1 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).