LEDERER v. GERMANY
Inadmissible
The applicant, Mr Gerd Lederer, is a German national who was born in 1950 and lives in Munich. He was represented before the Court by Mr M. Kleine-Cosack, a lawyer practising in Freiburg. The facts of the case, as submitted by the applicant, may be summarised as follows. On 6 September 1980 the Bavarian Minister of Justice admitted the applicant to the Bar of the Munich District Court (Amtsgericht) and the Munich Regional Court (Landgericht) to practise as a lawyer (Rechtsanwalt). On 10 October 1985 the applicant was also admitted to the Bar of the Munich Court of Appeal (Oberlandesgericht) and, on 11 May 1992, to the Bar of the Landshut Regional Court. He was appointed as a lecturer in business and employment law at Munich University of Applied Sciences (Fachhochschule) with effect from 1 September 1997, with the status of probationary civil servant (Beamter auf Probe). In a letter of 12 August 1997, the applicant indicated his wish to continue practising as a lawyer in accordance with the first sentence of section 47(1) of the Federal Lawyers Act (Bundesrechtsanwaltsordnung – see “Relevant domestic law” below). By orders issued on 25 September 1997, 4 March 1998 and 11 January 1999, the applicant obtained the relevant authorisations, valid for a specified period. The applicant was appointed as a permanent civil servant (Beamter auf Lebenszeit) with effect from 26 May 1999. By a decision of 19 November 1999, the President of the Munich Court of Appeal ordered the applicant’s name to be struck off the Bar Council roll in accordance with section 14(2), point 5, of the Federal Lawyers Act (see “Relevant domestic law” below) on the ground that he had not had his name removed from the roll despite being appointed as a permanent civil servant. The President of the Court of Appeal stressed that the relevant provision was mandatory and left no room for discretion. It was therefore neither necessary nor possible to make an exception for university professors and lecturers: the legislation was based on the principle that the distinctive status of permanent civil servants, and in particular the overriding importance of the public-law relationship between them and the State (öffentlich-rechtliche Bindung an den Dienstherrn) was incompatible with the profession of lawyer. The occupation of university lecturer was not fundamentally different in that respect from that of any other serving civil servant. By a decision of 19 March 2001 a division of the Bavarian Lawyers’ Professional Practice Tribunal (Senat des Bayerischen Anwaltsgerichtshofs) upheld the decision to strike the applicant’s name off the Bar Council roll, on the same grounds. It considered, additionally, that the applicant’s work as a lawyer was only a secondary occupation and that the requirements in terms of compliance with the Constitution were therefore less stringent than in the case of a primary occupation. In the view of the professional practice tribunal, the measure complained of also complied with the principle of proportionality as the legislature had sought to ensure the free exercise of the profession of lawyer in the public interest and in the interests of the proper administration of justice. Moreover, several factors made the interference less serious: removal from the Bar Council roll was required only in the case of judges and permanent civil servants, and a number of procedural provisions (see “Relevant domestic law” below) permitted university professors and lecturers to act as representatives before the courts (Prozessbevollmächtigte) and also to prepare expert reports. In view of the numerous provisions of this kind promoting the interests of professors and lecturers, the Federal Constitutional Court had always refused to allow an exception in their case to the general rule of incompatibility between the functions of permanent civil servant and lawyer. The professional practice tribunal also considered that the incompatibility rule was not in breach of the principles of equality and freedom to exercise the profession of one’s choosing enshrined in Articles 3 § 1 and 12 § 1 respectively of the Basic Law (Grundgesetz – see “Relevant domestic law” below) and that, notwithstanding the relative freedom enjoyed by university professors and lecturers, no specific regulations were needed to protect their interests, as the factors uniting them with other civil servants predominated. Hence, university professors and lecturers, like all civil servants, needed to obtain authorisation in order to carry on a secondary professional activity. Such authorisation was generally granted only if the activity did not account for more than a certain percentage of their weekly work. The authorisation granted to the applicant on 6 October 1997 to “act as counsel and representative in business-law and employment-law cases, in particular as a lawyer” (Beratung und Vertretung in wirtschaftsprivat- und arbeitsrechtlichen Angelegenheiten, insbesondere als Rechtsanwalt) specified that his secondary activity must not account for more than one day a week on average. Furthermore, any income in excess of a certain amount had to be declared to his employer, a requirement which was incompatible with the free exercise of the profession of lawyer. Finally, the professional practice tribunal considered that the fact that, in the new Länder, university professors and lecturers had the status of employees rather than civil servants had no bearing on the situation, as it was not a question of incompatibility between two professions, but of the incompatibility which existed in principle between the status of civil servant and that of lawyer. That also explained why the applicant could have practised as a tax adviser (Steuerberater) under section 57(3), point 4, of the Tax Advisers Act (Steuerberatungsgesetz), as the profession of tax adviser was a liberal profession different from that of lawyer. In conclusion, the tribunal observed that European law was not applicable in the instant case, as the matter was a purely internal one within a member State; the applicant was a German citizen who did not have a residence in another member State and had not obtained any qualifications in such a State. Member States were free to regulate access to professions by their own nationals, since there was no European directive governing access to the profession of lawyer. Finally, even if a national of another member State, such as France – where no such incompatibility existed between the occupation of lawyer and that of a university professor or lecturer who was a civil servant – wished to practise as a lawyer in Germany on the basis of the principle of free movement of services and freedom of establishment, there would be no discrimination. A non-national lawyer could intervene in proceedings in Germany only by working together with a German colleague, a restriction to which German lawyers were, of course, not subject. If a non-national lawyer actually wished to be admitted to the Bar of a German court, sections 6 to 42 of the Federal Lawyers Act would apply to him or her in the same way as to a German lawyer. By a decision of 22 April 2002, the Special Division of the Federal Court of Justice dealing with matters relating to lawyers (Senat für Anwaltssachen des Bundesgerichtshofes) dismissed the applicant’s appeal, referring to its settled case-law in the matter. It stressed in particular that, as the activity in question was a secondary occupation, the legislature had relatively broad discretion in restricting the applicant’s ability to practise as a lawyer when he was already a university lecturer with permanent civil servant status. By a decision of 12 August 2002, the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a panel of three judges, declined to accept the applicant’s constitutional appeal for adjudication on the ground that it was not of constitutional significance in principle and did not involve a breach of the applicant’s fundamental rights. The relevant Articles of the Basic Law read as follows: “All persons shall be equal before the law.” “All Germans shall have the right freely to choose their occupation or profession, their place of work and their place of training. The practice of an occupation or profession may be regulated by or pursuant to a law.” Section 7, point 10, of the Federal Lawyers Act states that admission to the Bar is to be refused if the candidate is a permanent civil servant. Section 14(2), point 5, states that lawyers are to be removed from the Bar Council roll on appointment as permanent civil servants. The first sentence of section 47(1) states that lawyers who are also civil servants – but without permanent status – may not practise as lawyers. However, the judicial authorities of the Land in question may allow the lawyer, at his or her request, to continue to practise if this is not prejudicial to the proper administration of justice. Article 138 of the Code of Criminal Procedure (Strafprozessordnung), section 67 of the Administrative Courts Act (Verwaltungsgerichtsordnung), Article 392 of the Tax Code (Abgabenordnung), Article 40 of the Federal Disciplinary Code (relating to civil servants) (Bundesdisziplinarordnung) and section 22 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) state that law professors and lecturers in German universities (Rechtslehrer an deutschen Hochschulen) may act as legal representatives on the same basis as lawyers before the relevant courts. In cases before the civil courts (Article 157 § 3 of the Code of Civil Procedure (Zivilprozessordnung)), university professors and lecturers must obtain authorisation on a case-by-case basis.