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THE FACTS

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.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  The background to the case

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.

2.  The proceedings before the domestic courts

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.

 

B.  Relevant domestic law

1.  The Basic Law

The relevant Articles of the Basic Law read as follows:

Article 3 § 1

“All persons shall be equal before the law.”

Article 12 § 1

“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.”

2.  The Federal Lawyers Act

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.

3.  The procedural provisions allowing university professors and lecturers to act as representatives before certain courts

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.

COMPLAINTS

1.  The applicant complained of the decision by the President of the Munich Court of Appeal to strike his name off the Bar Council roll, which had been upheld by subsequent decisions of the domestic courts.

He alleged that the decisions in question infringed his right to the peaceful enjoyment of his possessions under Article 1 of Protocol No. 1.

2.  The applicant further contended that the decisions in issue had denied him equal treatment in respect of his right to the peaceful enjoyment of his possessions, and were therefore contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.

THE LAW

1.  The applicant maintained that the decisions of the German courts and also section 7, point 10, and section 14(2), point 5, of the Federal Lawyers Act infringed his right to the peaceful enjoyment of his possessions under Article 1 of Protocol No. 1, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Referring to its existing case-law the Court observes that, in so far as it relates to loss of income, the applicant’s complaint falls outside the scope of Article 1 of Protocol No. 1, which does not apply to future income but only to existing possessions, that is, income once it has been earned or where an enforceable claim to it exists (see, in particular, Van Marle and Others v. the Netherlands, 26 June 1986, §§ 39-41, Series A no. 101; Wendenburg and Others v. Germany (dec.), no. 71630/01, ECHR 2003-II; and Buzescu v. Romania, no. 61302/00, § 81, 24 May 2005). However, Article 1 does apply to lawyers’ practices and their clientele, as these are entities of a certain worth that have in many respects the nature of a private right and constitute assets and, hence, possessions within the meaning of the first sentence of Article 1 (see Van Marle and Others, cited above, § 41; Döring v. Germany (dec.), no. 37595/97, ECHR 1999-VIII; Wendenburg and Others, cited above; and Buzescu, cited above, § 81 in fine).

In the instant case, while the applicant’s appointment as a university lecturer as his principal occupation would most likely have resulted in any case in his scaling down his activities as a lawyer, the Court accepts that his removal from the Bar Council roll, forcing him to close down his legal practice, led to the loss of part of his clientele. There was therefore interference with his right to the peaceful enjoyment of his possessions. The interference amounted to a measure to control the use of property, which falls to be considered under the second paragraph of Article 1 of Protocol No. 1, as the Court has found in similar cases (see, in particular, Döring, cited above, and Buzescu, cited above, § 88).

As to the lawfulness of the interference, the Court observes first of all that the impugned measure was based on section 7, point 10, and section 14(2), point 5, of the Federal Lawyers Act. These provisions expressly state that the functions of lawyer and permanent civil servant are incompatible, without making any exception for university professors and lecturers. In addition, the domestic courts, basing their decisions in particular on the settled case-law of the Federal Court of Justice and the Federal Constitutional Court in the matter, confirmed that the provisions in question were not contrary to the Basic Law.

With regard to the aims pursued by the interference, the Court considers that it was unquestionably designed to promote the public interest in ensuring the independence of the profession of lawyer in the interests of the proper administration of justice. The status of permanent civil servant, characterised by the overriding importance of the public-law relationship with the State, is incompatible in principle with the profession of lawyer, an essentially liberal profession whose members occupy a central role as independent officers of the court.

Finally, the Court must consider whether the interference was proportionate. In that regard it reiterates that the second paragraph of Article 1 of Protocol No. 1 has to be construed in the light of the general principle set out in the first sentence of that Article. This sentence has been interpreted by the Court as including the requirement that a measure of interference should strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see, inter alia, Sporrong and Lönnroth v. Sweden, 23 September 1982, § 69, Series A no. 52). The search for this balance is reflected in the structure of Article 1 as a whole and hence also in the second paragraph. There must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Tre Traktörer AB v. Sweden, 7 July 1989, § 59, Series A no. 159).

The applicant contended that the striking of his name off the Bar Council roll had been disproportionate to the aim pursued for the purposes of Article 1 of Protocol No. 1.

He submitted that applying section 7, point 10, and section 14(2), point 5, of the Federal Lawyers Act systematically to all civil servants without taking into consideration the particular situation of university professors and lecturers was unacceptable. The latter had a “liberal” (freiheitlich) status which made their case fundamentally different from that of other civil servants, making the application of the incompatibility rule to them even more difficult to comprehend. The applicant pointed out that university professors and lecturers exercised their profession wholly independently on the basis of the freedom of science, research and teaching guaranteed by Article 5 § 3 of the Basic Law. That also explained why they were authorised to plead before the courts, a fact which implied that the professions of lawyer and university lecturer were not incompatible. The lack of justification for the measure was further demonstrated by the rules existing in other European countries such as France and Spain.

The Court observes first of all that, in the instant case, the domestic courts – and in particular the relevant division of the Bavarian Lawyers’ Professional Practice Tribunal – gave detailed reasons as to why the domestic legislation did not exempt university professors and lecturers from the rule of incompatibility between the functions of lawyer and permanent civil servant. One reason was that, notwithstanding the relative freedom enjoyed by university lecturers, the factors uniting them with other permanent civil servants predominated, as illustrated in particular by the fact that the applicant had to seek permission from his employer in order to carry on a secondary activity and that he had to declare any income in excess of a certain amount to his employer. A further reason was that, in practice, a number of procedural provisions (see “Relevant domestic law” above) allowed professors and lecturers in law to plead before the domestic courts, and in particular before the Federal Constitutional Court, on the same basis as lawyers.

The result of this, in the Court’s view, is that the scope of the impugned interference is in practice very limited. Firstly, the applicant can retain some of his clients and represent them before certain domestic courts, even if he is not registered to practise as a lawyer. Secondly, the activity in question is only secondary, being confined in the applicant’s case to an average of one day a week.

The Court further reiterates that the domestic authorities enjoy a wide margin of appreciation in determining the necessity of a measure of control. As a rule, the legislature’s judgment in this connection will be respected unless it is manifestly without reasonable foundation (see Lithgow and Others v. the United Kingdom, 8 July 1986, § 122, Series A no. 102; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 75, ECHR 1999-III; and Wendenburg and Others, cited above).

In the Court’s view, the reasons given by the domestic courts, with particular reference to the existence of procedural provisions permitting university professors and lecturers to plead on the same basis as lawyers before certain domestic courts, cannot be said to be without reasonable foundation, despite the fact that in other European countries which have different traditions in the matter the law allows university professors and lecturers, including those who are permanent civil servants, to be admitted to the Bar.

In view of all these factors, the Court considers that the respondent State did not overstep its margin of appreciation and, regard being had to the legitimate aim pursued, did not fail to strike a “fair balance” between the applicant’s interests and the public interest in ensuring the proper administration of justice.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2.  The applicant further contended that the impugned decisions denied him equal treatment in respect of his right to the peaceful enjoyment of his possessions, and were therefore contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The applicant considered, in particular, that the fact that university professors or lecturers who were appointed as permanent civil servants could practise as tax advisers or auditors (Wirtschaftsprüfer), but not as lawyers, amounted to an unjustified difference in treatment.

The Court reiterates that a difference of treatment is discriminatory for the purposes of Article 14 if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences between otherwise similar situations justify a difference in treatment (see, mutatis mutandis, Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, ECHR 2005-VI).

The Court considers that, in the instant case, the professions to which the applicant refers are clearly distinguishable from the profession of lawyer, which involves a much broader range of activities as an independent officer of the court.

Having regard to the legitimate aim pursued and the margin of appreciation available to the State, the difference in treatment cannot be said to be unreasonable or to impose a disproportionate burden on the applicant (see the Court’s reasoning in relation to Article 1 of Protocol No. 1 above). The provisions complained of must therefore be considered to have an objective and reasonable justification.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

LEDERER v. GERMANY DECISION


LEDERER v. GERMANY DECISION