The Supreme Court has decided to refer a question to the Court of Justice of the European Union (CJEU) about whether German lawyer Barbara Ohlig can represent Volkmar Klohn without first identifying an Irish-qualified lawyer to work with her.
The question arose after the CJEU answered an earlier reference in Klohn v An Bord Pleanála. The Supreme Court was then considering the finalisation of Mr Klohn’s appeal, including costs. An Bord Pleanála accepted that the appeal should be allowed and that costs awarded against Mr Klohn should be assessed on the basis that they were not prohibitively expensive under EU law. The method of that assessment and the costs of the appeal, including the reference, remained to be decided.
Mr Klohn wishes Ms Ohlig to represent him in those matters. The Court was satisfied that she is entitled to provide legal services in Ireland under the EU Lawyers’ Services Directive and its Irish implementing regulations. She had previously been registered in Ireland under a separate regime for lawyers establishing themselves in another member state, but her registration ended in 2012. The Court accepted her evidence that she had returned to Germany and was entitled to practise there as a Rechtsanwalt.
The remaining issue is whether Ireland may require her to practise “in conjunction with” an Irish-qualified lawyer, even though Mr Klohn could represent himself. EU rules allow member states to impose such a requirement in litigation. But Ms Ohlig argued that an EU court ruling against Germany meant it could not apply where self-representation is permitted. The Attorney General and Law Society of Ireland argued that Ireland’s rules differ because, with limited exceptions, parties may not be represented by people who are not qualified lawyers. The General Council of the Bar of Ireland described the point as unclear.
The Court said it could not determine the EU-law question with sufficient clarity and that a further reference was necessary. It did not decide whether Ms Ohlig may exercise a right of audience without an Irish lawyer, nor did it make a final ruling on the underlying appeal or costs in this judgment.
The Court said it would circulate a draft reference order to the parties within 10 to 14 days and invite written observations on its form by Friday, September 7. It said the decision to refer, and the broad issue for referral, had already been made. The reference order would be finalised after considering those observations and then sent to the CJEU.