Case C-76/90 Säger v Dennemeyer [1991] ECR 4221

• Defendant was a patent renewal specialist, which involved monitoring patents by means of a computerized system, advising the holders of those patents when the fees for renewing the patents become due and paying those fees on their behalf.

• Defendant’s head office was in UK, where it was allowed to undertake such work, but also worked for clients based in Germany.

  • Under a German law this constituted legal advice which was reserved to qualified lawyers who were licensed by a German authority, and Säger therefore tried to stop Defendant from continuing to operate.

• ECJ said that the restriction was an impediment to the freedom to provide services under Article 49 EC.

  • ECJ denied that there was a justification defence here. 

ECJ

The freedom to provide services may be limited only by rules which are justified by imperative reasons relating to the public interest and which apply to all persons or undertakings pursuing an activity in the State of destination, in so far as that interest is not protected by the rules to which the person providing the services is subject in the Member State in which he is established.

In particular, those requirements must be objectively necessary in order to ensure compliance with professional rules and to guarantee the protection of the recipient of services and they must not exceed what is necessary to attain those objectives.

• Sounds a lot like proportionality.

• Although here there is the legitimate objective of protecting consumers of legal advice, the restriction is unnecessary in the specific context in which Defendant operates and given the type of work Defendant does (doesn’t actually advise clients on what to do).