One of my first posts introduced readers to Germany’s most exclusive bar: the lawyers exclusively admitted to the Federal Supreme Court (Bundesgerichtshof) in civil matters. It was election time again, and the Federal Ministry of Justice has announced eight new supreme court lawyers (Rechtsanwälte beim BGH). Prior to this year’s appointments, the bar comprised 37 lawyers. As it has become customary, I am inclined to say, this round of appointments also triggered legal challenges to the election process, and ultimately to the monopoly that the supreme court lawyers enjoy.
Amongst the appointees are Hildegard Ziemons, partner with CMS in Frankfurt, Christian Rohnke of White & Case, and Peter Wessels of Baker & McKenzie. I have not done any research into this, but my gut feeling is that is a unusually high percentage of appointees from international law firms. Three appointees were previously with smaller firms, and two were previously employed by Supreme Court lawyers (wissenschaftliche Mitarbeiter).
The legal challenges are mainly relying on two arguments: First, it is argued that barriers to entry to this segment of the profession are not justifiable. The arguments made in its support fail to meet the high threshold that any restriction on the occupational freedom (Berufsfreiheit), one of the basic freedoms under Art. 12 of the Basic Law (Grundgesetz), the German constitution, must meet. Secondly, the process is challenged for its lack of transparency and its inherent conflict of interest: New members of the bar are elected by a commission which consists of the president of the Federal Supreme Court, the presiding judges of the civil law senates (Vorsitzende der Zivilsenate) as well as members of the council of the German Federal Bar and the Supreme Court Bar (Mitglieder der Präsidien der Bundesrechtsanwaltskammer und der Rechtsanwaltskammer beim Bundesgerichtshof). The commission assesses the number of new appointees required, vets all applicants and proposes a list of twice as many applicants to the Ministry of Justice, which ranks the applicants. The Ministry tends to appoint the suggested number of applicants, and tends to pick those ranked in the upper half of the list.
Just before this year’s appointments were announced, the Federal Supreme Court had denied applications for injunctive relief (docket no. AnwZ 2/13, 4/13 and 5/13) with had sought to stop the appointments. The court did refuse these applications on procedural grounds, and did not address any substantive issues.
LTO published an interview with Volker Römermann, one of the rebels who is challenging the appointments in court, earlier this week, which sets out the critique of the process. Römermann had represented unsuccessful applicants in previous rounds and this time had applied himself. He points out that he has been arguing cases in the Federal Supreme Court for more than 15 years, before the specialized bench dealing with professional rules and conduct of the German bar (Anwaltssenat), where the restrictions on the rights of audience do not apply. The current practice however was upheld in a ruling of the Federal Constitutional Court (Bundesverfassungsgericht) as recently as 2008. So I would not put my money on a change of jurisprudence, but who knows…