The Court of Justice of the European Union ruled on Tuesday 4 February that the EU General Court erred in law by holding that the existence of a teaching contract between a party and its lawyer undermines the requirement of independence of the legal representative before the EU courts in a judgment (Joint Cases C-515/17 P C-51/17 P).
In June 2017, the General Court had ruled inadmissible the action brought by the University of Wrocław against decisions of the Research Executive Agency sanctioning it on the ground that its legal counsel did not satisfy the condition of independence required by the Statute of the Court (Article 19).
The Statute of the Court includes two separate and cumulative conditions concerning the representation of a party other than a Member State: – the requirement for such a party to be represented by a lawyer; – the requirement that the lawyer must be qualified to practise before a court of a Member State of the EU or the European Economic Area.
On appeals brought by the University of Wrocław and by Poland, the Court of Justice found in favour of the complainants, set aside the order made by the General Court and referred the case back to it.
According to the EU judge, in the absence of a reference to national law, the concept of lawyer must be interpreted autonomously and uniformly. Any party filing an appeal must use the services of a third party, specifically a lawyer.
In the specific context of Article 19 of the statute, the concept of ‘independence of the lawyer’, the Court points out, is defined not only negatively, that is to say, by the absence of an employment relationship, but also positively, by reference to professional discipline. Thus, the duty of independence incumbent on a lawyer is to be understood not as the lack of any connection whatsoever between the lawyer with his or her client, but rather as the absence of connections that manifestly impair the lawyer’s ability to carry out his or her defence mission in the best interests of the client.
In this respect, a lawyer is not sufficiently independent of the legal person they are representing, if they: – have significant administrative and financial powers within that legal person which place its function at a high executive level within that legal person such as to jeopardise their status as an independent third party; – hold senior management positions in the legal person they represent, or; – own shares in the company they represent and whose board of directors they chair.
However, in the Court’s view, the present case cannot be assimilated to the previous situations. A contract for teaching duties between a university and the lawyer representing it in an appeal before an EU court is insufficient to consider that the legal adviser is not in a position to defend his client’s interests to the best of their ability and with complete independence.
See the judgment: http://bit.ly/2ujHnQH
See the Statute of the Court of Justice: http://bit.ly/3bevZGK (Original version in French by Mathieu Bion)