The General Court of the European Union has upheld the prohibition on providing legal advisory services to the government and legal entities established in Russia, as a sanction taken by the EU since the Russian military aggression against Ukraine at the end of February 2022 (joined cases T-797/22, T-798/22 and T-828/22).
In Belgium, the Dutch Bar Association at the Brussels Bar, Belgian lawyers, the Paris Bar Association and ‘Avocats Ensemble’ (ACE) are calling for the prohibition to be lifted. In their view, it would violate fundamental rights guaranteeing access to legal advice from a lawyer, lawyer-client privilege, the duty of independence of lawyers, the values of the Rule of law and the principles of proportionality and legal certainty.
In its judgment, the General Court points out that everyone has the right to effective judicial protection, which includes the right to be advised and represented by a lawyer, as recognised by the EU Charter of Fundamental Rights.
However, the General Court ruled that this right was not called into question by the disputed measure. It notes that the prohibition does not apply to legal advisory services provided in connection with judicial, administrative or arbitral proceedings. Nor does it apply to legal advice provided to individuals.
In addition, there are provisions allowing the competent authorities to lift the prohibition in specifically identified situations, with a margin of discretion as to how a request for exemption should be formulated, lodged and processed. According to the General Court, these derogations do not in themselves entail any interference with the protection of lawyers’ professional secrecy. However, the European Court of Justice has made it clear that Member States are obliged to ensure respect for the Charter of Fundamental Rights when defining the procedures for implementing the exemption procedures.
According to the General Court, the fundamental role of lawyers in respecting and defending the Rule of law may be subject to restrictions justified by general interest objectives pursued by the EU, provided that these do not undermine the very substance of the role entrusted to lawyers in a state governed by the Rule of law. And in conclusion, it notes that this is indeed the case with the prohibition in question, as delimited by the exception and exemption provisions.
See the General Court’s judgment: https://aeur.eu/f/don (Original version in French by Mathieu Bion)