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Trajan Shipley
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13th January 2022
Justice & Litigation

Court of Justice: Services Directive and EU primary law not applicable to disciplinary proceedings in case involving Warsaw Bar Association

The Court of Justice delivered its judgment today in Ministerstwo Sprawiedliwości (C-55/20), ruling that the Services Directive and Article 47 of the Charter do not apply to disciplinary proceedings against lawyers by Polish disciplinary bodies.

As previously reported on EU Law Live (here), the case stems from a request for a preliminary ruling from the Disciplinary Court of the Bar Association in Warsaw, Poland (Sąd Dyscyplinarny Izby Adwokackiej w Warszawie), in a dispute on procedural guarantees in national proceedings concerning the disciplinary liability of Polish advocates and foreign lawyers registered with a Bar Association. More specifically, the referring court was called on to solve a dispute concerning the decision by its Disciplinary Spokesperson to discontinue disciplinary proceedings against an advocate, R.G. 

These disciplinary proceedings concerned statements by R.G. on the hypothetical possibility of his client, Donald Tusk, former President of the European Council, being charged with a criminal offence. According to the National Public Prosecutor, those statements went beyond the limits of an advocate’s freedom of expression, could be construed as unlawful threats (that is, as a criminal offence), and constituted disciplinary misconduct.

The referring court had asked the Court of Justice, in essence, about (i) the applicability of the Services Directive 2006/123 to the case, which in turn would trigger the application of the Charter, and (ii) the compatibility of the national disciplinary proceedings at hand with Article 47 of the Charter.

In its judgment, the Court did not follow Advocate General Bobek’s Opinion. It first held, in justifying the admissibility of the request, that the Disciplinary Court of the Warsaw Bar Association satisfies the requirements of Article 267 TFEU, noting that its jurisdictional function is of a particularly specialised nature, given that they must ensure that the members of their professional body comply with the applicable ethical rules.

However, concerning the substance of the case, the Court held that the proceedings at issue could not lead to the imposition of a disciplinary sanction or a disbar, and that they are between a disciplinary officer and the Minister of Justice, the lawyer concerned not being, for his part, a member of the bar. In such circumstances, according to the Court, Article 10(6) of the Services Directive is not intended to apply, and thus it cannot lead to the applicability of Article 47 of the Charter.

The judgment is available here (not available in English at the time of publication).

An Op-Ed of the judgment by Piotr Bogdanowicz will be published soon in EU Law Live. 

 

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