What is a “lawyer” in EU courts and how “independent” should lawyers be?

We all think that we know what a lawyer is. At least we assume that we know. But you will realize how ignorant you are of this fact once you read AG Bobek’s Opinion in Uniwersytet Wrocławski (C-515/17 P and C-561/17 P).

What is a lawyer? That is the question behind this critical case, now awaiting a ruling of the Grand Chamber of the General Court. The case is a landmark for practising lawyers litigating in Union courts, because it touches upon the issue of lawyers’ independence, and the traditional limits introduced by the Statute and the Rules of Procedure that preclude corporate counsel, or any lawyer that relies on a labour contract with his or her client, from representing a party in the General Court.

The case at hand is quite telling. A Polish University, Uniwersytet Wrocławski, challenged a decision of the EU’s Research Executive Agency in a direct action at the General Court. The University hired a lawyer that happened to be one of its professors at the Faculty of Law. The General Court held the case inadmissible because the lawyer representing the applicant was not an independent counsel, as required by Article 19 of the Statute. According to the General Court, a lawyer is an official that collaborates in the administration of justice, who is required to provide, in full independence and in the overriding interests of the cause at issue, legal assistance as the client needs. The concept of the independence of lawyers is determined not only positively (by reference to professional, ethical obligations) but also negatively (by the absence of an employment relationship). Thus, a hired employee by Uniwersytet Wrocławski could not represent it in court and the application was therefore declared inadmissible.

The case has been quite rightly sent to the Grand Chamber of the Court of Justice. There are good grounds that justify that decision. First, Article 19 of the Statute makes no reference whatsoever to the independence of a party’s counsel. Nor does Article 51 of the Rules of Procedure of the General. This is a criterion developed in the rather obscure case-law of both courts, practically concealed in the magma of non-translated and unpublished Orders. Not even the General Court’s practical instructions available online make a reference to such requirement. Second, the case touches on a key issue of the functioning of the courts: what is a lawyer and what degree of independence is expected from him or her, particularly in an industry that is rapidly changing and departing from its traditional way of providing services?

In his Opinion, AG Bobek proposes a radical reconsideration of the Union court’s traditional stance on the issue. First, he proposes a restrictive interpretation of Article 19, together with an objective criterion that precludes the Court from making an intensive case-by-case analysis of the independence of each lawyer in each case. Second, he also invites the Court to review the traditional approach towards the effects of a breach of Article 19, which currently entails the inadmissibility of the application. The AG concludes, quite rightly, that such an outcome is disproportionate and the party should be able to remedy the breach within a reasonable time-limit.

The Opinion is smart and a pleasure to read, but I would highlight the passages devoted to the purpose and aims of legal representation. The General Court based its decision on the role of the lawyer as that of a collaborator of the court, who is called upon to provide, in the overriding interests of justice, such legal assistance as the client needs. Thus, a lawyer is portrayed as acting primarily in the public, general interest of justice, with that interest prevailing over the private one. The Advocate General rejects this conception of the lawyer as a sort of agent of the courts and concludes that the role of the lawyer is private, as it responds to the interest of his or her clients. It is a service performed in the exchange of remuneration, with the feature that it is subject to a series of deontological duties. However, the lawyer is no collaborator of the court. I agree.

Also, the Opinion rejects the broad interpretation provided by the Court of Justice on the scope of in-house lawyers in the case of Akzo Nobel, a landmark ruling that dealt with the confidentiality of internal communications between an undertaking and its lawyers in the context of competition procedures. The AG argues with force that the background and precedent of the Akzo Nobel case-law cannot be used as a template to interpret Article 19 of the Statute, considering the aims and subject-matter of this provision, which deals in no way whatsoever with issues of confidentiality in EU competition procedures.

Finally, in order to solve the case at hand, the Opinion invites the Court to focus on the issue of employed lawyers from the perspective of their position as a third party, not from the angle of independence. As a result, he proposes the Court to reject representation by employed lawyers “who provide legal representation to his employer on the basis of an employment contract and thus finds himself in a relationship of subordination with regard to the provision of such legal services”. Therefore, the employment contract must be devoted to the provision of legal services, which was not the case of the University of Wrocław’s lawyer, whose employment contract was for the provision of services in education, not legal services.

The Opinion thus strikes a balance that leaves corporate lawyers outside the scope of Article 19, but allows other employees, not hired on their condition of lawyers, to perform as lawyers if they are specifically hired to that effect in parallel to the other tasks they perform for the legal person. That will only be possible in those countries in which a lawyer can be admitted to the bar and simultaneously perform other tasks (for example, a civil servant working for a public University that is admitted to the bar under the rules of the national bar association).

My only objection to the Opinion concerns the way in which it compares the case of lawyers in direct actions (at the General Court, mostly) with their participation in preliminary references (at the Court of Justice, exclusively). As is known, Union courts impose no restriction on lawyers to intervene in preliminary references, as long as they are authorized to represent the party in the main proceedings. Therefore, if corporate lawyers are authorized under national law to represent their clients in national courts, they will be able to represent their clients before the Court of Justice if a reference for a preliminary ruling is requested by the national court. This asymmetry strikes me as very odd. The rigid stance in direct actions suddenly becomes total flexibility in a key procedure such as the preliminary reference procedure, which consumes more than half of the Court of Justice’s annual workload. The Opinion argues that preliminary references are too specific to serve as a template, but I think that this contrast is way too bizarre to stand the course of time.

The Opinion in Uniwersytet Wrocławski is yet another example of how key procedural issues are coming back over and over again. It is also a lesson on the role of lawyers and the performance of their tasks (and duties). And irrespective of whether the Court decides to go in one direction or the other, the case has provided, at last, some clarity in a field that needed it badly.