In joined cases C-422/11 P and C-423/11 P, Prezes Urzędu Komunikacji Elektronicznej v Commission, the Court of Justice of the European Union (CJEU) has affirmed its previous view that inhouse lawyers are not entitled to represent their employers before the European courts.
On 14 May 2010, the Chairman of the Polish Electronic Communications Office (ECO), a governmental agency, applied to the European Union General Court (GC) to have a decision of the European Commission annulled. The ECO was represented by two of its in-house lawyers. In the context of case management, the GC queried the employment status of these lawyers. The GC concluded that, as employees of the ECO, the in-house lawyers were not entitled to represent the ECO before the GC under Article 19 of the Statue of the Court of Justice. This decision was appealed to the CJEU.
It is settled case law that parties are entitled to be represented before the European courts only by third persons authorised to practice before a court of a Member State (or European Economic Union Member State). This, as was found in EREF v Commission T-94/07, is based on the view of a lawyer’s role as collaborating in the administration of justice.
The Chairman of the ECO argued that there was no direct employment relationship between his role and the in-house lawyers, as the in-house lawyers were responsible to the Director General of the ECO. Nevertheless, the CJEU considered that the independence of a legal advisor can be assessed both positively, by reference to professional ethics standards, and negatively, by reference to the absence of an employment relationship. The CJEU noted that the interests of the Chairman are largely the same as the ECO’s interests, and the ECO’s arguments were rejected accordingly.
Finally, the CJEU addressed the ECO’s arguments in relation to the fact that its in-house lawyers were entitled to represent the ECO before the Polish courts. On this basis, the ECO argued that the CJEU had no justification for denying their rights of audience before the European courts. On this point, the CJEU considered that representation before the European courts should be interpreted independently, without reference to national law.
This decision should come as no surprise, confirming, as it does, a well-established principle that in-house lawyers cannot represent their employers before the European courts. The CJEU has adopted a strict approach to this rule, noting in its decision that lawyers employed by an entity connected to the party they wish to represent before the European courts are also caught by the prohibition.