Prezes Urzedu Komunikacji Elektronicznej (Electronic Communications Office) and Republic of Poland v European Commission C-422/11 and C-423/11
The European Court of Justice (“ECJ”) has upheld a decision of the General Court of the EU that in-house lawyers cannot represent their companies before the EU Courts.
On 14 May 2010, the Chairman of the Electronic Communications Office lodged an application with the Registry of the General Court seeking an annulment of the order made in Case T-226/10 Prezes Urzedu Komunikacji Elektronicznej v Commission  ECR I-0000 by which the court had dismissed as inadmissible an action for the annulment of Commission Decision C (2010) 1234 dated 3 March 2010. The application dated 14 May 2010 was signed by two individuals employed by the Director General of the Electronic Communications Office and who were acting in their capacity as legal advisers to the Chairman.
Article 19 of the Statute of the Court of Justice of the European Union requires companies appearing before the EU courts to be represented by a lawyer who is authorised to practise before a court of a Member State or another State which is a party to the Agreement on the European Economic Area.
In considering the application for annulment dated 14 May 2010, the General Court examined the admissibility of the application on the basis that the application should comply with Article 19 in that the Company should be represented by a duly authorised lawyer.
The General Court held that the application was inadmissible because it failed to comply with Article 19. The individuals who signed the application were in-house legal advisers and bound by a relationship of employment. Settled case law interprets ‘represented’ in Article 19 to require the assistance of an independent third party lawyer. The requirement to use a third party lawyer is based on a lawyer’s role in the administration of justice. In this regard, third party lawyers are independent, bound by professional ethical obligations and are not clouded by an employment relationship. The General Court noted that even if a clear distinction could be made between the employment of the two legal advisers by the Director General, as opposed to the Chairman, their sole function is to assist the Chairman which implied a degree of independence less than that of a lawyer practising in an external firm.
The ECJ upheld the General Court’s decision. The ECJ agreed with the General Court that a lawyer’s role is to assist in the administration of justice and where a lawyer is employed by the entity involved in the proceedings there is a risk that their independence and professional opinion would be influenced. The ECJ also held that Article 19 must, as far as possible, be interpreted without reference to national law.
The ECJ upheld the decision of Akzo Nobel v Commission that the concept of independence is determined not only positively by reference to professional ethical obligations but also negatively by the absence of an employment relationship.
This decision is of particular note to in-house lawyers who are intending to appear before the EU courts. Despite professional legal obligations applying to in-house lawyers, in-house lawyers do not hold the same status as private practice lawyers before the EU Courts.