The role of an in-house lawyer is to give legal advice to the company they work for but should they be allowed to represent that company in court?
The case of Prezes Urzedu Komunikacji Elektronicznej (Electronic Communications Office) v European Commission (C-422/11) concerned the interpretation of Article 19 of the Statute of the Court of Justice. This article concerns the representation of a party before the court and provides that a party "must be represented by a lawyer" authorised to practice before a court of a member state.
The facts of the case were simple. An application to the court on behalf of the Electronic Communications Office was signed by two legal advisers. The problem was that they were both employed by the Electronic Communications Office and, because of this, the application was rejected.
The court held that the phrase "must be represented by a lawyer" meant that a party must use an independent third party lawyer. The court explained that there was a risk that the professional opinion of an in-house lawyer would be influenced by their own working environment and they were therefore not independent.
The court held that "[t]he requirement of independence of a lawyer implies that there must be no employment relationship between the lawyer and his client ...the concept of the independence of lawyers is determined not only positively, that is by reference to professional ethical obligations, but also negatively, that is to say, by the absence of an employment relationship."
It was observed by the appellants in this case that in-house lawyers are able to appear before the courts of member states. In response the court held that every lawyer entitled to practise before a court of a Member State should not automatically be allowed to appear before the courts of the European Union. The Statute of the Court of Justice should be looked at without reference to the law of member states.
Some believe that the decision curtails the rights of in-house lawyers and suggests that in-house lawyers should not have the same rights as other lawyers. They suggest that the court has to date only excluded representations when a lawyer was in effect representing himself, or when he was representing a legal entity, of which he was a director, official or trustee.
This case illustrates the European Court's intention to limit the role of in-house lawyers further. The Court has previously held that legal privilege does not extend to communications between in-house lawyers and their employers and it's perhaps not surprising that the Court has extended its reasoning beyond privilege. However, the reasoning of the Court does not take into account the fact that in-house lawyers are regulated in the same way as those in private practice. A further problem with the Court's reasoning is that the Statute allows the institutions of the European Union to be represented by their in-house lawyers. The rationale for this distinction is not entirely clear.