In a recent case, the Court of Justice of the European Union (CJEU) ruled that parties involved in litigation before the CJEU and the General Court must be represented by independent lawyers, and that in-house lawyers could not be considered independent.

The case involved an application to the General Court by a Polish Electronic Communications Office (PEC) seeking an annulment of a Commission decision. The application was signed by two legal advisers who were employed by PEC and, because of this, the application was declared inadmissible by the General Court. PEC appealed this ruling to the CJEU.

The CJEU focussed on the independence of in-house lawyers. In particular, the Court looked at the provision under EU law requiring parties before European courts to be represented by an authorised lawyer, and interpreted the term “represented” as meaning represented by an independent lawyer. The CJEU considered that the relationship between in-house lawyers and their employers could influence the former’s professional opinion. Factors not applicable to external lawyers, such as economic dependence and close personal ties, could influence in-house lawyers.

This case follows a previous CJEU Judgment which confirmed that internal communications by employees with in-house lawyers are not legally privileged in competition law investigations by the European Commission.

Comment

This decision is a further example of the European courts treating in-house lawyers differently to private-practice lawyers despite the same professional obligations applying to both. Ironically, lawyers working in the Commission’s legal service regularly represent their employer in cases before the CJEU or the General Court.