The Court of Justice of the European Union (ECJ) has ruled that in-house lawyers cannot represent their client companies in proceedings before the EU courts (i.e. the ECJ and the General Court, previously known as the Court of First Instance): Prezes Urzedu Komunikacji Elekronicznej and Republic of Poland v European Commission C-422/11 and C-423/11.
The rules applicable to the EU courts provide that parties other than Member States and institutions of the EU must be represented by a lawyer who is authorised to practise before a court of an EU or EEA member state.
The Polish Electronic Communications Office (UKE) lodged an application with the General Court seeking annulment of a Commission decision. The General Court declared the application inadmissible on the grounds that the legal advisers who had signed the application on the UKE’s behalf were employed by the UKE.
The ECJ dismissed an appeal against this decision. It agreed with the General Court that a lawyer’s role in the EU legal system is one of “collaborating in the administration of justice” and providing legal assistance “in full independence and in the overriding interests of that cause”. Referring to previous authority including the well-known Akzo Nobel decision (in which the ECJ confirmed that communications with in-house lawyers are not subject to legal professional privilege under EU law – see post) the court held that this requirement of independence is incompatible with an employment relationship.
This decision will no doubt come as a further disappointment to in-house lawyers, highlighting as it does the continued refusal of the ECJ to afford them equal status with lawyers in private practice, regardless of their shared professional and ethical obligations.
The ECJ dismissed as “irrelevant” the appellants’ arguments seeking to establish that an in-house lawyer acts with the same degree of independence in respect of his client as a lawyer in private practice. This was, it seems, on the somewhat circular basis that the concept of independence under EU law is determined not only positively, by reference to professional obligations, but also negatively, by the absence of an employment relationship.