Lawyers' duty of independence under EU law
Earlier this year, the Court of Justice of the European Union considered how closely connected a lawyer may be to a legal person and still represent that person in disputes before EU courts. In the specific judgment, the CJEU set aside an order by the General Court in which the General Court had decline to hear a case because a Polish university was represented by a representative who was a lecturer at that university.
CJEU judgment of 4 February 2020 in Joined Cases C-515/17P and C-561/17 P, Uniwersytet Wroclawski
Background
The case concerned the University of Wroclaw in Poland, which in connection with a research programme concluded a grant agreement with the Research Executive Agency (REA). The REA subsequently cancelled the agreement and sent the university three debit notes on the grounds that the university had failed to honour the terms of the agreement. The university brought an action seeking annulment of the termination and of the repayment obligation.
The General Court declined to hear the case, on the grounds that the university’s representative in the case (who in accordance with Polish law was not a lawyer but a so-called "legal adviser") was a lecturer at the university. The General Court thus found that the representative was not independent pursuant to Article 19 of the Statute of the Court of Justice of the European Union (also applicable to the General Court) because said representative was a lecturer at the university.
The decision of the CJEU
The CJEU noted generally that the objective of a lawyer’s task of representation is to protect and defend the client’s inter-ests to the greatest possible extent, acting in full independence and in line with the law and professional rules and codes of conduct. The CJEU emphasised that the concept of the independence of lawyers is determined not only negatively ‒ by the absence of an employment relationship ‒ but also positively, by reference to professional ethical obligations. Therefore, the lawyer’s duty of independence is to be understood not as the absence of any connection between the lawyer and their client, but the absence of connections which have a manifestly detrimental effect on the lawyer’s capacity to carry out the task of defending their client while acting in that client’s interests to the greatest possible extent.
The CJEU further observed that a lawyer is not sufficiently independent from their client if that lawyer has been granted extensive administrative and financial powers which place their function at a high executive level within the legal person they are representing. By way of example, the CJEU observed that a lawyer cannot be said to be independent if holding a high-level management position (e.g. chairman of the board of directors) or shares in the legal person they are representing.
The CJEU did not find that the representative’s connection was such as to be manifestly detrimental effect on his capacity to defend his client’s interests to the greatest possible extent, in full independence. The CJEU therefore cancelled the decision of the General Court and referred the case back to that court.
Conclusion: A case-by-case assessment
The judgment does not change the fact that the question of whether a lawyer may represent an undertaking in a case before the General Court and/or the CJEU will also be decided on a case-by-case assessment. The requirement of independence, however, must always be met. The judgment of the CJEU seems to indicate a pragmatic, less formalistic approach to the assessment.
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