In its Judgment of 6 September 2012 in Joined Cases C‑422/11 P and C‑423/11 P - Prezes Urzędu Komunikacji Elektronicznej and Republic of Poland v European Commission, the Court of Justice of the EU (CJEU) has faced the tricky question of whether 'legal advisors' are qualified to represent clients before the EU Courts on equal footing with 'lawyers'.
In some Member States this discussion can be moot, since there is no distinction between 'legal advisors' and 'lawyers' (and all legal professionals must belong to the same bar, and are usually considered lawyers regardless of their actual role or of whether they ever appear in court). However, in countries where there is a distinction between both professions (such as in Poland or Denmark), or where there is a similar distinction under other names (such as the distinction between barristers and solicitors in the UK, although it is growing increasingly diffuminated), this issue may be highly relevant.
In the case at hand, a Polish entity was represented before the European General Court by its in-house legal advisors (not lawyers), which had an employment relationship with the entity. The GC considered that this fell short from the requirement in Article 19 of the Statute of the Court of Justice of the European Union of being represented by a 'lawyer' and, consequently, dismissed the action as inadmissible.
In view of the GC, it was irrelevant that the professionals where formally qualified as 'legal advisors' rather than 'lawyers', but the disqualifying circumstance for them to represent the entity lied in 'the existence of a subordinate relationship within the [entity] – even if only to its Director General – when their sole function is to assist [it], [which] implies a degree of independence less than that of a legal adviser or a lawyer practising in a firm that is external to their client.' (GC Order in case T-226/10 Prezes Urzędu Komunikacji Elektronicznej v Commission, at para. 21, emphasis added).
The CJEU has concurred with the GC and has insisted on the basic elements of the profession of a 'lawyer' under EU Law. In my opinion, it is worth highligting that
23. [...] the conception of the lawyer’s role in the legal order of the European Union, which is derived from the legal traditions common to the Member States, and on which Article 19 of the Statute of the Court of Justice is based, is that of collaborating in the administration of justice and of being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs (see, to that effect, Case 155/79 AM & S Europe v Commission [1982] ECR 1575, paragraph 24; [Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others], paragraph 42; and [Joined Cases C-74/10 P and C-75/10 P EREF v Commission] , paragraph 52).
24. The requirement of independence of a lawyer implies that there must be no employment relationship between the lawyer and his client (see EREF v Commission, paragraph 53 and the case-law cited). As the General Court correctly held at paragraph 18 of the contested order, 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 (Akzo Nobel Chemicals and Akcros Chemicals v Commission, paragraph 45).
The CJEU also clarified that adopting this interpretation is not in breach of Member States' competences for the regulation of the legal professions--even if, indeed, in the absence of specific EU rules in the field, each Member State is free to regulate the exercise of the profession of lawyer in its territory and, therefore, the rules applicable to that profession may differ substantially from one Member State to another. The CJEU saved this obstacle by considering that
34. Although, as noted in paragraph 23 [...] the conception of the lawyer’s role in the legal order of the European Union derives from the legal traditions common to the Member States, in the context of disputes brought before the Courts of the European Union, that conception is implemented objectively and is necessarily independent from the national legal orders.
This generates a logic puzzle, since it is for Member States to determine who qualifies as a 'lawyer' under their national laws in the first instance, and generates a worrying pressure for potential reform in those Member States where some legal professionals face the difficulty of being qualified to represent clients under national law, but unable to appear before the EU Courts due to this additional independence requirement.
A different reading could be that, in view of the concept of 'lawyer' under EU Law, all legal professionals that do not meet the stated independence requirements should not be called 'lawyers' and, consequently, that all Member States may now face pressure to distinguish between 'lawyers' and 'legal advisors' in their domestic rules governing the legal professions.
Either way, in my view, the Judgment of the CJEU in Prezes Urzędu Komunikacji Elektronicznej can be seen as an uncomfortable reminder that the harmonisation of the rules governing the legal professions in the EU are still a pending item in the creation of a truly unified European Legal / Judicial Space, and that more efforts will be needed in this area in the coming years.
