Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 24 September 2019(1)

Joined Cases C‑515/17 P and C‑561/17 P

Uniwersytet Wrocławski

v

Research Executive Agency (REA) (C‑515/17 P)

and

Republic of Poland

v

Uniwersytet Wrocławski,

Research Executive Agency (REA) (C‑561/17 P)

(Appeal — Article 19 of the Statute of the Court of Justice of the European Union — Representation of non-privileged applicants in direct actions — Concept of a lawyer — Autonomous concept of EU law — Opportunity to remedy a defect in legal representation)

Table of contents

I. Introduction

II. Legal framework

III. The order under appeal

IV. The proceedings before the Court

V. Assessment

A. Genesis and current problems

1. The evolution of the case-law on the third paragraph of Article 19 of the Statute

(a) The competition law origins

(b) The ‘transfer’ of the requirement of independence to the third paragraph of Article 19 of the Statute

2. The problematic aspects of the ‘transfer’ and its procedural consequences

(a) The context

(b) The unclear nature of the test

(c) The consequences of non-compliance

B. The options and the variables

1. The options

(a) Fourth paragraph of Article 19 of the Statute

(b) Third paragraph of Article 19 of the Statute

2. The purpose of legal representation

C. A revised test

1. Substantive dimension

(a) Authorisation to practise before the national courts

(b) The status of lawyer — an independent third party in relation to the applicant

(1) A third party

(2) An independent party

2. Procedural dimension

D. The present case

VI. Costs

VII. Conclusion

I.      Introduction

1.        Who is entitled to represent a non-privileged applicant in a direct action before the Court of Justice of the European Union? Who is, as Article 19 of the Statute of the Court of Justice of the European Union puts it, ‘a lawyer authorised to practise before a court of a Member State’?

2.        Traditionally, the process of checking a lawyer’s formal qualifications, the appropriate certificates, and his or her authority to act on behalf of a given applicant rarely stepped into the (jurisprudential) limelight. The verification process took place quietly and uneventfully, as a routine task of the registries, with dedicated discussions on the matter being the preserve of true connoisseurs and aficionados of EU court procedure. That might have remained the case if the verification process, which is normally a formality, had not gradually mutated into something rather different.

3.        The Uniwersytet Wrocławski (University of Wrocław, Poland) filed an action before the General Court seeking to contest a decision adopted by the Research Executive Agency (REA) ordering the university to pay back certain funds previously granted to it.

4.        The action was declared inadmissible for lack of proper legal representation. (2) According to the General Court, the University of Wrocław’s legal representative did not satisfy the requirement of independence that attaches to the concept of a ‘lawyer’ within the meaning of the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union (‘the Statute’). Although qualified as a lawyer under Polish law and practising in a law firm, the representative was also teaching classes as an external lecturer at the University of Wrocław and had concluded a civil law contract with the university for that purpose. In the view of the General Court, the existence of that contract meant that the requirement of independent legal representation was not satisfied.

5.        In the context of the present appeal against that order, I shall invite the Court to carry out a two-fold reassessment of the case-law and practice of the General Court in this area. First, on the substance, the interpretation of the third paragraph of Article 19 of the Statute ought to be brought back within the confines of the reasonable and predictable. Second, and perhaps more importantly, a potential defect in legal representation should be viewed as a procedural shortcoming of an application, which must be properly brought to the attention of the applicant concerned, giving him the opportunity to remedy it.

II.    Legal framework

6.        Article 19 of the Statute provides as follows:

‘The Member States and the institutions of the Union shall be represented before the Court of Justice by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer.

The States, other than the Member States, which are parties to the Agreement on the European Economic Area and also the EFTA Surveillance Authority referred to in that Agreement shall be represented in same manner.

Other parties must be represented by a lawyer.

Only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Court.

Such agents, advisers and lawyers shall, when they appear before the Court, enjoy the rights and immunities necessary to the independent exercise of their duties, under conditions laid down in the Rules of Procedure.

As regards such advisers and lawyers who appear before it, the Court shall have the powers normally accorded to courts of law, under conditions laid down in the Rules of Procedure.’

7.        According to Article 53 of the Statute, ‘the procedure before the General Court shall be governed by Title III …’. That title includes Article 19 of the Statute.

8.        Article 51 of the Rules of Procedure of the General Court (‘the RPGC’) concerns the ‘Obligation to be represented’ in direct actions and reads as follows:

‘1.      A party must be represented by an agent or a lawyer in accordance with the provisions of Article 19 of the Statute.

2.      The lawyer representing or assisting a party must lodge at the Registry a certificate that he is authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement.

3.      Where the party represented by the lawyer is a legal person governed by private law, the lawyer must lodge at the Registry an authority to act given by that person.

4.      If the documents referred to in paragraphs 2 and 3 are not lodged, the Registrar shall prescribe a reasonable time limit within which the party concerned is to produce them. If the party concerned fails to produce the required documents within the time limit prescribed, the General Court shall decide whether the non-compliance with that procedural requirement renders the application or written pleadings formally inadmissible.’

III. The order under appeal

9.        On 25 March 2016, the University of Wrocław brought an action before the General Court seeking, first, the annulment of decisions of the REA terminating a grant agreement and obliging the University of Wrocław to make repayments in the amounts of EUR 36 508.37, EUR 58 031.38 and EUR 6 286.68 and to pay damages in the amount of EUR 5 803.14, and, second, the repayment by the REA of those amounts together with the accrued interest.

10.      In its defence, the REA raised an objection of inadmissibility based on five grounds. The first ground concerned the fact that the University of Wrocław’s legal representative did not satisfy the condition of independence required by the Statute and by the RPGC. According to the REA, this was because the University of Wrocław’s representative was an employee of one of the university’s research centres.

11.      In the order under appeal, (3) the General Court began by recalling that representatives of non-privileged applicants before the EU Courts must satisfy two conditions. The first condition requires that the representative is a ‘lawyer’. The second condition specifies that the lawyer must be ‘authorised to practise before a court of a Member State …’. While the second condition refers to national law, the first does not and must be interpreted, as far as possible, independently and without reference to national law. (4)

12.      The General Court further explained that the conception of the role of the lawyer in the legal order of the European Union, which emanates from the common legal traditions of the Member States upon which Article 19 of the Statute is based, is that of a lawyer collaborating in the administration of justice, who is required to provide, in full independence and in the overriding interests of the cause at issue, such legal assistance as the client needs. (5) The concept of the independence of lawyers is determined not only positively (by reference to professional ethical obligations) but also negatively (by the absence of an employment relationship). (6)

13.      Referring to Prezes Urzędu Komunikacji Elektronicznej, (7) the General Court held that even if the absence of a relationship of subordination between the University of Wrocław and its legal representative means that, formally speaking, there is no employment relationship, there is still a risk that the professional opinion of the legal representative might be influenced, at least in part, by his professional environment. (8)

14.      In the light of those arguments, the General Court declared the action manifestly inadmissible, basing its decision on the third and fourth paragraphs of Article 19 of the Statute and on Article 51(1) of the RPGC. (9)

IV.    The proceedings before the Court

15.      The order made by the General Court was appealed against by the University of Wrocław (C‑515/17 P) and by the Republic of Poland (C‑561/17 P).

16.      By a decision of 24 November 2017, the President of the Court of Justice joined both appeals.

17.      The appeal of the University of Wrocław relies on two grounds. It alleges, first, a breach of Article 19 of the Statute and, second, a breach of Article 119 of the RPGC. As regards the first ground, the University of Wrocław disagrees with the interpretation of Article 19 of the Statute according to which the existence of the contract between the University of Wrocław and its legal representative means that the requirement of independence cannot be satisfied. It submits that, even if the concept of independence is, in principle, to be interpreted in an autonomous manner, it is necessary to refer to national law in the present case. The contract at issue is not an employment contract and, under Polish law, cannot be considered as equivalent to such. A civil law contract, such as the one in the present case, is characterised by equality between the parties and the absence of a relationship of subordination. As regards the second ground, the University of Wrocław criticises the abstract nature of certain statements in the order under appeal and the lack of reference to the facts of the case. The University of Wrocław asks the Court to annul the order under appeal, to declare that the application before the General Court was duly filed and to order the REA to pay the costs.

18.      The appeal lodged by the Republic of Poland contains three grounds. That Member State considers, first, that the order under appeal breaches the third and fourth paragraphs of Article 19 of the Statute, second, that it breaches the principle of legal certainty and, third, that it breaches the obligation to state reasons. More specifically, the Republic of Poland suggests that the case-law according to which the existence of an employment relationship means that a lawyer cannot satisfy the independence requirement is fundamentally wrong. Moreover, the order under appeal goes beyond the limits of that case-law in applying it to the contract at issue. The Republic of Poland requests that the Court of Justice annul the order under appeal and refer the case back to the General Court. It also requests the Court to order the parties to the proceedings in Case C‑561/17 P to bear their own costs.

19.      Pursuant to the first paragraph of Article 40 of the Statute, the Czech Republic intervened in support of the orders sought by the respective appellants seeking the annulment of the order under appeal.

20.      By order of the President of the Court of 5 July 2018, the Krajowa Izba Radców Prawnych (National Chamber of Legal Advisers, Poland) was granted leave to intervene in support of the order sought by the Republic of Poland, namely the annulment of the order under appeal.

21.      In its response, the REA contests both appeals. It objects to the factual, repetitive, imprecise or novel nature of some of the statements made by the appellants. It recalls the autonomous character of the EU-law concept of a lawyer. The legal representative who represented the University of Wrocław in the proceedings that led to the order under appeal is dependent upon that university, if not financially, then from the point of view of his professional status.

22.      In its reply, the University of Wrocław disagrees with the characterisation of its arguments as factual and points out that its arguments focus on Article 19 of the Statute. It reiterates its argument that the earlier case-law has been applied in an excessively broad manner in the present case. Linking the independence requirement to the absence of an employment relationship breaches Article 19 of the Statute. The independence of its legal representative was ensured in two ways: by the applicable ethical rules and by his status as a university lecturer.

23.      In its reply, the Republic of Poland disagrees with the allegations of the REA that its arguments are of a factual nature. The Republic of Poland also argues that the interpretation of Article 19 of the Statute cannot ignore the common traditions of the Member States that do not exclude an employed lawyer from being independent. The concept of a lawyer should not be interpreted by reference to national law only, but the respective national laws and the guarantees of independence provided thereunder should be taken into account because EU law does not contain any rules in this respect. In the order under appeal, the General Court did not state that the legal representative concerned was not a third party vis-à-vis the applicant. It only concluded that he did not satisfy the requirement of independence. As regards the argument put forward by the REA concerning the advantage obtained by the legal representative in terms of his ‘status’ as a university lecturer, that allegation is purely abstract and unrelated to the factual or legal elements of the case.

24.      In its rejoinder with respect to both replies, the REA maintains that some facts stated in the appeal filed by the University of Wrocław are new, such as details about the legal representative’s earlier career, the fact that he had never provided legal advice on the funding at issue and the fact that legal representation was provided to the University of Wrocław under a contract concluded with a law firm in which the legal representative is a partner. The REA submits that the University of Wrocław suggests, incorrectly, that the interpretation of Article 19 of the Statute relies on the national rules. As regards the reply of the Republic of Poland, the REA maintains that some of the allegations are of a factual nature and that, in the order under appeal, the General Court correctly stated the reasons for its decision. As regards Article 19 of the Statute, the Republic of Poland does not explain how taking account of the respective national laws in this context differs from an interpretation based on that law.

25.      The REA also states in response to both interventions that the arguments contained therein are inadmissible, ineffective or unfounded.

26.      The University of Wrocław, the REA, the Republic of Poland, the Krajowa Izba Radców Prawnych (the National Chamber of Legal Advisers) and the Czech Republic presented oral argument during the hearing that took place on 11 June 2019.

V.      Assessment

27.      The first ground of appeal in Case C‑515/17 P and the first ground of appeal in Case C‑561/17 P allege, in essence, an incorrect interpretation of the third paragraph of Article 19 of the Statute.

28.      For the reasons outlined in this Opinion, I agree that those grounds are well founded. The order under appeal should therefore be annulled.

29.      Given my conclusion on the first ground of both appeals, I consider it unnecessary to examine the other grounds of appeal invoked by the appellants, which allege a breach of the obligation to state reasons and (as regards the Republic of Poland) of the principle of legal certainty. In my view, those grounds essentially concern the same problem that has been identified by the first ground of both appeals. They simply focus on particular elements or consequences of that problem. Indeed, if the test for assessing a lawyer’s independence is difficult to predict, the assessment in a given case is bound to raise issues of legal certainty. In a similar vein, if the test is convoluted, then the application of that test in the individual case is unlikely to satisfy the obligation to state reasons that will allow the non-privileged applicant to understand why his lawyer lacks independence and thus cannot appear before the EU Courts. That being the case, the alleged lack of certainty in the formulation and application of the test for independence is discussed further under the first ground of appeal in this Opinion.

30.      The discussion of the first ground of both appeals is structured as follows: I will start by examining the genesis of the current interpretation of the third paragraph of Article 19 of the Statute and identifying the problems to which that interpretation gives rise (A). I will then set out the options for a readjusted interpretation of the third and fourth paragraphs of Article 19 of the Statute, while recalling the underlying rationale behind legal representation, which should inspire that interpretation (B). I shall then go on to suggest a revised test under the third and fourth paragraphs of Article 19 of the Statute, including a readjustment of both the substance of those provisions and the procedural consequences attached to non-compliance (C). Finally, applying that understanding of the third and fourth paragraphs of Article 19 of the Statute to the present case, I am bound to conclude that the General Court indeed erred in its interpretation of those provisions (D).

A.      Genesis and current problems

31.      The concept of a lawyer in the case-law on the third paragraph of Article 19 of the Statute was not coined specifically for the purposes of interpreting that provision. Rather, it is the result of a ‘transfer’ of case-law from a different area of EU law and a different context (1). Gradually, that ‘transfer’, coupled with a lack of clarity as to the conditions to be applied and rather severe consequences of non-compliance, began to generate a number of problems (2).

1.      The evolution of the case-law on the third paragraph of Article 19 of the Statute

32.      Article 19 of the Statute provides that non-privileged applicants must be represented before the Courts of the European Union by a ‘lawyer’ (third paragraph) and that only ‘a lawyer authorised to practise before a court of a Member State may represent or assist a party before the Court’ (fourth paragraph).

33.      The meaning of the fourth paragraph has not given rise to particular problems. As might be expected, legal representatives have been found not to comply with that provision if they were not a member of a national bar, and thus not authorised to practise in a Member State. (10)

34.      However, when it comes to the interpretation of the third paragraph of Article 19 of the Statute, the case-law becomes complex.

35.      The concept of a ‘lawyer’ contained therein has been held to be an autonomous concept of EU law whose central and defining feature is, according to the case-law, ‘independence’. ‘Independence’ thus emerged as a condition that, although perhaps corresponding to the traditional characterisation of the profession of a lawyer, (11) is not stated, let alone explained, in the procedural rules of the EU Courts.

36.       The content of the concept of independence was first spelled out by the Court in order to define the documents that are protected by legal privilege in competition law investigations (a). Only later was it then ‘transferred’ to support a particular interpretation of the concept of a ‘lawyer’ for the purposes of the third paragraph of Article 19 of the Statute. That interpretation was then applied to a rather broad array of factual scenarios. In the process, the connection with the original rationale and purpose behind the concept of independence was lost (b).

(a)    The competition law origins

37.      In AM & S Europe, (12) the Court declared void the relevant provision of a decision of the European Commission, in as much as it required the applicant to produce certain documents considered to be covered by legal professional privilege. Interpreting the scope of the Commission’s investigative powers under Regulation No 17, (13) the Court held, in essence, that it must be interpreted as protecting the confidentiality of written communications between a lawyer and his client, ‘provided that, on the one hand, such communications are made for the purposes and in the interests of the client’s rights of defence and, on the other hand, they emanate from independent lawyers, that is to say, lawyers who are not bound to the client by a relationship of employment’. (14)

38.      The second of those conditions and the resulting distinction made between an internal (employed) and external (‘independent’) lawyer ‘is based on a conception of the lawyer’s role as collaborating in the administration of justice by the courts and as being required to provide, in full independence, and in the overriding interests of that cause, such legal assistance as the client needs. The counterpart of that protection lies in the rules of professional ethics and discipline which are laid down and enforced in the general interest by institutions endowed with the requisite powers for that purpose’. The Court added that such a conception ‘reflects the legal traditions common to the Member States and is also to be found in legal order of the Community, as is demonstrated by Article 17 of the Protocols on the Statutes of the Court of Justice of the EEC and the EAEC, and also by Article 20 of the Protocol on the Statute of the Court of Justice of the ECSC’. (15)

39.      The same reasoning was later applied in Akzo Nobel, another competition law case that concerned, among other issues, whether legal privilege should apply to two emails exchanged between the undertaking concerned and its in-house lawyer. (16) Again examining the independence of lawyers in order to define the scope of legal privilege, the Court distinguished between the positive and negative aspects of a lawyer’s independence, stating that that concept ‘is determined not only positively, that is by reference to professional ethical obligations, but also negatively, by the absence of an employment relationship. An in-house lawyer, despite his enrolment with a bar or law society and the professional ethical obligations to which he is, as a result, subject, does not enjoy the same degree of independence from his employer as a lawyer working in an external law firm does in relation to his client. Consequently, an in-house lawyer is less able to deal effectively with any conflicts between his professional obligations and the aims of his client’. (17)

40.      Thus, when it first emerged in AM & S Europe and Akzo Nobel, the requirement for a lawyer to be independent was used to define the scope of documents covered by legal privilege. For that purpose, the distinction between internal and external lawyers was introduced, thereby pushing the issue of employment contracts and the subordination inherent therein to the fore. The aim of that case-law was to set the limits to the Commission’s investigative powers and balance those powers against the need to safeguard the rights of undertakings in the context of competition law proceedings.

(b)    The ‘transfer’ of the requirement of independence to the third paragraph of Article 19 of the Statute

41.      Gradually, the requirements set out in the AM & S Europe and Akzo Nobel case-law began to be referred to and relied upon for the purpose of interpreting the third paragraph of Article 19 of the Statute. The case‑law on the third paragraph of Article 19 of the Statute is rather casuistic, but could perhaps be said to fall broadly into the following three categories.

42.      First, the obligation for non-privileged applicants to be represented precludes those applicants from representing themselves. (18)

43.      Second, the prohibition on self-representation was also confirmed in respect of legal persons in various situations in which the legal representative had specific links with the applicant. Due to those links, the legal representatives concerned were considered not to satisfy the condition of being a third party in relation to the applicant. Those links concerned the positions of manager; (19) director; (20) trustee; (21) president of the executive committee; (22) other functions at a ‘high executive level’; (23) and the holding of a 10% shareholding (24) in the applicant company.

44.      Third, legal representation has been found to be inadequate in cases where the legal representatives were employed by the applicant.

45.      More specifically, in Prezes Urzędu Komunikacji Elektronicznej,  referring, among other cases, to the AM & S Europe and Akzo Nobel case-law, the General Court stated that ‘the existence of a subordinate relationship’ between the legal representative and a party connected to the applicant ‘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’. (25)

46.      On appeal, the Court confirmed the decision of the General Court. In that context, a discussion arose as to whether the concept of a lawyer should be construed as an autonomous concept of EU law or by reference to national law (given the reference to national law in the fourth paragraph of Article 19 of the Statute). The Court rejected the latter option and explained that, by providing that only a lawyer entitled to practise before a court of a Member State may represent a party before the Court, the fourth paragraph of Article 19 of the Statute imposes a necessary condition that, however, is not a sufficient one. There is no automatic correlation between being entitled to practise before a court of a Member State and before the Courts of the European Union. The concept of a lawyer under the third paragraph of Article 19 of the Statute ‘is implemented objectively and is necessarily independent from the national legal orders’. (26)

47.      Similar to what was held in Akzo Nobel, in Prezes Urzędu Komunikacji Elektronicznej, the Court examined the incompatibility between a relationship of employment and the possibility of a legal representative acting before the EU Courts through the lens of the requirement of independence. (27)

48.      In a subsequent case, the General Court held that a lawyer and co-founder of a law firm could not be represented by another lawyer from that same firm. (28) The General Court explicitly rejected an allegation that this amounted to self-representation because the applicant was simply different from its legal representative. (29) The fact that the lawyer could not appear before the General Court instead flowed from his lack of independence and, more specifically, from the applicant’s effective control over the law firm of which the lawyer was a member.

49.      Finally, the present case appears to be positioned primarily within the third set of cases concerning lawyers employed by the applicant. However, it clearly pushes the logic underlying those cases a step further.

50.      Indeed, in the present case, the legal representative was not providing legal advice to the University of Wrocław as its employee. The legal representative’s contract with the university had a different purpose, namely teaching. Nevertheless, the General Court concluded that the risk that the legal representative’s opinion might be influenced by his professional environment existed in those circumstances, even though there was no employment contract concerning the provision of legal services. (30)

2.      The problematic aspects of the ‘transfer’ and its procedural consequences

51.      It is true that both the case-law on legal privilege and the case-law on the fourth paragraph of Article 19 of the Statute examine the concept of ‘independence’. The problem is that, in each of those branches of the case-law, the concept of independence is used in quite a different context, and with a different aim and purpose. Therefore, making a simple textual transfer of that concept from one branch to the other becomes problematic (a). The test for assessing the independence of a lawyer and the conditions of legal representation of non-privileged applicants that have resulted from that transfer are not, in my view, an exemplar of clarity (b). That lack of clarity is even more serious in view of the severe consequences that non-compliance with those (unclear) criteria can have for non-privileged applicants (c).

(a)    The context

52.      EU law is not alone in developing by way of ‘jurisprudential transfers’. An idea or concept originally interpreted in one legislative or legal context may be transplanted into another context. There is nothing wrong with such a transfer, quite the contrary: it fosters predictability and the coherence of a legal system as a whole.

53.      However, any such transfer must make sense in the new environment. What will not suffice is automatic ‘textual copying’, whereby text is moved by way of cluster citations from one case to the next, without much consideration being given to the new context or purpose. Such an exercise is likely to create more problems than solutions.

54.      Against this background, I must admit that relying on the AM & S Europe and Akzo Nobel case-law as the key element for the interpretation of the third paragraph of Article 19 of the Statute seems problematic.

55.      As already outlined, (31) the AM & S Europe and Akzo Nobel case-law concerned the scope of legal privilege in EU competition law investigations. Within that specific context, the issue of internal versus external legal advice arose, which led to the question of employment contracts of lawyers and their independence, all with the purpose of positively preserving a certain space for privileged communication vis-à-vis the Commission. A balance was struck between, on the one hand, the need to protect the rights of undertakings vis-à-vis the Commission and its investigative powers and, on the other hand, the necessity for the Commission to be able to protect and enhance competition within the European Union. This led to embracing a certain definition of the ‘independence’ of a lawyer, adapted to that legislative context and purpose.

56.      However, can the balance thus reached within that specific context then be taken and turned into a general criterion for a lawyer’s independence in a different context, where different actors are present with different interests at stake, and ultimately be used, not to establish a space for privileged communication, but in fact to deprive non-privileged applicants of their access to the EU Courts?

57.      I do not think so. Starting with the rather obvious issue, the word ‘independence’ does not even feature in the third paragraph of Article 19 of the Statute. There is, however, an even deeper, structural problem: the concept of ‘independence’ in the AM & S Europe and Akzo Nobel case-law simply concerns a different subject matter than the third and fourth paragraphs of Article 19 of the Statute. The scope of the issues surrounding legal representation in the latter is incomparably broader than the mere question of the employment relationship of an in-house lawyer. The interpretation of the third and fourth paragraphs of Article 19 of the Statute should follow logically from the objective that underlies legal representation as such, and the broader considerations that characterise the profession of a lawyer. A lawyer’s conduct, including the decision whether to represent a party despite having specific links with that party, must not conflict with any of the obligations that the lawyer owes to the represented party whose interests he serves, but also to the courts before which he appears, and towards his fellow colleagues. (32)

58.       Moreover, the third and fourth paragraphs of Article 19 of the Statute can hardly be interpreted in isolation. They are complemented by professional rules defined in national legislation and by the self-regulated professional bodies. Although no such rules exist at EU level, as the Republic of Poland has rightly stressed, the EU Courts must be able to ensure (as any court of law must) that the necessary  standard is respected in proceedings before them, should any issue arise in this respect.

(b)    The unclear nature of the test

59.      The lack of clarity in the current test as applied by the General Court stems in part from the conceptual mismatch that arose from this transfer of case-law from one context to another. It is difficult to graft the narrow statements made concerning in-house legal counsel in the context of competition investigations onto the third and fourth paragraphs of Article 19 of the Statute, which are broader in scope and pursue a different purpose.

60.      To start with, the existing case-law interprets the term ‘lawyer’ in the third paragraph of Article 19 of the Statute through the prism of the concept of independence. But the meaning of that concept and the criteria to assess it remain unclear. This is particularly so given that several issues appear to have been subsumed under the heading of ‘independence’, including third-party status vis-à-vis the applicant. (33) By contrast, an issue that would conventionally be understood to fall under the concept of independence, namely the absence of external pressure, is virtually absent from the case‑law.

61.      There is also a lack of clarity in defining each of these categories. For example, cases where legal representatives held various corporate positions within the applicant were said to concern the issue of self-representation, while the situation of employed lawyers was to some extent, or even completely, detached from the issue of self-representation and considered under the heading of independence, which the lawyer was said to lack due to the influence of his professional environment on his professional opinion.

62.      Even if one were to accept that, in conceptual terms, all of these issues can properly be dealt with under the heading of ‘independence’, it is somewhat challenging to capture what exactly the rules currently are by examining individual cases. It remains unclear, for example, whether, in the case of legal persons, exclusion from the status of ‘lawyer’ can result from any participation in the corporate structure of an applicant or only from participation in the bodies exercising control (or other influence) over the applicant. Further, as regards employment relationships, it is unclear what underlying principles serve to differentiate the relationship between an in-house lawyer and his employer from the relationship between an attorney and his (potentially sole or main) client.

63.      The absence of clear criteria for assessing whether a legal representative complies with the third paragraph of Article 19 of the Statute leads to a lack of foreseeability for non-privileged applicants (and their legal representatives) (34) as to how that provision will be interpreted in view of the existence of some links between the applicant and his lawyer.

64.      I readily admit that the EU Courts inevitably deal with a large variety of factual situations when it comes to specific links that may exist between a legal representative and an applicant. In this respect, the General Court correctly insists on the fact that the independence of legal representatives must be assessed on a case-by-case basis. (35)

65.      However, it cannot be said that, because of the variety of potential factual situations, it is impossible to formulate a test in order to make the potential consequences of a choice of legal representative foreseeable to applicants.

66.      That the test and the criteria for its application are currently unforeseeable from the perspective of applicants is further supported by the fact that neither Article 19 of the Statute nor the other provisions of the Statute, nor the RPGC, set out how the concept of a ‘lawyer’ should be understood. A fortiori, those procedural rules say nothing about the conditions for independence. As the Republic of Poland rightly noted at the hearing, no such requirements and conditions are even mentioned in the practice directions to parties concerning cases brought before the Court. (36)

67.      If all that one is left with at this stage is the suggestion that any lawyer wishing to represent a client before the EU Courts is obliged to first navigate through bundles of unpublished procedural orders, available only in a limited number of languages, in order to ascertain what the current understanding of ‘independence’ might be, then I am bound to agree with the Republic of Poland that there is indeed an issue of foreseeability.

(c)    The consequences of non-compliance

68.      Finally, and perhaps most strikingly, at least in my view, is the consequence the General Court ascribes to non-compliance with the requirements of independent legal representation under the third paragraph of Article 19 of the Statute. The General Court considers, as it did in the present case, that the problem thus identified with the applicant’s legal representation is a non-remediable substantive defect in an application, which can only lead to the rejection of the application as manifestly inadmissible.

69.      Article 51(2) of the RPGC provides that ‘the lawyer representing or assisting a party must lodge at the Registry a certificate that he is authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement’.

70.      Should the applicant fail to lodge that document, Article 51(4) of the RPGC provides for a possibility for that failure to be rectified. Indeed that provision states that ‘the Registrar shall prescribe a reasonable time limit within which the party concerned is to produce [that document]. If the party concerned fails to produce [it] within the time limit prescribed, the General Court shall decide whether the non-compliance with that procedural requirement renders the application or written pleadings formally inadmissible’.

71.      It would appear that Article 51(4) of the RPGC is understood by the General Court as allowing only for rectification of the requirement under the fourth paragraph of Article 19 of the Statute concerning the entitlement of the lawyer to practise before the national courts. (37) In other words, it seems to be interpreted as allowing the applicant to provide evidence that his lawyer is in fact registered with a national bar where the relevant certificate has not been provided. It does not appear to be understood as entitling the applicant to be informed that there is an issue with his legal representation or to change his legal representative, should the General Court come to the conclusion that the legal representative cannot be considered to be a ‘lawyer’ under the third paragraph of Article 19 of the Statute.

72.      I must admit that I am somewhat puzzled by such a construction. I shall leave aside for the moment the question whether a problem with a party’s legal representation could ever be considered a substantive, non-remediable defect of an application (38) that would automatically lead to an effective sanction against the applicant itself (rather than, later, against the lawyer who might potentially have breached the rules of ethics). Nevertheless, the issue of such ‘applicant-friendly’ interpretation of the RPGC merits a mention.

73.      Codes of (judicial) procedure typically contain a list of serious, substantive defects in an application (such as the application being wholly incomprehensible; the subject matter of the application not being stated; not indicating the form of order sought; lacking basic evidence offered in support of the claim; etc.) that cannot be remedied and that would indeed render the application inadmissible. By contrast, any other potential issues with an application that are not of such gravity as to be on that list, typically those pertaining to procedural issues (the main text of the application or annexes not being presented in a given form or format; no evidence of the payment of court fees; aspects relating to legal representation; etc.) would then be considered as procedural and remediable following a notice to the party issued by the court in question.

74.      If access to a court is to be a right and not just a slogan, the interpretative maxim for navigating between those two types of defects would likely be the following: if it is not a substantive defect that is on the list of ‘non-remediable sins’, it ought to be remediable. If there is no such list, then what constitutes a non-remediable substantive defect should be interpreted restrictively, as including only serious problems that indeed prevent the application from being understood or processed properly.

75.      The interpretation embraced by the General Court appears to start from the opposite assumption: only those elements expressly mentioned in Article 51(4) of the RPGC and interpreted narrowly are remediable, anything else relating to representation apparently is not. Even more intriguingly, Article 51(4) of the RPGC relates to the requirements of the fourth paragraph of Article 19 of the Statute, which are clearly set out in the Statute. This means that failure to comply with relatively clearly stated requirements is remediable. By contrast, failure to comply with a requirement that is not explicitly laid down in the procedural rules, namely the ‘independent’ lawyer requirement under the third paragraph of Article 19 of the Statute, leads to the action being declared inadmissible, with the General Court insisting on the fact that a lack of independence on the part of a legal representative constitutes an absolute bar to the proceedings. (39)

76.      That interpretative result leaves the matter somewhere between a Franz Kafka novel and an odd paraphrase of a Game of Thrones prayer to the Drowned God. The (procedural) requirements that are clearly stated (and which one could therefore expect a reasonably diligent lawyer to comply with) are remediable, whereas the (equally procedural) requirements that are not clearly stated (and thus more difficult to expect even reasonably diligent lawyers to comply with), are not remediable. Indeed, what is hidden may never be remedied.

77.      To complete the picture, in the latter cases, no notice or warning is issued to the applicant before their application is declared inadmissible. The applicant thus does not have any opportunity to remedy the situation. In practical terms, the applicant — whose lawyer, relying on the national set of rules concerning proper representation in view of the fourth paragraph of Article 19 of the Statute, had little reason not to assume that he was entitled to represent his client — only receives, months or even years after all the deadlines have lapsed, an order declaring the application manifestly inadmissible, which naturally bars the applicant from ever pursuing the claim on the merits.

78.      In the light of that outcome, I cannot but agree with both interveners who suggest that the resulting scenario is at odds with the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the right of access to a court enshrined therein. I am therefore of the view that the approach to and the interpretation of the third paragraph of Article 19 of the Statute should be considerably revised.

B.      The options and the variables

79.      Before suggesting how, in my view, the third and fourth paragraphs of Article 19 of the Statute ought to be (re)interpreted, two further preliminary issues need to be clarified. First, where should the requirements as to the status of a lawyer representing a non-privileged applicant before the EU Courts come from: national law, EU law, or both legal systems? (1) Next, in order to strike a proper balance between the interests involved when interpreting those provisions, it is necessary to recall the rationale behind the rules and requirements of legal representation (2).

1.      The options

80.      Two types of issues need to be addressed by the EU Courts when faced with the question whether a specific legal representative meets the standards of Article 19 of the Statute.

81.      First, they have to verify the somewhat formal and general requirement under the fourth paragraph of that provision, namely the authorisation to practise before a court of a Member State (or of a State party to the EEA Agreement). Is the legal representative in question entitled to represent clients in such types of cases under national law?

82.      Second, there is the need to verify that the representative, who is entitled in general to represent clients under national law, is also entitled to represent the individual client in the particular case. This is a different type of examination, focusing on the circumstances of the individual case. Do any problematic issues arise in the context of the given case in view not only of the identities of the representative and the client, and their mutual relationship, but also of their relationships with other parties or the subject matter of the dispute?

83.      With regard to both types of assessment, which legal orders should provide the applicable rules? There are, at least in theory, three possible options.

84.      First, it could be suggested that the rules for both the general and the case-specific aspects of a lawyer’s ability to represent an applicant should be drawn from the rules of the given Member State. In such a scenario, the third and fourth paragraphs of Article 19 of the Statute would be read together, with the reference to national law in the fourth paragraph being understood as clarifying the concept of the ‘lawyer’ appearing in the third paragraph.

85.      Second, it could be suggested that both sets of rules are based on autonomous concepts of EU law. After all, in direct actions, they concern procedure before the EU Courts, not before national ones. The fourth paragraph of Article 19 of the Statute would then be construed very narrowly, as only referring to the appropriate certificates and evidence to be produced to demonstrate that a particular legal representative is allowed to practise before the national courts. But all the other applicable rules, including the professional rules, would be solely of autonomous EU origin.

86.      Third, the third and fourth paragraphs of Article 19 of the Statute could be interpreted in the light of both national and EU rules. The fourth paragraph of Article 19 would be understood as a reference to national law. The third paragraph would then constitute an EU-autonomous, but rather minimalist, safeguard for the assessment of the appropriateness of legal representation in the individual case.

(a)    Fourth paragraph of Article 19 of the Statute

87.      Unless the fourth paragraph of Article 19 of the Statute, which contains an unequivocal reference to authorisation to practise before a court of a Member State, is to be deprived of any content, the second option just outlined simply cannot be embraced. The fourth paragraph of Article 19 clearly refers to national law, which is not disputed in the present case. Thus, the general ability of a legal representative to represent a party before the courts has to be determined with regard to the applicable rules at the relevant Member State level.

88.      That immediately triggers the question as to the applicable professional rules.

89.      I am of the view that the respective national and professional rules naturally continue to apply even in proceedings before the EU Courts. Lawyers admitted to the bar in a Member State do not escape the application of such national rules by the mere fact that they plead before the EU Courts. However, (non-)compliance with those rules is a matter ultimately and subsequently to be assessed by the competent national (professional) bodies, should an issue arise in this respect.

90.      Having ruled out the second option, what then of the first and third options? That answer requires turning to the text and the logic of the third paragraph of Article 19 of the Statute, which is a more complex issue.

(b)    Third paragraph of Article 19 of the Statute

91.      Under the first option, the reference to national law in the fourth paragraph of Article 19 of the Statute also triggers the application of the respective national professional rules, which EU law cannot substitute, or at least, without which any EU-law limits cannot be construed. Thus, a decision on who should be entitled to represent non-privileged applicants before the EU Courts is a matter to be decided by reference to national rules.

92.      Bringing that suggestion to its full logical conclusion would mean that both the third and fourth paragraphs of Article 19 of the Statute would be interpreted as referring exclusively to national rules and practices. I agree that, at first glance, that solution is elegant and simple. On closer inspection, however, it raises a number of structural problems.

93.      First, the obligation to be represented is regulated differently in the different Member States. Moreover, even within a single Member State, rules may differ depending on the level of the specific judicial instance. Further waivers may be provided for by the national legislation or case-law. The fourth paragraph of Article 19 of the Statute only makes reference to ‘a court of a Member State’, without stating which ‘instance’ should constitute the correct yardstick: the national supreme court? Or any court, including first-instance courts, where litigants perhaps do not even need to be represented? (40)

94.      This lack of precision as to what is meant by ‘a court in a Member State’ is not an issue in the case of preliminary rulings, where, pursuant to Article 97(3) of the Rules of Procedure of the Court of Justice, the level of the court and the applicable rules are set by the referring court in question. Equally, also in contrast to the preliminary ruling procedure, in deciding upon a direct action of a non-privileged applicant, the EU Courts do not have any possibility to verify, with a given national court, whether the professional rules applicable to a given lawyer are satisfied. Nor does any cooperation procedure exist that would allow the EU Courts to consult the relevant national bar.

95.      Second, a pure and unqualified reference to national rules in direct actions would also mean that national rules would apply as far as the representation of various Member State bodies and entities that are considered as non-privileged applicants is concerned. However, such an outcome could conflict with the overall logic of Article 19 of the Statute, and in particular with its first paragraph. By that provision, it is rather clear that a distinction was intended to be drawn between privileged applicants (the Member States and the institutions of the Union) who can appoint an agent of their choice, and all the other non-privileged applicants, who cannot do so and ought to be represented by a third party. If unqualified reference were made, under the fourth paragraph of Article 19 of the Statute, to the rules of the Member States on representation, would it then be acceptable for other non-privileged applicants who are legal persons and who under national rules can represent themselves, to do so in direct actions before the EU Courts?

96.      The answer is clearly no, since it would have the effect of removing the distinction that the EU legislature wished to make between privileged and non-privileged applicants. From this point of view, whether or not, in the case of a non-privileged applicant, the chosen legal representative is a third party in relation to the applicant remains relevant. That distinction stems not from AM & S Europe and Akzo Nobel, (41) but rather from the contrast between the first and the third paragraphs of Article 19 of the Statute.

97.      Third, applying different standards in respect of applicants who bring the same or similar actions depending on the national ‘origin’ of their lawyers would subject those applicants to diverse conditions and treatment. Managing a system of 28 different regimes (or in fact more, in view of the existence of multiple bar associations and rules in a number of Member States) would thus not only pose a challenge for the EU Courts, but would above all pose problems for the equality of applicants.

98.      Fourth, a pure and unqualified reference only to national rules and practice would mean that, not only would the EU Courts be required to know and check the rules of all the national systems, but they would also be bound by their content. Would that also deprive the EU Courts of any, even residual, review of the content of those rules and how they are applied, including for direct actions before the EU Courts, where the case is not in fact being litigated before the national courts? What if the applicable national rules were to require too much (for example, by making it impossible for whatever reason for a lawyer, who on any reasonable construction of the professional rules would normally be entitled to appear, to represent a party in a given Member State), or too little?

99.      Fifth, and finally, that brings me to the (inappropriateness of the) analogy with the rules applicable to representation in the preliminary ruling procedure. It is true that Article 19 of the Statute applies to any proceedings before the Court of Justice. It is also true that Article 97(3) of the Rules of Procedure of the Court provides for a regime that is clearly based on an unqualified reference to the rules of representation in the national proceedings before the referring court.

100. That said, however, because of the clear structural and systemic differences between the preliminary ruling procedure and direct actions before the EU Courts, the special provisions for the preliminary ruling procedure are, if anything, relevant rather by contrast than by analogy. In contrast to the preliminary ruling procedure, where the rules and practice on representation are in the hands of the national court, in a direct action, an EU Court must be able to exercise residual review of the appropriateness of legal representation in the individual case brought directly before it, in particular as far as potential conflicts of interests are concerned.

101. All these considerations lead me to the conclusion that the proper interpretation of the third and fourth paragraphs of Article 19 of the Statute must involve a mixture of both regulatory layers: the general authorisation to practise should indeed be verified according to national rules and practice, whereas the absence of any issues compromising the quality of legal representation in the context of the individual case should be verified against the autonomous EU concept of what it means to be represented by a lawyer.

102. Before turning to the specific content of such a test, it is important to recall concisely the aims of that residual ‘quality control’ of legal representation and the interests that need to be taken into account.

2.      The purpose of legal representation

103. It is true that, in general, legal representation plays a crucial role in the sound administration of justice. Without proper legal representation, the applicant might not be able to put forward, and the judge take cognisance of, all the necessary arguments in the applicant’s favour. (42)

104. However, that is not the only aim and interest that legal representation of a client pursues. The primary aim of legal representation is to protect and defend the client’s interests, while of course remaining within the bounds of the legally and ethically permissible. Thus, the purpose of legal representation is to ensure that applicants’ interests are pursued to the greatest possible extent, thereby enabling applicants to exercise their right to an effective judicial remedy. (43)

105. In my view therefore, the primary interest pursued by legal representation is naturally a private one. In protecting the interests of private clients, the public interest in the sound administration of justice is also being served.

106. The order under appeal, in particular in paragraph 18, appears to start from a different assumption. The role of the lawyer is described as that of a collaborator of the court, who is called upon to provide, in the overriding interests of justice, such legal assistance as the client needs. (44) In setting out that vision of the function of legal representation, the General Court invokes common traditions of the Member States. Thus, a lawyer is portrayed as acting primarily in the public, general interest of justice, with that interest prevailing over the private one.

107. As the Czech Republic correctly puts forward, the way in which the General Court has characterised the role of the lawyer is based on a separation between the interests of the lawyer and of the client, which does not correspond to reality. Furthermore, from my knowledge of the practice in the Member States, I seriously doubt that such a vision reflects any common traditions of the Member States either.

108. Although one cannot but wish for lawyers to be romantic, selfless heroes who pursue the higher interests of justice, if need be against the wishes of their clients as well as the rest of the world, the reality is that legal representation is primarily a service. The provision of that regulated service must indeed comply with a number of conditions and standards, but that service is not rendered primarily in the overriding interests of justice, but in the interests of a particular client.

109. Next, comparative evidence would seem to confirm two things. First, various conditions would seem to justify intervening in the relationship between a lawyer and his client in the interest of the sound administration of justice. But, at a higher level of abstraction, two situations seem to be of particular relevance in that context: the absence of any external pressure brought to bear on the legal representative and the absence of any internal factors that would give rise to a conflict of interest between the lawyer and the client. (45) Should such a conflict arise, the lawyer will be precluded from providing his services in that specific case. (46)

110. Second, however, the practice in the Member States reveals that, even in such cases, judicial intervention seems to be minimal and only secondary. (47) That is because, first, each lawyer has a responsibility to assess whether representing a specific party may give rise to doubts as to his independence. It is his responsibility to refrain from providing legal advice if that is the case. Second, the legal profession is largely self-regulated and failure to respect the rules of the profession is a matter dealt with by the relevant disciplinary bodies.

111. Thus, if any common theme emerges from my (naturally limited) knowledge of the practice in the Member States, it is that legal representation is primarily a matter of private choice and (two-sided) contractual freedom. The client is free to choose his lawyer, and the lawyer is free, in principle, to choose his clients. (48) The relationship is based on trust. Any intervention in that relationship should be founded on serious reasons which reveal a clear and imperative need to ‘protect the applicant from his lawyer’. Moreover, if any problematic issues are detected, they are more properly dealt with by the respective regulatory bodies in disciplinary or other proceedings.

112. In sum, the suggestion in this section is that the rationale and the balance of interests that should inform the interpretation of the conditions flowing from the third and fourth paragraphs of Article 19 of the Statute is somewhat different from that embraced by the General Court. Legal representation is not chosen and then carried out primarily in the higher interest of justice and for the pleasure and assistance of a court, but in the interest of and following the choices made by the client. By default therefore that choice, even a bad choice, must be respected. It is only in exceptional circumstances that the public interest should be allowed to override that default private interest.

113. Otherwise, the normally minimalist judicial oversight in these matters — usually reserved to instances in which obvious defects in legal representation are clearly visible and are assumed to reach such gravity as to discredit the entire judicial process — would be replaced by scarcely foreseeable or justifiable judicial paternalism. This would lead to increasing interference in what should primarily be a private choice, in disregard of other equally valid interests and values that are also part of the overall equation, such as the freedom to choose one’s lawyer, continuity in legal representation, or the costs that a change of lawyer will necessarily trigger as the new lawyer will need extra time to familiarise himself with an ongoing case.

C.      A revised test

114. It is with those more general considerations in mind that I would suggest a readjustment to the way that the third and fourth paragraphs of Article 19 of the Statute have been interpreted and applied, as evidenced by the order under appeal. The reinterpretation has two dimensions: a substantive one (1) and a procedural one (2).

1.      Substantive dimension

115. The substantive dimension concerns the conditions for representing parties before a court of a Member State (a), as well as the two-fold condition that a lawyer must be independent and a third party, within the meaning of the third paragraph of Article 19 of the Statute (b).

(a)    Authorisation to practise before the national courts

116. The first step of the examination starts with the question whether the legal representative is qualified to practise before a court of a Member State (or a State party to the EEA Agreement), that is, whether he is a member of a national bar or other relevant professional body and entitled to practise. As I have noted above, (49) that verification is made by reference to the respective national laws and remains at the formal level (verifying the certificate).

117. As I have also noted, verification by the EU Courts of compliance with national law should stop there. It should not concern compliance with national professional rules. That task should be left to the national (professional) authorities, should any issues of non-compliance arise.

(b)    The status of lawyer — an independent third party in relation to the applicant

118. As a second step, the EU Courts should verify whether the legal representative constitutes a third party in relation to the applicant (1) and whether he meets the requirement of independence, that is, that there does not appear to be any external pressure on the representative or likelihood of a conflict of interest (2).

(1)    A third party

119. As regards the representative being a third party in relation to the applicant, that requirement, stemming from both the third and the fourth paragraphs of Article 19 of the Statute, should be understood as excluding legal representatives who are identical to the applicant.

120. In the case of natural persons, that condition seems to be self-explanatory. It also precludes self-representation by lawyers duly qualified and admitted to a national bar.

121. The fulfilment of that condition is less obvious as regards the representation of legal persons. If the third-party requirement is to have any meaning in that context, and in order to ensure a unified application of the rules on representation before the EU Courts, it would seem to me that it should be understood as precluding entities not covered by the first paragraph of Article 19 of the Statute from being represented by their employed lawyers in a given case. (50)

122.  That issue is, however, distinct from the question of independence, as spelled out in Akzo Nobel or, more recently, in Prezes Urzędu Komunikacji Elektronicznej. Rather, in the light of the specific system of legal representation before the EU Courts, the third-party requirement should be understood as an a contrario condition flowing from the explicitly recognised possibility for privileged applicants to represent themselves under the first and second paragraphs of Article 19 of the Statute. (51)

123. I acknowledge that the issue of employed lawyers could also be viewed through the lens of the lawyer’s independence. Indeed, it could be said that an employed lawyer is in a relationship of subordination, which affects his freedom of judgment and thus his legal advice. (52) An employed lawyer’s relationship to the represented party is not based on a contract concluded for the purpose of the proceedings, but on an employment (or similar) contract that also covers legal representation. The relationship is thus not the result of a choice on the part of the lawyer to represent that party in the proceedings, but a consequence of his employment contract.

124. There are, however, at least two good reasons why the issue of lawyers being employed by a legal person should properly be kept under the heading of third-party status and not independence.

125. First, the assessment of whether a natural person is an employee and thus part of a legal person or a third party acting on the latter’s behalf is primarily a structural, formal matter. If it were otherwise, and third-party status were made dependent on the degree of actual independence in decision-making, it would cease to be a formal matter and instead involve a substantive examination of (in)dependence. It would also cease to be foreseeable to external third parties, because they are unlikely to be privy to all the (internal) arrangements between the lawyer and the client, not to speak of the actual practice in those arrangements. Thus, while certain employed lawyers might enjoy a considerable degree of independence, such that they qualify as third parties in substantive terms, some (formally) third parties that are actually dependent on the legal person in economic or other terms would be treated as part of that legal person.

126. Applying that logic, would lawyers employed by a corporation that gives them full freedom in terms of how they advise and represent that corporation then suddenly become ‘independent lawyers’? Would an individual lawyer, duly admitted to a bar and practising in his own name, but having only one major client on whom he is effectively economically dependent, cease to be an ‘independent lawyer’ and be treated as ‘employed’?

127. It is precisely this type of conflation between the formal assessment of organisational status (third party) and the substantive examination of employment subordination (independence) that gives rise to unpredictability as to the criteria that are in fact applied under the current test. (53)

128. Second, that is perhaps also why, at national level, the issue of employed lawyers is generally (and, it appears, mainly) addressed under the heading of structural incompatibilities with the legal profession, rather than lack of independence in a specific case.

129. Different regimes exist in this respect in the different Member States. The assessment of the incompatibility between the exercise of the legal profession and employment can be viewed from two perspectives. First, it can concern whether or not it is possible to combine the exercise of the profession of lawyer (as a member of a bar or law society) with any other (employed) profession or public function. Second, it can concern whether a lawyer can exercise his profession (as a member of a bar or law society) only on an ‘independent’ (self-employed) basis or whether he can be employed as a lawyer (by other lawyers, by a firm or other association of lawyers, or by any other entity) without having to end his membership of the bar or law society. (54)

130. To give an example from the latter perspective, in Poland, the profession of legal counsel (radca prawny) at issue in the present case can be exercised both within a relationship of employment (55) and outside of such relationship. (56) Moreover, in some of the Member States, the respective roles of employed and ‘independent’ lawyers seem to evolve and be the subject of some discussion. (57)

131. I note that as regards employed lawyers from Member States where ‘independence’ and employed status are regarded as structurally incompatible, those lawyers will not satisfy the requirement of the fourth paragraph of Article 19 of the Statute. As for employed lawyers from Member States where no such incompatibility exists, their employed status is logically not considered an issue in their home jurisdiction.

132. However, to avoid confusion on the matter, as well as unnecessary interference with the national conception of the legal profession, (58) and for the sake of ensuring a level playing field before the EU Courts, I suggest approaching the issue of employed lawyers under the ‘third-party’ heading. Employed lawyers are excluded from representing non-privileged applicants because they do not meet the autonomous EU condition of being a third party in relation to the client and thus cannot ‘represent’ that party in the sense of the third and fourth paragraphs of Article 19 of the Statute.

133. Therefore, an employed lawyer, who provides legal representation to his employer on the basis of an employment contract and thus finds himself in a relationship of subordination with regard to the provision of such legal services, cannot be considered, for the purposes of the autonomous interpretation of the third paragraph of Article 19 of the Statute, as a ‘third party’ in relation to his client.

(2)    An independent party

134. Turning to the requirement of independence, its external aspect, namely the absence of any signs of external pressure from any other party being put on the lawyer, does not seem to have been at issue either in the present case, or in any of the previous cases.

135. I thus turn directly to the issue of the absence of internal pressure, that is, the absence of conflicts of interests.

136. That requirement should not be construed, in my view, and recalling again the variety of options existing at national level, as prohibiting lawyers from having any links with the applicant, but only such links as manifestly call into question the capacity of the lawyer to provide advice exclusively in the best interests of the client.

137. Those ‘disqualifying’ links should therefore only be of such a nature and degree as to make it obvious that the lawyer, even if formally a third party vis-à-vis the applicant, has economic or personal ties with either the subject matter of the dispute or one of the parties that give rise to a reasonable doubt about his capacity to genuinely defend the interests of his client and not his own or those of another person.

138. I readily acknowledge the great variety of potential factual scenarios, which makes it impossible to provide an exhaustive list of situations in which such abstractly formulated conflicts may arise. However, what is important at this stage is not what those situations might be, but rather how such potential conflicts of interests should be ascertained.

139. The identification of situations amounting to a conflict of interest should be carried out at the level of a reasonable hypothesis, but should be limited to cases of obvious or manifest conflicts.

140. The conflict of interest must be discernible as a reasonable (but duly reasoned) hypothesis, based on the given type of (present or past) relationship. At the same time, it must be obvious or manifest as regards that type of relationship, meaning that there is likely to be a consensus that, when such a type of relationship or link is present, the interests of the client and the lawyer are bound to collide.

141. However, in line with the general argument presented above, (59) cautioning against excessive interference by a court in the primarily private relationship between a client and his lawyer, it is not the role of a court to pre-emptively engage in speculation as to who might perhaps be influenced by whom and in what circumstances. Either the conflict is apparent and of such gravity as to prompt any court to override, in the interest of the sound administration of justice, a private choice of lawyer, or it is not, in which case any potential shortcomings should be settled later either in disciplinary proceedings against the lawyer who breached the code of ethics, or by a civil law action for damages brought by the client against his lawyer.

142. There are also practical arguments in favour of this interpretation and application of Article 19 of the Statute. An expansionist and pre-emptive approach to the requirement of independence only generates wrong incentives for litigation that serve little practical purpose. (60) Moreover, it also puts the legal representatives of non-privileged applicants in a rather difficult position: how could a legal representative or his client-applicant establish that there is no danger of any issues arising as a result of their choice of legal representative? How is one to prove, in practical terms, the absence of something in the future?

143. All these considerations lead me to suggest that the Court put the concept of the ‘independence of a lawyer’ under the third paragraph of Article 19 of the Statute back into proportion. First, that independence, both external and internal, is different from the concept of third-party status. Second, the internal dimension of that independence, that is, the absence of a conflict of interest in the particular case, should remain limited to cases of obvious and clearly discernible conflicts, which should be assessed with regard to experience of certain types of relationships where conflicts are bound to arise, but not pre-emptively assumed or extensively investigated by a court.

144. In summary, in order to comply with the third and fourth paragraphs of Article 19 of the Statute, an applicant must be represented by a lawyer who is duly authorised to practise before a national court of a Member State, as evidenced by the relevant certificate(s), and is a third party in relation to the applicant. In addition, the lawyer must not be precluded from acting in the context of the individual case either because of the existence of external pressure or by virtue of any other conflict of interest that is obviously discernible at the level of a reasonable hypothesis based on the given type of (present or past) relationship between the lawyer and the represented party.

2.      Procedural dimension

145. Finally, I turn to the procedural consequences of any potential shortcomings in the legal representation of non-privileged applicants under Article 19 of the Statute.

146. As already described above, the case-law of the General Court considers a lack of independence on the part of a legal representative under the third paragraph of Article 19 of the Statute to constitute a substantive, non-remediable defect in the application that leads to the rejection of the application as manifestly inadmissible. (61)

147. I must admit that of all the aspects of the present appeal, I consider this proposition to be the most problematic, for two reasons in particular.

148. First, in the case-law interpreting Article 19 of the Statute (including the order under appeal), (62) there are a number of references to the conditions governing legal representation of non-privileged applicants being derived from the common traditions of the Member States. However, when it comes to the procedural consequences of a failure by a lawyer to comply with his professional or ethical rules, in particular those relating to conflicts of interests, the national rules and practice (at least those that I am aware of) appear to stand in stark contrast to what is proclaimed to derive from them at EU level.

149. On the one hand, defects in legal representation tend to be viewed as procedural defects in the Member States, which are clearly remediable. (63) Thus, if any such problem is detected by the relevant court, that court notifies the applicant in question, asking him to remedy the situation, and advising him of the consequences that might follow if he does not comply.

150. On the other hand, there also appears to be a clear tendency in the Member States not to question, to the detriment of the client, the validity of procedural acts submitted to a court when there is a conflict of interest between the lawyer and the client. Again, following a notice from the court, the lawyer might be asked to cease to act, or the applicant might be asked to appoint a different lawyer. (64) However, I fail to find inspiration in the legal orders of the Member States for a practice whereby, in cases of perceived or real failures in terms of professional ethics, a court not only assumes the role of a ‘disciplinary chamber’ adopting immediate sanctions, but then imposes those sanctions not on the lawyer, but on the applicant, by declaring his application manifestly inadmissible.

151. Second, such interpretation and judicial practice are clearly not compliant, in my view, with the guarantees under the first paragraph of Article 47 of the Charter and, more specifically, access to justice and an effective judicial remedy. (65)

152. I therefore cannot agree with the interpretation and practice of the General Court, admittedly endorsed by this Court, (66) whereby a defect in the independent legal representation of an applicant is considered a non-remediable defect of the application.

153. I would instead suggest that potential defects in legal representation should be considered procedural shortcomings of the application that can be remedied. Furthermore, where an EU Court detects a defect in legal representation, it should inform the applicant accordingly in order to provide him with an opportunity to remedy the issue. I cannot embrace the position according to which, in such a situation, the EU Courts may simply declare the application manifestly inadmissible, which brings the case to its definitive end.

154. That would mean, in practical terms, that whenever the General Court detects potential non-compliance with the requirements that apply to the status of ‘lawyers’ within the meaning of the third and fourth paragraphs of Article 19 of the Statute, it has a duty to inform the applicant accordingly, in line with Article 51(4) of its Rules of Procedure. (67)

155. The production of ‘the required documents within the time limit prescribed’ referred to in that provision cannot be interpreted rigidly as referring only to documents concerning the lawyer’s membership of the national bar, while what appears to be the real underlying problem with the party’s legal representation, and the consequences that may follow if it is not remedied, are not identified and communicated to the party concerned, leaving that party to second-guess what the perceived problem might actually be. Such an interpretation would not only be very formal, not to say formalistic, but it would also disregard the logic of the incremental evolution of the rules of procedure of the EU Courts (68) and, above all, the basic guarantee of an effective right of access to a court. (69)

156. Thus, the request sent to a party under Article 51(4) of the RPGC must inform the applicant not only of any further documents that are required, but also of the reasons why those documents are being requested, spelling out any potential doubts that the court might entertain concerning that party’s legal representation. It must inform the applicant if a change in his legal representative is required and for what reason, while clearly stating what procedural consequences will follow if the notice is not acted upon. Moreover, as also stated in that provision, the Registrar should set a reasonable time limit within which the applicant can rectify the situation. Naturally, any such deadline set by the Registrar pursuant to Article 51(4) of the RPGC starts to run and lapses independently of the initial time limit for bringing the action.

157. Only if the party does not react accordingly within the prescribed time limit can the General Court proceed to decide whether that renders the application inadmissible under the second sentence of Article 51(4) of the RPGC. (70)

158. Finally, for the sake of completeness it might be recalled that any potential change in legal representative does not entitle the applicant to submit a new set of pleadings. Similar to the appointment of a new lawyer following the exclusion of an agent, adviser or lawyer from ongoing proceedings before the General Court, (71) the newly appointed lawyer must take over the brief as it stands at the given stage of the proceedings.

D.      The present case

159. Applying the test that I have suggested above (72) to the present case I note, first, that compliance with the requirement under the fourth paragraph of Article 19 of the Statute does not seem to be contested. The legal representative of the University of Wrocław in the proceedings that led to the order under appeal appears to be duly authorised to practise before the Polish courts.

160. Second, the applicant being a legal person, it is also uncontested that the legal representative did not act, in the proceedings before the General Court, as an employed lawyer of the University of Wrocław. He was therefore clearly a third party in relation to his client. Moreover, it is undisputed that the contract at issue between the lawyer and the University of Wrocław concerned teaching, not the provision of legal services before the General Court. Thus, independently of whether the teaching contract has put the legal representative in a position of subordination or dependence vis-à-vis the university, what matters is that the subject matter of that contract simply has nothing to do with legal representation in the proceedings in question.

161. Third, as regards the requirement of independence, I note that it has not been suggested that the legal representative had been subject to any form of external pressure. As regards a possible conflict of interest, it can be understood that the General Court assumed that such a conflict existed when it stated that the civil law contract between the legal representative and the University of Wrocław produced a risk that his professional opinion might be at least partly influenced by his professional environment. (73)

162. In view of my suggestions above in points 139 and 140 of this Opinion as to how the issue of conflicts of interests should be approached, I cannot agree with that proposition. The contract at issue concerned (apparently part-time) teaching of classes in international private law. Beyond the existence of that contract, as well as a former affiliation with the university (both as a student and later as a lecturer), no financial or other links between the University of Wrocław and the legal representative were revealed that could give rise to reasonable doubts as to whether the legal representative pursued any other interests than those of the University of Wrocław.

163. In those circumstances, the General Court erred in law when it interpreted the concept of a lawyer under the third paragraph of Article 19 of the Statute and, by the same token, under Article 51(1) of the RPGC, as suggesting that such a link could put the independence of the lawyer into question.

164. In the light of the above, I conclude that the first ground of appeal in Case C‑515/17 P and the first ground of appeal in Case C‑561/17 P are well founded. The order under appeal should be set aside.

VI.    Costs

165. Because I suggest that the case on appeal in Case C‑515/17 P be referred back to the General Court, the decision on the costs of the parties should be reserved.

166. As regards the case on appeal in Case C‑561/17 P, and having regard to Article 184(3) of the Rules of Procedure, I suggest that the Court order the parties to the proceedings to bear their own costs.

167. In accordance with Article 140(1) and (3) of the Rules of Procedure, read in conjunction with Article 184(1) thereof, the Czech Republic and the Krajowa Izba Radców Prawnych should bear their own costs.

VII. Conclusion

168. I suggest that the Court:

–        set aside the order of 13 June 2017, Uniwersytet Wrocławski v REA (T‑137/16, not published, EU:T:2017:407);

–        refer Case C‑515/17 P back to the General Court and order that the costs of the parties in that case be reserved;

–        order the parties in Case C‑561/17 P to bear their own costs;

–        order the Czech Republic and the Krajowa Izba Radców Prawnych to bear their own costs.

1      Original language: English.

2      Order of 13 June 2017, Uniwersytet Wrocławski v REAUniwersytet Wrocławski v REAUniwersytet Wrocławski v REA (T‑137/16, not published, EU:T:2017:407).

3      Order of 13 June 2017, Uniwersytet Wrocławski v REAUniwersytet Wrocławski v REAUniwersytet Wrocławski v REA (T‑137/16, not published, EU:T:2017:407).

4      Paragraphs 16 and 17 of the order under appeal.

5      Paragraph 18 of the order under appeal.

6      Paragraph 19 of the order under appeal.

7      Judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission (C‑422/11 P and C‑423/11 P, EU:C:2012:553).

8      Paragraph 20 of the order under appeal.

9      Paragraphs 21 and 22 of the order under appeal.

10      See, for example, order of the Court of 20 February 2008, Comunidad Autónoma de Valencia — Generalidad Valenciana v Commission (C‑363/06 P, not published, EU:C:2008:99) and orders of the General Court of 9 September 2004, Alto de Casablanca v OHIM — Bodegas Chivite (VERAMONTE)Alto de Casablanca v OHIM — Bodegas Chivite (VERAMONTE)Alto de Casablanca v OHIM — Bodegas Chivite (VERAMONTE)Alto de Casablanca v OHIM — Bodegas Chivite (VERAMONTE)Alto de Casablanca v OHIM — Bodegas Chivite (VERAMONTE) (T‑14/04, EU:T:2004:258, paragraph 11), and of 5 July 2006, Comunidad Autónoma de Valencia — Generalidad Valenciana v Commission (T‑357/05, EU:T:2006:188). See also orders of the General Court of 9 December 2013, Brown Brothers Harriman v OHIM (TRUST IN PARTNERSHIP) (T‑389/13, not published, EU:T:2013:691, paragraph 14), and of 14 November 2016, Neonart svetlobni in reklamni napisi Krevh v EUIPO (neonart) (T‑221/16, not published, EU:T:2016:673, paragraph 8).

11      See, for example, the Charter of core principles of the European legal profession & Code of conduct for European lawyers, Council of Bars & Law Societies of Europe, 2019. Article 2 concerns general principles that are ‘common to the national and international rules regulating the legal profession’ (see pp. 1 and 6). Independence is listed as first among them.

12      Judgment of 18 May 1982, AM & S Europe v Commission (155/79, EU:C:1982:157).

13      Council Regulation of 6 February 1962: First Regulation implementing Articles [101] and [102 TFEU] (OJ, English Special Edition 1959-1962, p. 87).

14      Judgment in AM & S Europe v Commission (155/79, EU:C:1982:157, paragraphs 21 and 22).

15      Ibidem, paragraph 24. Those provisions are the legal predecessors of the current Article 19 of the Statute. They contained slightly different wording and defined the legal representative allowed to represent non-privileged applicants before the Court simply as ‘an advocate member of the bar of one of the Member States’.

16      Judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:512, paragraph 28).

17      Judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v CommissionAkzo Nobel Chemicals and Akcros Chemicals v CommissionAkzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:512, paragraphs 42, 43 and 45). My emphasis.

18      See for example, orders of 5 December 1996, Lopes v Court of JusticeLopes v Court of JusticeLopes v Court of Justice (C‑174/96 P, EU:C:1996:473); of 5 December 2013, Martínez Ferríz v SpainMartínez Ferríz v SpainMartínez Ferríz v Spain (T‑564/13, not published, EU:T:2013:650); of 8 May 2018, Spieker v EUIPO (Science for a better skin) (T‑92/18, not published, EU:T:2018:289), currently under appeal as Case C‑455/18 P; and of 27 September 2018, Sógor v Council and OthersSógor v Council and OthersSógor v Council and Others (T‑302/18, not published, EU:T:2018:621).

19      Order of 4 December 2017, Nap Innova Hoteles v SRB (T‑522/17, not published, EU:T:2017:881, paragraph 8).

20      Orders of 8 December 1999, Euro-Lex v OHIM (EU-LEX)Euro-Lex v OHIM (EU-LEX)Euro-Lex v OHIM (EU-LEX) (T‑79/99, EU:T:1999:312, paragraphs 28 and 29); of 19 November 2009, EREF v CommissionEREF v CommissionEREF v Commission (T‑94/07, not published, EU:T:2009:451, paragraph 17); and of 21 March 2011, Milux v OHIM (REFLUXCONTROL)Milux v OHIM (REFLUXCONTROL)Milux v OHIM (REFLUXCONTROL) (T‑139/10, T‑280/10 to T‑285/10 and T‑349/10 to T‑352/10, not published, EU:T:2011:98, paragraph 22).

21      Orders of 5 September 2013, ClientEarth v Council (C‑573/11 P, not published, EU:C:2013:564) and of 6 September 2011, ClientEarth v Council (T‑452/10, not published, EU:T:2011:420).

22      Order of 31 May 2013, Codacons v Commission (T‑120/13, not published, EU:T:2013:287, paragraph 11).

23      Order of 18 November 2014, Justice & Environment v Commission (T‑221/14, not published, EU:T:2014:1002, paragraphs 10 to 14).

24      Order of 20 November 2017, BikeWorld v CommissionBikeWorld v CommissionBikeWorld v Commission (T‑702/15, EU:T:2017:834).

25      Order of 23 May 2011, Prezes Urzędu Komunikacji Elektronicznej v Commission (T‑226/10, EU:T:2011:234, paragraph 21).

26      Judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission (C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraphs 33 to 34). See similarly orders of 18 November 2014, Justice & Environment v CommissionJustice & Environment v CommissionJustice & Environment v Commission (T‑221/14, not published, EU:T:2014:1002); of 14 November 2016, Dimos Athinaion v CommissionDimos Athinaion v CommissionDimos Athinaion v Commission (T‑360/16, not published, EU:T:2016:694); and of 8 April 2019, Electroquimica Onubense v ECHAElectroquimica Onubense v ECHAElectroquimica Onubense v ECHA (T‑481/18, EU:T:2019:227).

27      Judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission (C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraphs 24 and 25 and the case-law cited). See, however, order of 23 May 2011, Prezes Urzędu Komunikacji Elektronicznej v Commission (T‑226/10, EU:T:2011:234, paragraphs 16, 17 and 21).

28      Order of 30 May 2018, PJ v EUIPO — Erdmann & Rossi (Erdmann & Rossi) (T‑664/16, EU:T:2018:517), currently the subject of two pending appeals in PJ v EUIPO (C‑529/18 P) and PC v EUIPO (C‑531/18 P).

29      Ibidem, paragraph 59.

30      Order of 13 June 2017, Uniwersytet Wrocławski v REAUniwersytet Wrocławski v REAUniwersytet Wrocławski v REA (T‑137/16, not published, EU:T:2017:407, paragraph 20).

31      Above, points 37 to 40 of this Opinion.

32      See, for instance, the Charter of core principles of the European legal profession & Code of conduct for European lawyers, cited above in footnote 11, p. 7 (point 6) and p. 9 (principles (h) and (i) concerning respectively respect towards professional colleagues and for the rule of law and the fair administration of justice).

33      Compare especially judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission (C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraphs 24 and 25 and the case-law cited) with orders of 23 May 2011, Prezes Urzędu Komunikacji Elektronicznej v Commission (T‑226/10, EU:T:2011:234, paragraphs 16, 17 and 21), and of 30 May 2018, PJ v EUIPO — Erdmann & Rossi (Erdmann & Rossi) (T‑664/16, EU:T:2018:517).

34      As I noted earlier (point 29), that problem is linked to the other grounds of both appeals, namely to the second ground of the appeal of the University of Wrocław and to the second and third grounds of the appeal of the Republic of Poland.

35      See, for example, order of 20 November 2017, BikeWorld v Commission (T‑702/15, EU:T:2017:834, paragraph 35).

36      Practice directions to parties concerning cases brought before the Court (OJ 2014 L 31, p. 1). See, especially, under Section I, General Provisions, point 2 entitled ‘Representation of the parties before the Court’. Essentially reproducing the text of the fourth paragraph of Article 19 of the Statute, point 2 of those directions simply states that non-privileged applicants must be represented by a lawyer authorised to practise before a court of a Member State and that ‘the evidence of that capacity must be capable of being produced, on request, at any stage of the proceedings’.

37      See, for example, orders of the General Court of 14 October 2010, Varga and Haliu v Council (T‑296/10, not published, EU:T:2010:435), and of 13 November 2012, Hârsulescu v Romania (T‑400/12, not published, EU:T:2012:595).

38      An issue to which I shall return below, in points 149 to 153 of this Opinion.

39      See for example, order of 20 November 2017, BikeWorld v Commission (T‑702/15, EU:T:2017:834, paragraph 30). That being said, the practice seems to allow for some exceptions, as evidenced by the order of the Court of 5 September 2013, ClientEarth v Council (C‑573/11 P, not published, EU:C:2013:564, paragraphs 21 and 22). The General Court had previously declared the action filed in this case inadmissible because the applicant’s legal representative was one of its seven ‘trustees’. On appeal, the Court of Justice approved that conclusion, while noting that the General Court omitted to consider the fact that the legal representative had informed the General Court of a change in legal representation. That omission did not, nevertheless, affect the main conclusion of the Court of Justice, ‘although such a change was apparently impliedly regarded, in the orders of 9 November in Case T‑120/10 ClientEarth and Others v Commission and Case T‑449/10 ClientEarth and Others v Commission, as curing a defect within the meaning of Article 44 of the Rules of Procedure of the General Court’, with Article 44 being the legal predecessor of the current Article 51 of the RPGC.

40      Moreover, if the fourth paragraph of Article 19 of the Statute were to be taken literally, as a pure and unqualified renvoi to national rules and practice (without the reference to the concept of ‘representation’ by a third party more clearly articulated in the third paragraph of Article 19), would the fact that, for example, a lawyer may represent himself in a Member State also be sufficient to permit self-representation before the EU Courts?

41      Above, points 37 to 40.

42      See, in this sense, the Charter of core principles of the European legal profession & Code of conduct for European lawyers, cited above in footnote 11, p. 7, point 6, where the lawyer is described as, among other things, ‘an indispensable participant in the fair administration of justice’. See also p. 9, principle (i), ‘Respect for the rule of law and the fair administration of justice’.

43      See also the second paragraph, second sentence, of Article 47 of the Charter: ‘Everyone shall have the possibility of being advised, defended and represented.’

44      Relying on the judgment of 18 May 1982, AM & S Europe v Commission (155/79, EU:C:1982:157) and subsequent case-law.

45      Or indeed a conflict between several clients of the same lawyer. See the Polish example quoted by the University of Wrocław, the Republic of Poland and the Krajowa Izba Radców Prawnych, namely Article 7(2) of the Kodeks Etyki Radcy Prawnego (Code of Ethics for Legal Advisers): ‘The legal adviser, in the exercise of his professional activities, must be free from any influence arising from his personal interests, from external pressure, and from interference from any party or for any reason. Instructions expressed by any person, suggestions or directions limiting his independence cannot influence the opinion that he gives in a case.’ See also, for instance, the Charter of core principles of the European legal profession & Code of conduct for European lawyers, cited above in footnote 11, especially Article 2.1. See also Thomas de Carranza Méndez de Vigo, S., ‘Principios fundamentales en el ejercicio de la profesión de abogado’, in Vila Ramos, B. (coord.), Deontología profesional del abogado, Dickinson, Madrid, 2013, pp. 35 to 50, pp. 37 and 38, or Sánchez Stewart, N., Manual de Deontología para Abogados, La Ley, Madrid, 2012.

46      Article 30(1) of the Code of Ethics for Legal Advisers states that: ‘A legal adviser cannot provide legal assistance to a client when, in the case in question or in a related case, there is a conflict of interest between the client and the legal adviser or a risk that such a conflict might arise, or when the professional activities concern the person or property of the legal adviser or of someone close to him, unless those activities concern claims, actions or interests that are in common with the client.’

47      For instance in France, where no disciplinary procedure has been initiated in respect of a specific lawyer, the judge can be asked to order the lawyer (advocate) to cease to represent a client in a given case (Cour de cassation (Court of Cassation, France) judgment of 27 March 2001, n° 98-16.508). In Spain, the judge can warn the lawyer that it may be appropriate for him to cease to represent the client (Tribunal Supremo (Supreme Court, Spain), judgment of 18 November 2013, n° 841/2013, RJ 2014/3061).

48      See also the Charter of core principles of the European legal profession & Code of conduct for European lawyers, cited above in footnote 11, especially p. 8.

49      Above, point 87 of this Opinion.

50      Although clearly not the subject matter of the present case, I note that a rather restrictive view has been taken on what national entities are covered by the first paragraph of Article 19 of the Statute. That provision refers to ‘Member States’ without any further qualification or definition. The approach of the General Court, endorsed by this Court, appears to interpret the concept of a ‘Member State’ very narrowly, effectively excluding public entities, such as independent central bodies, but also municipalities or regions, from the possibility of appointing an agent in a case. See, for instance, orders of 20 February 2008, Comunidad Autónoma de Valencia — Generalidad Valenciana v Commission (C‑363/06 P, not published, EU:C:2008:99) and of 5 July 2006, Comunidad Autónoma de Valencia — Generalidad Valenciana v Commission (T‑357/05, EU:T:2006:188). See further, orders of 18 November 2014, Justice & Environment v Commission (T‑221/14, not published, EU:T:2014:1002), and of 14 November 2016, Dimos Athinaion v Commission (T‑360/16, not published, EU:T:2016:694). I must admit that I see little practical purpose in such a narrow interpretation. A number of public bodies are likely to have qualified administrative staff or legal departments that can, like the respective ministries, represent that public authority, without generating any further unnecessary costs for the public purse by having to hire external lawyers. Moreover, there is also the broader, general issue: EU law does not shy away from embracing a rather sweepingly broad definition of a ‘Member State’ when it comes to imposing duties and obligations flowing from EU law, as evidenced for example by what constitutes an ‘emanation of state’ (see judgments of 12 July 1990, Foster and Others (C‑188/89, EU:C:1990:313, paragraphs 17 to 20 and the case-law cited); of 10 October 2017, Farrell (C‑413/15, EU:C:2017:745, paragraphs 24 to 29 and the case-law cited); and of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, paragraph 45 and the case-law cited)), or by what bodies, other than States strictly speaking, may be liable for breaches of EU law (see judgment of 4 July 2000, Haim (C‑424/97, EU:C:2000:357, paragraphs 27 to 28 and the case-law cited)), but embraces a surprisingly narrow definitional approach when it comes to potential benefits and privileges granted under EU law to ‘Member States’. Of course, areas of substantive or institutional EU law are different from the interpretation of the first paragraph of Article 19 of the Statute. But is there any specific purpose behind such a differentiation? As this entire appeal demonstrates, case-law approaches and definitions can otherwise move across areas and fields of EU law with relative ease.

51      Also above, point 96.

52      Judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:512, paragraphs 47 to 48).

53      Above, points 59 to 67 of this Opinion.

54      It appears that the practice in the Member States varies widely in terms of whether employed lawyers are entitled to exercise regulated legal practice, to represent their employer in proceedings, to remain members of a national bar, or to enjoy legal privilege. See, for example, Marchandise, P., Jammaers, C., Macours, K., and Vandoorne, L., Déontologie et organisation générale de la profession de juriste d’entreprise. Théorie et cas pratiques de réflexion, Institut de Juristes d’Entreprise, Brussels, June 2018, p. 85, with the overview of each of the 28 Member States at pp. 86 to 94.

55      See judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission (C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraphs 10 to 12).

56      That, it appears, was the situation of the legal representative who represented the University of Wrocław in the proceedings that led to the order under appeal. A similar two-fold possibility appears to exist, for instance, in Ireland as regards solicitors, who must follow the Guide to Good Professional Conduct for Solicitors and whose profession is regulated by the Solicitors Acts 1954 to 2015.

57      See, for instance, as regards France, judgment of the Cour de cassation No 1497 of 16 September 2015 (14-17.842), or, in Ireland, section 212 of the Legal Services Regulation Act 2015 which, when commenced, will allow an employed barrister whose name is entered on the roll of practising barristers to provide legal services to his employer, including by appearing on behalf of that employer in a court, tribunal or forum for arbitration.

58      I cannot but acknowledge the complexity of the discussion on the nature of the role and profession of external lawyers on the one hand, and of employed in-house counsel on the other. See, for instance, Haeri, K., L’avenir de la profession d’avocat, Rapport confié par Monsieur Jean-Jacques Urvoas, Garde des Sceaux, Ministre de la Justice à Monsieur Kami Haeri, Avocat au Barreau de Paris, February 2017, pp. 72 to 73.

59      Above, points 103 to 113 of this Opinion.

60      By default, a rationally calculating EU institution or agency is likely to start its defence by questioning wherever possible with whatever information obtainable the ‘independence’ of the non-privileged applicant’s lawyer. In this way, more and more cases are likely to be assessed on this point, further expanding the cases of a ‘lack of independence’ into new factual scenarios, which naturally fuels more and more such inadmissibility objections, which then leads the court to enter into detailed discussions of facts and issues that are hardly its core business, gradually replacing any system of substantive judicial review with a true inadmissibility Ouroboros.

61      Above, points 68 to 78.

62      Paragraph 18 of the order under appeal.

63      See, for example, judgments of the Tribunal Constitucional (Constitutional Court, Spain) 199/2001 of 4 October (ES:TC:2001:199), and 213/1990, of 20 December (ES:TC:1990:213), and decision of the Ústavní soud (Constitutional Court, Czech Republic) Pl. ÚS-st. 42/15 of 8 October 2015 (CZ:US:2015:Pl.US-st.42.15.1). See also IV. ÚS 3638/15 of 28 February 2018 (CZ:US:2017:4.US.3638.15.1).

64      See, for example, the instances from France or Spain quoted above in footnote 47.

65      See also above, points 72 to 78 of this Opinion. In this context, I do not consider it necessary to enter into an analysis of any potential limitations under Article 52(1) of the Charter, as such practice simply extinguishes the essence of the right to an effective judicial remedy. I also note that the European Court of Human Rights (‘ECtHR’) held that an overly strict interpretation of national procedural rules on mandatory representation constituted a violation of Article 6(1) of the European Convention on Human Rights (‘ECHR’) and, more specifically, of the right of access to a court when a claim filed by an applicant — a practising lawyer — was dismissed, thereby depriving the applicant of a full examination of the merits of his allegations. See ECtHR, 11 February 2014, Maširević v. Serbia, (CE:ECHR:2014:0211JUD003067108, §§ 47 to 51).

66      See order of the Court of 5 September 2013, ClientEarth v Council (C‑573/11 P, not published, EU:C:2013:564), commented upon above in footnote 39.

67      A similar obligation would apply mutatis mutandis to the Court based on Article 119 of its Rules of Procedure.

68      This renders the interpretative logic already outlined above (at points 72 to 78) even more striking and dangerous. Again, is it not rather logical that the procedural rules do not provide for any possibility of remedying non-compliance with criteria that are not specified in the rules in the first place?

69      While also significantly departing from the ‘substance over form’ approach that the Court usually embraces when the interpretation of Article 47 of the Charter or the principle of effective judicial protection as applied to the Member State courts is concerned, asking those courts to interpret the relevant national procedural rules in a way that safeguards rather than denies access. See, for example, judgment of 12 June 2014, Peftiev and Others (C‑314/13, EU:C:2014:1645, paragraph 29); judgment of 15 September 2016, Star Storage and OthersStar Storage and OthersStar Storage and Others (C‑439/14 and C‑488/14, EU:C:2016:688, paragraphs 49 to 63); and judgment of 27 September 2017, PuškárPuškárPuškárPuškárPuškár (C‑73/16, EU:C:2017:725, paragraph 76). For its part, the ECtHR recalls that ‘“excessive formalism” can run counter to the requirement of securing a practical and effective right of access to a court under Article 6§1 of the [ECHR]. This usually arises in cases of a particularly strict construction of a procedural rule, preventing an applicant’s action from being examined on the merits, with the attendant risk that his or her right to the effective protection of the courts would be infringed’. ECtHR, 5 April 2018, Zubac v. Croatia (CE:ECHR:2018:0405JUD004016012, §§ 97 to 99 and the case-law cited).

70      See, similarly, Article 119(4) of the Rules of Procedure of the Court.

71      Under Article 55(3) of the RPGC. It might only be added that the entire Article 55 RPGC, which provides for the possibility of excluding an agent, adviser, or lawyer from proceedings, offers yet further confirmation that the current interpretation of Article 51(4) of the RPGC is questionable. If it is possible to replace an excluded lawyer, at any stage of the proceedings, why should it be conceptually impossible to replace a legal representative when it becomes clear that he does not satisfy the criteria of Article 19 of the Statute ab initio (namely, when the application was filed)?

72      Above, point 144.

73      Paragraph 20 of the order under appeal.

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