1 April 2022 | By Marten Männis
Attorneys must be “independent” to represent before courts in the EU
The General Court of the European Court of Justice recently clarified the definition of independence in the legal profession and demonstrated how the viewpoint has evolved since the AM&S and Akzo Nobel decisions.
The case PJ and PC vs EUIPO concerned a trademark registration by an individual “PJ” to the European Union Intellectual Property Office (EUIPO). In 2014, the trademark was petitioned to be invalidated, on the grounds of Article 52(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark, which invalidates trademarks that were filed in bad faith. This petition was rejected by EUIPO in 2015, which was later overturned by their board of appeal.
The decision to invalidate was lodged to the General Court. “PJ” was represented by an attorney “S”. The Court noted that “PJ” is one of two founding partners of a law firm that the attorney “S” is employed under. The Court also found that since the law firm in question makes decisions on an unanimous basis, PJ has relevant control over all the decisions made by the law firm, including the attorney S, who is representing him in this case.
The General Court decided against taking on the suit, reasoning that the application was not signed by an independent lawyer. The General Court stressed that, pursuant to Articles 19(3), 19(4), and 21(1) of the Statute of the Court of Justice of the European Union, “PJ” must be represented by an attorney who has the legal right to appear before a Member State court. In its reasoning, the Court referred to the Prezes Urzędu Komunikacji Elektronicznej and Republic of Poland v Commission, where the Court had held that the definition of the “independence” of a lawyer concerns not only positive definitions, including adhering to relevant code of conduct, but also negative definitions, such as the absence of an employment relationship between a lawyer and their client. In its rejection, the Court held that this reasoning also applies to situations, where the attorney is in an employment relationship with a unit that is connected to the party they represent or where there is a contractual agreement between the party and the attorney.
The claimant tried to argue that in cases of a natural person lodging a claim, the only requirement to satisfy Article 19(3) of the Statute must be represented by another natural person. Furthermore, in their view, an economic connection between an attorney and their client is not enough to conclude a lack of independence for the lawyer. In their view, the, Prezes Urzędu Komunikacji Elektronicznej case was also not applicable, given that the interests of the claimant did not align with the law firm that they are a partner in and where the attorney is employed in. In their view, the purported lack of independence that the attorney in question experiences was based on assumptions and not on material grounds.
The court noted that pursuant to the wording of Article 19 of the statute, claimants must use third party services for representation. This follows the reasoning of the article, whereby parties before the court must be represented by an attorney, to restrict representation without intermediaries and to ensure that legal persons are represented by representatives who are independent towards whom they are representing. It is the view of the court that, pursuant to Article 19(3) and (4) of the statute, the purpose of the representing attorney is to protect the interests of the party to the best of their abilities, while being independent, follow the relevant rules and legislation and code of conduct.
The Court, under point 65, notes that though cases such as AM&S and Akzo Nobel initially defined independence through the lens of competition law investigations and the confidentiality obligations the legal profession upholds, by now the definition, when considering representation before Courts within the EU, has changed. The main element there concerns protecting the interests of the client, following the relevant rules and legislation and other profession-related norms and codes. It repeats the sentiment held in the Uniwersytet Wrocławski v REA case, whereby the independence of a lawyer is seen through both negative definitions, such as the absence of an employment relationship and through positive definitions, such as the proper following of the professional code of conduct. The Court further specifies that the independence of a lawyer presumes a complete absence of an employment relationship between an attorney and their client.
When considering the positive definitions of the independence element of an attorney, the Court stresses that attorneys cannot have any ties to their clients that clearly would hinder their power to represent their client in the best possible way. The Court does however note that the relationship between an attorney and their law firm or the partner of the law firm in question does not automatically mean that there is an absence of independence for the attorney. This can be illustrated by the variety of organisational forms attorneys have worked under throughout the EU. However, in a situation, where the client is the founding partner of the law firm in question does presumably imply a lack of independence for the attorney and must be held as such.
It should be noted that when making the judgment, the Court waited for the Uniwersytet Wrocławski v REA case to be finalised, implying that it will extend the reasoning used in that decision. That within the past two years there have been two cases concerning the independence of the legal profession does imply that there is still a lack of clarity regarding the scope of professional independence for the whole legal profession. ECLA has been strongly advocating in favour of recognising the professional independence of in-house counsel since its inception.