European brief | Assumption that employed lawyers are not 'independent' is unsatisfactory

Article 19 of the Statute of the European Court of Justice provides that “Member States and the institutions of the Union shall be represented before the Court by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer … Other parties must be represented by a lawyer.” It goes on to say that “Only a lawyer authorised to practise before a court of a Member State … may represent or assist a party before the Court.”

Polish law recognises not only the profession of lawyer, but the profession of “legal adviser” – a status established by the Polish constitution, governed by a specific law, and subject to a code of ethics. Under Polish law, legal advisers may be employed by their clients; but the ethical rules are designed to ensure that they can “exercise their profession in complete independence whether or not they act under a contract of employment”. They are entitled to represent their clients in court.

Ms Gruszecka and Ms Paw?owska were legal advisers, duly qualified as such in Poland, employed by a Polish state organisation, the Electronic Communications Office. They signed, on behalf of the chairman of that office, an action for annulment of a Commission decision. The General Court became suspicious. It asked whether the applicant’s representatives were employed lawyers. And when it found out that they were, it dismissed the application as inadmissible: it had not been signed by a proper legal representative (Case T-226/10 Prezes Urz?du Komunikacji Eletronicznej v Commission [2011] ECR I-0000). In Joined Cases C-422/11 P and C-423-P (6 September 2012), the ECJ dismissed an appeal.

Not qualified?

The surprised layman might ask: what is the problem? The persons in question held a qualification expressly referred to in the ECJ’s statutes. That professional qualification entitled them to do the very thing that article 19 requires: to represent a client before the Polish courts. The Polish government confirmed this. How could they be held not to be qualified?

The sticking point for the General Court and the ECJ was the very notion of an employed lawyer. Building on various earlier cases, the General Court concluded that a person cannot be ‘represented’ by an employee, because that would be a sort of ‘self-representation’. That, the General Court thought, was consistent with a conception of the lawyer that it found to “reflect legal traditions common to the Member States”: “collaborating in the administration of justice and being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs”.