The European General Court has held that employed lawyers do not
have the right to represent their in-house clients before it.
Building on the controversial rejection of the application of
legal privilege to communications with in-house counsel in
the Akzo case (14 September 2010, full
report not yet published), the Court has decided that even where an
employed lawyer is a registered member of a national bar and has a
right of audience in his or her home state, the fact that the
in-house lawyer is employed by an internal client deprives the
in-house lawyer of the independence required to represent that
client before the European courts.
The first instance decision – now on appeal to the
European Court of Justice – (Order of the General Court
(Seventh Chamber) of 23 May 2011, Prezes Urzędu
Komunikacji Elektronicznej v European Commission, Case T-226) concerns Article 19 of the Statute
of the Court. This says that whilst the European institutions
themselves and Member States may be represented by an
"agent" who may be assisted by a lawyer, other parties
must be represented only by a lawyer. The lawyer must have the
right to appear before the courts of a member state.
The case in question was an appeal against a Commission decision
where the Polish appellant was not a state or European institution,
and was represented by two employed lawyers with the title
radca prawny (analogous to an English solicitor or French
former conseil juridique). Even though a radca
prawny does have a right of audience (except in certain
criminal matters) before the Polish courts, the European Court of
First Instance held that the fact that the Polish lawyers were
employed meant they could not represent their client before it.
If upheld by the European Court of Justice, the ruling will
further exemplify the outdated and destructive attitude of the
European jurisdictions to the important role of in-house
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Privilege is a right, recognised under common law, which allows documents (or other
forms of communication) to be withheld from disclosure during the course of litigation
or certain investigations (such as those conducted by the European Commission).
On 1st April 2013 a big bang echoed through our civil justice system.
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