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If upheld by the European Court of Justice, the ruling will further exemplify the outdated and destructive attitude of the European jurisdictions to the important role of in-house counsel.
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