Two recent EU General Court decisions, Daimler v EUIPO and Natixis v European Commission, have clarified that only a lawyer authorised to practise before the courts or tribunals of a Member State of the EU or another state that is a party to the European Economic Area (“EEA”) agreement may represent or assist a party in proceedings before the Courts of the European Union, subject to certain very narrow exceptions.
These judgments highlight the difficulties faced by UK lawyers seeking to represent clients before the CJEU, unless those lawyers are also authorised to practise in an EU or EEA state.
In Daimler, the applicant sought to bring an appeal against a decision of the First Board of Appeal of EUIPO, relating to proceedings between it and Volkswagen AG. The applicant sought to be represented by inter alia two barristers.
The Court requested that the applicant produce certificates from the two barristers demonstrating that they were 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 (EEA), in accordance with Article 51(2) of its Rules of Procedure”. In reply, the applicant presented two practising certificates from the General Council of the Bar of England and Wales.
In Natixis, the applicant sought the annulment of a decision of the Commission relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement in so far as it related to the Applicant, Natixis. The Applicant sought to be represented by three lawyers, Mr H, Mr D and Ms G, all of whom were authorised to practise in the UK. Ms G relied upon her authorisation to practise as a solicitor in the UK, together with a declaration to the effect that she was registered under the Lawyers Establishment Directive (Directive 98/5/EC) to practise in Paris under the title of “solicitor”.
By decision dated 7 September 2021, the President of the General Court refused to authorise the lawyers in question to represent the applicant as they were only entitled to practise in the courts of the United Kingdom. The applicant asked for an explanation for this decision. The Court requested further information from the parties as to the entitlement of Ms G to rely on her registration under the Establishment Directive and sought information from the French government as to whether a lawyer entitled to practise in the UK could practise before the French courts and tribunals. However, this issue became moot as Ms G had obtained a practising certificate from the Law Society of Ireland and, on production of same to the Court, the Court was satisfied that Ms G was entitled to represent the applicant before the Court. The Applicant sought further explanations as to why Mr H and Mr D had not been authorised to represent the Applicant.
Rationale of the Court
The Court noted in both judgments that, according to its case law, Article 19 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court, requires that, for a person to be permitted to represent a party before the EU courts, that person must be a lawyer and must be authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement.
In Daimler, the Court noted that the documentation provided for the two barristers did not demonstrate that they were authorised to practise before the courts of an EU or EEA state. The Court noted that the applicant could not rely on certain narrow exceptions contained in Articles 91 to 95 of the Withdrawal Agreement, such as where proceedings were in being prior to the end of the transition period. On that issue, the Court noted that the proceedings in question were brought in July 2021, following the end of the UK-EU transition period. As the application made by the Applicant did not satisfy the relevant conditions of Article 19, the action was dismissed by the Court.
In Natixis, the Court noted that neither Mr H nor Mr D were authorised to practise in an EU or EEA state. The Court concluded that the applicant could not rely on any exceptions set out in either the Withdrawal Agreement or the EU-UK Trade and Cooperation Agreement. The Court noted that there were three narrow situations where a UK lawyer could continue to represent a party before the EU courts under the Withdrawal Agreement, namely:-
1. A lawyer authorised to practise before the courts or tribunals of the UK may represent or assist a party before the General Court in cases which are exhaustively listed. In that regard, a lawyer who represented a party on 31 December 2020 in proceedings before the Court may continue to represent or assist that party in an action before the General Court in those proceedings.
2. A lawyer authorised to practise before the courts and tribunals of the UK may represent or assist a party before the General Court in an action for annulment brought against decisions adopted by the EU institutions, bodies, offices and agencies before 31 December 2020 and addressed to the UK, or to natural and legal persons residing or established in the UK and certain decisions addressed to the UK after 31 December 2020.
3. A lawyer authorised to practise before the courts or tribunals of the United Kingdom may represent or assist the UK before the General Court in proceedings in which the UK has decided to intervene in accordance with Article 90 of the Withdrawal Agreement.
The Court was satisfied on the facts that none of the identified exceptions under the Withdrawal Agreement applied.
Further, the Court held that the applicant could not rely on any provision of the Trade and Cooperation Agreement. The Court noted that, whilst the Trade and Cooperation Agreement provides, under Article 194, that a party to the agreement is to allow a lawyer of the other party to the agreement to supply designated legal services under that lawyer’s home title in accordance with certain provisions of that agreement but stated that Article 193 expressly excluded legal services relating to EU law from the scheme. Finally, the Court noted that the Applicant could not rely on any domestic law provisions which entitled Mr H and Mr D to appear before the courts or tribunals of an EU or EEA state.
On that basis, the Court held that Mr H and Mr D were not entitled to represent the applicant before the Court.
The General Court of the EU has clearly stated in both Daimler and Natixis that UK lawyers will not be permitted to represent parties before the Court unless the lawyers in question are also authorised to practise in an EU or EEA state, or unless one of the narrow exceptions under the Withdrawal Agreement applies. The General Court has taken a strict line on this issue and it seems clear that UK lawyers without an authorisation to practise in an EU or EEA state will not be permitted to represent parties before the EU courts, unless an exception under the Withdrawal Agreement applies.
Stephen McLoughlin, Partner and Head of Regulatory, and Rachel Kennedy, Associate, Addleshaw Goddard (Ireland) LLP