Les requérants non privilégiés devant le Juge européen : quand les avocats représentent les avocats (ou leur cabinet). Commentaire sur l’arrêt dans l’affaire Studio Legale Ughi e Nunziante v EUIPO (C‑776/22 P)

Introduction

Non-privileged (private) parties bringing actions (including appeals) before the EU Courts “must be represented by a lawyer”. That is a clear requirement set out in the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union (the “Statute”)¹. The fourth paragraph of that provision specifies, moreover, that a pre-condition for a lawyer to be allowed to represent parties before the Union’s judiciary is, in simple terms, membership of one of the national bar associations².

In a certain contrast to what one could expect in the light of that rather technical looking rule, a substantial body of case-law has formed to stress, in diverse factual contexts, that the possibility for a lawyer to appear before the EU Courts (again, in direct actions) is subject not only to the above condition of membership of a national bar (fourth paragraph of Article 19 of the Statute) but also to the necessity that legal assistance be provided ‘‘in full independence’’³. The latter requirement is understood as being inherent in the obligation for private parties to be represented by ‘‘a lawyer’’ (the third paragraph of Article 19 of the Statute). While such a condition is not novel and may reflect what various national rules require, there have been important developments in the case-law with regard to the understanding of its substantive scope, on the one hand, and of the procedural consequences of the failure to meet it, on the other hand. The judgment under analysis⁴ is the most recent and fundamental element thereof, partly clarifying and partly modifying the stance previously taken by the Court.

The pre-existing position of the case-law

Without it being necessary (or possible) in this case note to provide an exhaustive account of the case-law concerning the obligation on private parties to be represented by a lawyer before the EU Courts⁵, the following comments are provided in order for the reader to be able to appreciate the significance of the judgment under commentary.

First, as regards the substantive aspect of the aforementioned obligation, a lawyer’s independence is understood by the EU Courts as, in essence, being incompatible with certain links between the lawyer and the represented party. Although the understanding of what may constitute such a link may previously have been rather broad, the Court (sitting in the Grand Chamber) explained in Uniwersytet Wrocławski that ‘‘the lawyer’s duty of independence is to be understood not as the lack of any connection whatsoever between the lawyer and his or her client, but the lack of connections which have a manifestly detrimental effect on his or her capacity to carry out the task of defending his or her client while acting in that client’s interests to the greatest possible extent’’ ⁶.

That finding was a correction of what had been decided at first instance, where the General Court found that a university could not be represented by a lawyer who was teaching a class at that university (based on a civil law contract, not as one of its employees). By stressing that the condition of the lawyer’s independence excludes only such links between the lawyer and the client that are clearly harmful for the latter, the Court disapproved of the extension to the above situation of the otherwise established case-law according to which the condition of an independent legal representative is not satisfied when an in-house lawyer represents his or her employer (where the national law allows for members of a bar to practice as in-house lawyers)⁷. This judgment clarified, in a more general manner, that the situations which disqualify a given lawyer from representing a given party before the EU Courts must be construed restrictively⁸ and must be assessed in the light of the harm that such representation may inflict upon the client (as opposed to broader considerations of overriding interests of justice, which had been stressed in the previous case-law)⁹.

Second, a specific strand of the case-law on the requirement of independent representation concerns the capacity of lawyers to represent other lawyers with whom they are in some way associated ¹⁰ . In particular, in application of the test clarified in Uniwersytet Wrocławski, the Court held, in PJ and PC, that a partner of a law firm cannot be represented by a lawyer who is an associate of the same law firm, as the partner ‘‘effectively controls’’ the legal representative ¹¹.

Third, because that result converged with the outcome at the first instance, the Court moved on to examine another ground of appeal in that case, which argued that the General Court’s refusal to provide the applicant with an opportunity to appoint a new lawyer infringed the applicant’s right to effective judicial protection enshrined in Article 47 of the Charter. In that regard, the Court relied on the silence of the procedural rules to conclude that such an option is not given and that neither the General Court nor the Court of Justice is under an obligation to notify the applicant and to enable him to appoint a new legal representative where the lawyer who was initially appointed does not satisfy the requirements of independence¹². The Court’s conclusion regarding the impossibility for the applicant to change legal representative (when the time limits for bringing the action expired) led the Court to reject the arguments challenging the General Court’s decision to dismiss the action as inadmissible. That was, in a nutshell, the existing state of the case-law when the EU Courts were called on to hear the case which resulted in the judgment under discussion.

The judgment under comment

The Court’s judgment in Studio Legale Ughi e Nunziante v EUIPO arises out of an appeal brought by an Italian law firm (Studio Legale Ughi e Nunziante) against an order of the General Court dismissing its action as manifestly inadmissible on the ground that that law firm had appointed three of its partners to represent it before the General Court¹³. Put simply, the General Court, pursuant to Article 126 of its Rules of Procedure, held that the status of those lawyers as partners of the law firm meant that they could not be considered independent third parties vis-à-vis the applicant, contrary to the requirements of Article 19 of the Statute. In line with the Court’s findings in PJ and PC, the General Court also held that a failure to comply with the obligation of representation by a(n independent) lawyer is not among the requirements which may be rectified after the expiry of the period for bringing an action¹⁴. Accordingly the (trade-mark related) action brought by Studio Legale Ughi e Nunziante was dismissed as manifestly inadmissible.

That party brought an appeal that, to be examined, first had to be ‘admitted’ and undergo, for that purpose, the test of the ‘filtering mechanism’ that exists for some categories of appeals. That meant that the applicant had to show that its appeal raised “an issue that is significant with respect to the unity, consistency or development of Union law”¹⁵.That test can be viewed as a stringent one, as can be inferred from the fact that, to date, only eight such applications have been successful, in full or in part (the present case being one such partially successful case)¹⁶ .

Once that stage was passed, the questions that the Court had to assess were essentially twofold and concerned respectively the substantive and procedural aspects of the requirement of independent legal representation.

On the substantive aspect, the Court held that any lawyer authorized to practice under the applicable national laws, professional rules and codes of conduct is presumed to satisfy the requirement of independence. It also clarified that that presumption is, or can be, rebutted in three situations. First, it is (automatically) rebutted when the lawyer is employed by the represented party (which includes lawyers practicing as employees in a law firm or in-house lawyers, where the relevant national law allows for their simultaneous membership of a national bar). Second, it may be rebutted where specific evidence shows connections between the client and the legal representative which have a manifestly detrimental effect on the lawyer’s capacity to represent that client (as explained in more depth above). Third and lastly, it may be rebutted when evidence shows that the lawyer does not comply with the relevant national professional rules and codes of conduct¹⁷.

Against that (newly systematized) analytical grid, the Court, sitting in the Grand Chamber, rejected the General Court’s findings and held that the simple fact of being a partner in an applicant law firm is not incompatible with the requirement of the lawyer’s independence. That is because such situation cannot be equated with an employment relationship. Furthermore, there was no evidence which allowed for the presumption of independence to be rebutted (the Court observed that no doubt even existed in that respect)¹⁸.

The Court then turned to the procedural aspect of the case to observe that the compliance with the requirements laid down by the third paragraph of Article 19 of the Statute (obligation to be represented by a lawyer) is a matter pertaining to the admissibility of the action which, in turn, constitutes a matter of public policy to be raised by the EU Courts of their own motion. In that light, the Court criticized the General Court’s decision not to invite the applicant to submit observations on the matter (given the General Court’s view that the condition of the lawyer’s independence was not complied with) and provide the applicant with an opportunity to appoint a new lawyer before declaring the action inadmissible¹⁹.

That statement is significant in as much it departs (impliedly) from the findings on procedure in PJ and PC, following the invitation made to that effect by Advocate General Richard de la Tour²⁰ (and, for that matter, in line with the positions previously expressed by Advocate General Bobek in Uniwersytet Wrocławski and by Advocate General Emiliou in Universität Bremen)²¹. Indeed, by referring in particular to the ‘‘seriousness of consequences which follow from the infringement of Article 19 of the [Statute] for the applicant’’ (namely the inadmissibility of the action)²², the Court clearly requires that the applicant be provided with the opportunity to appoint a new lawyer when the representative that was initially chosen fails the test implied by the third paragraph of Article 19 of the Statute.

It should be noted that the Court addressed that procedural issue despite the fact that it was not strictly speaking necessary in the light of the position taken on the substance of the test. Indeed, the Court found that the presumption of the lawyers’ independence was not rebutted in casu, thereby making the discussion on the procedural consequences of the opposite scenario moot. That said, it should be observed that the judgment under discussion constituted just one in a series of cases in which the Court was faced with exactly that scenario, namely where the position taken on the substantive aspect of the obligation to be represented by an independent lawyer made the consideration of the procedural consequences of the failure to fulfil it irrelevant. In that respect and in line with the position taken in particular in the judgments in Uniwersytet Wrocławski and in Universität Bremen, the Court considered the examination of the ground of the appeal specifically addressing the issue of rectification of legal representation unnecessary²³. In that, it thus departed from the approach undertaken by the Advocate General who, in the light of the importance of the question raised, invited the Court to engage in its assessment in full, by undertaking an in-depth analysis of Articles 47 and 52 of the Charter, the infringement of which had been argued by the applicant²⁴. In contrast to the cases cited above, however, the Court did not refrain from addressing the matter altogether, and examined the procedural aspect of the case in the context of the first (substantive) ground of the appeal (to reach the findings summarized above). As a result, the judgment summarizes, clarifies and completes the discussion that was revived in Uniwersytet Wrocławski, resulting in a comprehensive guideline about how the test underlying a private party’s obligation to be represented by an independent lawyer should be understood, and about the steps that the EU Courts are required to take should doubt arise as to whether that test is fulfilled.

*All opinions expressed, and errors made, in the present contribution are exclusively mine.

¹ That obligation does not apply in the context of preliminary ruling proceedings, which are governed by a specific rule of representation that essentially defers to the national rules applicable in the main proceedings. The discussion herein is therefore irrelevant to that procedure.  See Article 97(3) of the Rules of Procedure of the Court of Justice and Article 203(3) of the Rules of Procedure of the General Court. On the matter, see K. Lenaerts, K. Gutman, J.T. Nowak (eds), Eu procedural law, Oxford University Press, 2023.

² The first paragraph of Article 19 of the Statute states that “[t]he Member States and the institutions of the Union shall be represented before the Court of Justice by an agent appointed for each case […]. The third paragraph thereof provides that “[o]ther parties must be represented by a lawyer”, while the fourth one adds that “[o]nly a lawyer 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 may represent or assist a party before the Court” (emphasis added). See E. Gambaro, Art. 19, in C. Amalfitano, M. Condinanzi, P. Iannuccelli (eds), Le regole del processo dinanzi al giudice dell’Unione europea. Commento articolo per articolo, Napoli, 2017, p. 84 ss.

³ Court of Justice, 6 September 2012, Joined Cases C‑422/11 P and C‑423/11 P, Prezes Urzędu Komunikacji Elektronicznej and Poland v Commission, ECLI:EU:C:2012:553, para 23.

⁴ Court of Justice, 4 September 2025, Case C‑776/22 P, Studio Legale Ughi e Nunziante v EUIPO, ECLI:EU:C:2025:644. For other commentary see C. Kinsella, Rectification in Studio Legale Ughi e Nunziante v EUIPO (C-776/22 P): Procedural Reorientation or Revirement de jurisprudence?, Eu Law Live, 2025.

⁵ See, on that aspect, Opinion of Advocate General Bobek, 24 September 2019, Joined Cases C‑515/17 P and C‑561/17 P, Uniwersytet Wrocławski and Poland v REA, ECLI:EU:C:2019:774, points 31-50 and Opinion of Advocate General Emiliou, 24 February 2022, Case C‑110/21 P, Universität Bremen v REA, ECLI:EU:C:2022:133, points 44–50. In the judgment in the latter case, the Court overturned the General Court’s findings regarding the inadequacy of the representation of a university by one of its professors (who was representing the university outside his professional relationship, and who had been involved in the preparation of a project that became the object of the litigation before the EU Courts). See Court of Justice, 14 July 2022, Case C‑110/21 P, Universität Bremen v REA, ECLI:EU:C:2022:555.

⁶ Court of Justice, 4 February 2020, Joined Cases C‑515/17 P and C‑561/17 P, Uniwersytet Wrocławski and Poland v REA, ECLI:EU:C:2020:73, para 64.

⁷ See, for that scenario, judgement in Prezes Urzędu Komunikacji Elektronicznej and Poland v Commission, cit., para 24.

⁸ See also Opinion of Advocate General Richard de la Tour, 27 February 2025, Case C-776/22 P, Studio Legale Ughi e Nunziante v EUIPO, ECLI:EU:C:2025:123, point 51. For commentary see F. Bandini, Let Lawyers Be Lawyers: On Representation of Law Firms before the CJEU, (2025) RCE, p. 617 ss.

⁹ That shift having been observed in the judgments in Uniwersytet Wrocławski, cit., para 62 and Court of Justice, 24 March 2022, Cases C‑529/18 P and C‑531/18 P, PJ and PC v EUIPO, ECLI:EU:C:2022:218, para 65.

¹⁰ See in particular Court of Justice, 30 January 2024, Case C‑580/22 P, bonnanwalt v EUIPO, ECLI:EU:C:2024:101, paras 57-64; Court of Justice (order), 15 February 2023, Case C‑546/21 P, Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris v Parliament, ECLI:EU:C:2023:439, paras 36-43; and (order) 21 April 2023, Case C‑306/22 P, Kirimova v EUIPO, ECLI:EU:C:2023:338, paras 35-44.

¹¹ Judgment in PJ and PC, cit., paras 76-81.

¹² Ibidem, paras 88-90.

¹³ General Court, 10 October 2022, Case T-389/22, Studio Legale Ughi e Nunziante v EUIPO – Nunziante and Ughi (UGHI E NUNZIANTE), ECLI:EU:T:2022:662.

¹⁴ Ibidem, paras 15-18.

¹⁵ Article 58a of the Statute and Articles 170a and 170b of the Rules of Procedure of the Court of Justice.

¹⁶ Court of Justice (order), 8 May 2023, Case C‑776/22 P, Studio Legale Ughi e Nunziante v EUIPO, ECLI:EU:C:2023:441, paras 21-31. The appeal having led to the commented judgment was the second one having successfully passed the test of Article 58a of the Statute to challenge a decision of the General Court to dismiss an action due to the lack of independence of the legal representative. See also Court of Justice, 30 January 2024, Case C‑580/22 P, bonnanwalt v EUIPO, ECLI:EU:C:2024:101, para 21; and Court of Justice (order), 30 January 2023, Case C‑580/22 P, bonnanwalt v EUIPO, ECLI:EU:C:2023:126.

¹⁷ Judgment in Studio Legale Ughi e Nunziante v EUIPO, cit., para 64-65.

¹⁸ Ibidem, paras 67-69 and 84.

¹⁹ Ibidem, paras 70-75.

²⁰ Opinion in Studio Legale Ughi e Nunziante, cit., points 25 and 84-118, especially 110 and 116.

²¹ Opinion in Uniwersytet Wrocławski, cit., points 145 –158; Opinion in Universität Bremen, cit., points 90-115.

²² Judgment in Studio Legale Ughi e Nunziante v EUIPO, cit., para 76.

²³ Ibidem, para 81-82.

²⁴ Opinion in Studio Legale Ughi e Nunziante, cit., points 25 and 84-119.