Summaries of judgments: Ordre néerlandais des avocats du barreau de Bruxelles and Others v Council | Administration of the State Border Guard Service of Ukraine v EUIPO

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)

Judgment of the General Court (Grand Chamber) 2 October 2024, Case T-797/22 Ordre néerlandais des avocats du barreau de Bruxelles and Others v Council

Common foreign and security policy – Restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine – Prohibition on the provision of legal advisory services to the Russian Government and entities established in Russia – Fundamental role of lawyers in a democratic society – Right of lawyers to provide legal advisory services – Right to be advised by a lawyer – Articles 7 and 47 and Article 52(2) of the Charter of Fundamental Rights – Independence of lawyers – Rule of law – Proportionality – Legal certainty

Facts

The General Court (“GC”), dismissed an action brought by the Belgian Bar Association, as well as a certain number of individual lawyers, seeking to annul a Regulation adopted by the Council, which sought to restrict the provision of legal advisory services to the Russian Government, and entities, established in the Russian Federation.

In light of the military aggression carried out by the Russian Federation (“Russia”) against Ukraine, several restrictive measures have been adopted by the Council targeting persons, entities and bodies supporting actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.

Following the Russian invasion of Ukraine, the Council adopted, on 6 October 2022, Regulation 2022/1904, (hereinafter the “contested regulation”) which amended Regulation No 833/2014, establishing a prohibition to provide legal advisory services to the Russian Government, and entities.

The contested regulation specified that the prohibited “legal advisory services” included legal advice to customers in non-contentious matters, including commercial transactions and negotiations.  Conversely, the contested regulation expressly excluded from the scope of this prohibition the representation, advice and preparation of documents in the context of legal representation services, namely in proceedings before administrative agencies, courts, or in arbitral or mediation proceedings.

The contested regulation also established that lawyers may request an authorisation from the competent authorities of a Member State derogating the prohibition to provide legal advisory services. This authorisation may be granted if, on the one hand, the provision of these services is strictly necessary for the divestment or the wind-down of business activities in Russia and, on the other hand, if there is no reasonable grounds to believe that the services might be provided to the Government of Russia or have a military end-use.

Decision

The applicants brought an action for annulment under article 263 of the Treaty on the functioning of the European Union, against the contested regulation.

In this action, the applicants raised a first plea in law alleging an infringement of Articles 7 and 47 of the Charter of Fundamental Rights of the EU (“the Charter”). The applicants further raised a second plea in law concerning an interference with the independence of lawyers and with the values of the rule of law. Finally, the applicants raised a third plea in law arguing that the Council had breached the principle of legal certainty.

In their first plea, the applicants argued that the aforementioned prohibition infringed the fundamental right of access to legal advice from a lawyer, enshrined in Articles 7 and 47 of the Charter, which includes advice in both contentious and non-contentious matters. In this regard, the applicants contend that the right to seek legal advice is inseparable from the right of access to a lawyer in the context of judicial or administrative proceedings.  

Furthermore, the applicants maintained that the right to consult a lawyer, including in order to obtain legal advice and an assessment of one’s legal situation, is recognized in all the Member States and is an essential activity in a State governed by the rule of law.

The GC found that it did not emerge from the case law, that articles 7 and 47 of the Charter, grant a fundamental right for all persons to have access to and be advised by a lawyer other than in the context of existing or probable litigation. Additionally, the GC ruled that it had not been established that any such right arises from the constitutional traditions common to the Member States within the meaning of the Treaty on the European Union (“TEU”).

The GC thus concluded that the prohibition at issue did not infringe Article 47 of the Charter. The GC explained that in non-contentious matters, a lawyer assists a client in essentially financial and commercial transactions. As a rule, the nature of such activities is such that they take place in a context without any link with judicial proceedings and, consequently, fall outside the scope of the protection afforded by Article 47 of the Charter.  Regarding Article 7 of the Charter, the GC ruled that this provision did not guarantee a right of access to a lawyer, be it in judicial proceedings or in a non-contentious context and as such the prohibition at issue cannot constitute interference with a right deriving from that article.

Additionally, the applicants contended that the authorisation procedure allowing for an exemption to the prohibition gives rise to interference with the professional secrecy of lawyers enshrined in Article 7 of the Charter and Article 8 of the European Convention on Human Rights. According to the applicants, lawyers who apply for authorisation must disclose to the competent authority details relating to his client and the nature of the advice sought which directly interferes with the right to respect for communications between lawyers and their clients.

The GC ruled that the exemption from the prohibition, in itself, does not entail interference with the right guaranteed in Article 7 of the Charter. Indeed, the authorisation procedure does not suggest that a lawyer is required to share with the competent authorities, without his client’s consent, information covered by the professional secrecy. Additionally, the GC further reasoned that even assuming that the exemption authorisation does give rise to interference with the professional secrecy of lawyers enshrined in Article 7 of the Charter, this restriction would nevertheless be proportionate, being necessary to meet the objectives of general interest pursued by the prohibition and would therefore be lawful.  

In their second plea, the applicants argued that the requirement to apply for authorisation in order to provide legal advisory services interferes with the independence of lawyers, which is necessary in order to guarantee compliance with the values of the EU, enshrined in Article 2 TEU, such as democracy and the protection of human rights.

The GC dismissed the argument finding that the prohibition does not apply to services provided by lawyers linked with judicial proceedings, and that it therefore does not entail any interference with the right to an effective remedy guaranteed by Article 47 of the Charter. Accordingly, it cannot also be concluded that the prohibition is capable of interfering with the independence of lawyers, as recognised by the case law of the Court of Justice.

The applicants further contended that the provision of legal advice by lawyers, including in non-contentious matters, serves to ensure compliance with the rule of law. As a result, the prohibition at issue interfered with the values of the rule of law, including the principles of legal certainty, justice, access to justice and respect for human rights, endangering the role of lawyers in the promotion of the fundamental values enshrined in Article 2 TEU.

The GC dismissed this claim as unfounded judging that no rule of EU law, including Article 2 TEU, enshrines a fundamental right to consult a lawyer in non-contentious matters. The GC recalled that certain exception and exemption provisions limited the prohibition at issue. Taking these limitations into account the GC ruled that since the prohibition at issue did not entail any interference with the rights guaranteed by Articles 7 and 47 of the Charter, it likewise did not infringe the principles of access to justice, justice and respect for fundamental rights.

In their third plea, the applicants alleged that the provisions of the contested regulation establishing the prohibition of providing legal advisory services infringe the principle of legal certainty, as they are neither clear nor precise and afford no foreseeability as to how they will be applied. According to the applicants is not clear from the wording of the provision, which services fall within the scope of the prohibition at issue.

The GC dismissed the applicants’ argument ruling that even if the contested regulation merely identifies the broad categories of legal advisory services that are subject to the prohibition, Regulation No 833/2014 delimits the prohibition at issue precisely. The Court found that this regulation enables lawyers to distinguish between those legal advisory services, which fall outside the prohibition at issue, and those, which are subject to it, complying with the requirement of legal certainty.

In light of these findings, the GC thus rejected all pleas in law raised by the applicants dismissing the appeal in its entirety and upholding the contested regulation ruling the prohibition of providing legal advice in non-contentious matters to Russian authorities and entities to be lawful under European law.

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Judgment of the General Court in Case T-82/24, Administration of the State Border Guard Service of Ukraine v EUIPO (RUSSIAN WARSHIP, GO F**K YOURSELF)

Facts

The Administration of the State Border Guard Service of Ukraine (Kyiv, Ukraine) requests the General Court of the European Union to annul the decision of the European Union Intellectual Property Office (EUIPO) of 1st December 2023, which refused registration of the following figurative sign as an EU trade mark:

That mark is a war cry uttered by the Ukrainian border guard on Snake Island on 24 February 2022, the first day of the full-scale Russian invasion of Ukraine. Registration was sought for a very wide range of goods as well as for publishing, education, entertainment and sports services.

EUIPO refused registration on the ground that the mark is a political slogan devoid of any distinctive character for the goods and services at issue.

Decision

By its judgment, the General Court dismissed the action brought by the Administration of the State Border Guard Service of Ukraine.

The Court considers that the phrase used in the mark had been widely used and disseminated by the media, immediately after its first use, in order to rally support for Ukraine and had become very quickly a symbol of Ukraine’s fight against Russian aggression. Thus, that phrase was used in a political context, repetitively and with the aim of expressing and promoting support to Ukraine.

The Court observed that a sign is incapable of fulfilling the essential function of a trade mark if the average consumer does not perceive, in its presence, the indication of the origin of the goods or services, but only a political message. However, the phrase in question has been used very intensively in a non-commercial context (Russian aggression) and will necessarily be associated very closely with that context and at this recent historical moment, well known to the average EU consumer. It will therefore not be perceived by the relevant public as an indication of the commercial origin of the goods and services which it designates.