That is true, in principle, even where he is coordinator and head of the project that is the subject matter of the
disput
The University of Bremen (Germany) was appointed coordinator of a research consortium comprising several
European universities, carrying out interdisciplinary comparative law research in the field of tenancy law and
housing policy throughout the European Union.
For the purpose of obtaining EU financing for that research, the University of Bremen submitted a project proposal
to the European Research Executive Agency (REA). That proposal having been rejected, the university brought an
action before the General Court of the European Union.
The General Court dismissed that action as manifestly inadmissible.
The application had been signed by a professor who not only teaches at the University of Bremen but is also
appointed as coordinator and head of the project that is the subject of the proposal. According to the General Court,
the condition of independence of a lawyer, which, in its view, applies also to university teachers entitled to represent
litigants before the Courts of the European Union, was therefore not met.
The Court of Justice, with which the university lodged an appeal, sets aside, by its judgment delivered today,
the General Court’s order finding that the action was inadmissible.
The Court of Justice points out that the concept of ‘independence’ of a lawyer has recently evolved in relation to
representation before the Courts of the European Union, the predominant criterion applied in that regard now
being the protection and defence of the client’s interests. 1
According to the Court of Justice, in accordance with the objective of that task of representation, university
teachers must meet the same criteria of independence as those applied to lawyers.
Those criteria are determined, negatively, by the absence of an employment relationship between the
representative and his or her client, and positively, by reference to ethical obligations entailing, inter alia, the
absence of a connection which has a manifestly detrimental effect on the capacity of the lawyer to carry out the task
of defending his or her client while acting in that client’s interests to the greatest possible extent, in line with the law The Court of Justice finds in that regard that the existence of a contractual or statutory relationship between a university teacher and the university that he or she represents is insufficient for a finding that that university teacher is in a situation that prevents him or her from defending that university’s interests.
Unlike the situation of an in-house lawyer, the university professor in question is linked to the university which he
represents by virtue of a public-law statutory relationship. That status confers on him, according to the conditions
and rules of national law, independence in his capacity not only as a teacher and researcher, but also as a
representative of litigants before the Courts of the European Union. Furthermore, since legal representation is
not one of the tasks which that professor is called upon to perform within the university as a teacher or researcher,
that representation is in no way connected to his academic duties. It is therefore performed outside any relationship
of subordination with the university, even where he is called upon to represent it.
As regards the duties performed by the professor in question in the context of the project that is the subject matter
of the dispute, the Court of Justice finds that those duties meant that the professor shared common interests with
the University of Bremen. Nevertheless, such interests cannot suffice to establish that that professor was not
capable of duly carrying out the task of representation with which he was entrusted.
Since, moreover, no evidence has been put forward such as to indicate that those interests precluded legal
representation of the University of Bremen by that professor, the General Court erred in concluding that the action
was inadmissible on the ground that the University of Bremen was not duly represented.
The Court of Justice therefore refers the case back to the General Court for it to give judgment on the action
brought by the University of Bremen.
1 See in particular the judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C-515/17 P and C-561/17 P (see also Press Release No 11/20). In that judgment, the Court of Justice held that the mere existence of a civil-law contractual relationship between a lawyer and the university that he or she represents is not sufficient for a finding that that lawyer is in a situation that has a manifestly detrimental effect on his or her capacity to defend his or her client’s interests, in compliance with the condition of independence.
