Joined Cases C-515/17 P and C-561/17 P
Date of Judgement: 4 February 2020
Uniwersytet Wroclawski and Poland v Research Executive Agency (REA)
Both joined cases C-515/17 P and C-561/17 P concern Article 19 of the Statute of the Court of Justice with regards to the requirement of independence that attaches to the concept of a ‘lawyer’ within the meaning of the third paragraph of the Statute.
The Research Executive Agency (REA) concluded a grant agreement with the University of Wroclaw in connection with a research programme, which stated that: ‘the researcher who was employed on a full-time basis in connection with the subsidised activity was not authorised to receive any income except for that relating to his research work.’
The university of Poland sought to set aside the order of the General Court of the European Union of 13 June 2017 (Uniwersytet Wrocławski v REA (T‑137/16, not published, EU:T:2017:407) in which the court dismissed the action brought by the University of Wroclaw as manifestly inadmissible.
In this action the University of Wroclaw sought:
(1) Annulment of the decisions of the Research Executive Agency (REA) acting under the powers delegated by the European Commission, terminating the Cossar grant agreement and requiring the university to repay relevant sums and damages
(2) Reimbursement by the REA of the corresponding sums plus interest from the date of payment until the date of reimbursement
On the 24 September 2019, Advocate General Bobek stated that: “The General Court erred in law when it held that the existence of a teaching contract between an applicant and its legal representative meant that the requirement of independent legal representation was not satisfied.” The order under appeal should therefore be set aside.
The University of Wroclaw (Case C‑515/17 P) relied upon two grounds of appeal; (1) they alleged that the General Court erred in its interpretation of Article 19 of the Statute and (2) provided an insufficient statement as to the reasons in order under the appeal.
The Republic of Poland (Case C‑561/17 P) raised three grounds of appeal. They alleged that the General Court; (1) erred in its interpretation of that provision, (2) failed to observe the principles of legal certainty and effective judicial protection, and (3) provided an insufficient statement of reasons in that order.
Findings of the Court
Admissibility – To assess the nature and substance of the professional relationship between the University of Wroclaw and its legal representative, the General Court relied on elements of factual nature, the characterisation of which may be reviewed by the Court of Justice of the proper interpretation of Article 19 of the Statute.
Substance- It is clear from the provision in the third paragraph of Article 19 that the legal representation of a party not covered by the first two paragraphs of that article can be carried out only by a lawyer. Whereas, the parties covered by the first two paragraphs of Article 19 may be represented by an agent who may, if necessary, be assisted by an adviser or by a lawyer.
The reason for this is to prevent private parties from acting on their own behalf before the courts without an intermediary and, to ensure that legal persons are defended by a representative who is sufficiently distant from the legal person which he or she represents.
The task of representation by a lawyer, as referred to in paragraph 3 and 4 of Article 19 of the Statue must be carried out in the interest of sound administration of justice, the objective of that task, above all, as was also noted by the Advocate General (point 104, of his Opinion), to protect and defend the principle interests to the greatest possible extent, whilst acting in full independence and in line with the law and professional rules and codes of contact.
The Court recalled that the concept of ‘independence of lawyers’, in the specific context of that provision of the Statue is determined not only negatively, by the absence of an employment relationship, but also positively by reference to professional ethical obligations. The Court held that, the lawyer’s duty of independence is to be understood not as the lack of connection between the lawyer and his/her client, but the lack of connections which have a “manifestly detrimental effect on his/her capacity to carry out the task of defending his/her client, while acting in the client’s best interests and to the greatest possible extent.”
In the University of Wroclaw’s case, the court held that because the legal advisor was not defending the interests of the University, but was simply connected to the University under contract for providing lecturing services. This connection cannot be regarded as sufficient for a finding that the legal advisor was in a situation that had a “manifestly detrimental effect on his/her capacity to defend his/her client’s interests to the greatest possible extent”, in full independence.”
On the 4 February 2020, the Court of Justice, sitting as the Grand Chamber in their judgement held that, The General Court had erred in law in holding that the existence of a contract for the provision of lecturing services between a party and its lawyer infringes the requirement for a legal representative before the Courts of the European Union to be independent. Accordingly, the Court of Justice set aside the order under appeal and referred the case back to the General Court.
Date of Judgment: 5 February 2020
Staatssecretaris van Justitie en Veiligheid v J. e.a. (Enrôlement des marins dans le port de Rotterdam)
This case concerned the interpretation of Article 11(1) of Regulation 2016/399 (Schengen Borders Code) on the rules governing the movement of persons across borders within the EU.
The defendants were seamen and third-country nationals who entered the Schengen area through Schiphol International Airport in Amsterdam, before arriving at the sea port of Rotterdam. The purpose of this journey was to undertake work on moored ships. On several occasions, the seamen indicated their intention to sign on with the moored ship to Rotterdam Seaport Police, but the authority refused them an exit stamp on their travel documents on the grounds that it was unclear at which date the ship would actually leave the port and, subsequently, the Schengen area.
On appeal, the District Court of The Hague found in favour of the defendants who argued that without an exit stamp the duration of authorised stay of the seamen in the Schengen area would run out more quickly, and that the requirement to wait 180 days before re-entering the Schengen area would result financial loss. This decision was appealed by the State Secretary to the Council of State, who subsequently referred it to the Court of Justice.
The issue in question before the Court was whether Article 11(1) should be interpreted as meaning a third-country national, who previously entered the Schengen area, exits as soon as he signs on with a seagoing vessel, irrespective of whether and when he will leave that port on that ship. It was held that the term ‘exit’ shall be interpreted as holding when a third-country national signs on with a ship in a sea port of a Schengen area State, an exit stamp must be affixed to the seaman’s travel documents not at the time of his signing on, but when “the master of that ship notifies the competent national authorities of the ship’s imminent departure.”
Date of Judgment: 13 February 2020
Criminal proceedings against TX and UW (Audience en l’absence de la personne poursuivie)
This case concerned the interpretation of Article 8(1) and (2) of Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.
Criminal proceedings were brought against 13 individuals accused of being leaders and/or members of a criminal organisation in Bulgaria, whose purpose was to commit murder, theft, and various other offences. Two of the accused persons, TX and UW, were charged with participating in that criminal organisation.
During the trial of TX and UW over seven hearings were held and subsequently adjourned due to the absence of one of the accused persons. The Special Court for Criminal Cases was unable to determine whether the right of the accused person to be present at the trial was infringed if one of the hearings took place in their absence, despite the fact they were duly summoned, informed of the consequences of their non-appearance, and defended by a lawyer.
The Court of Justice held that under Article 8(1) and (2), where the accused person has been informed of his trial and of the consequences of not appearing, and where that person is represented by a lawyer, that individual’s right to be present at his trial is not infringed, regardless of whether he decided not to appear at one of the hearings or if it was due to a reason beyond his control. The latter situation was held contingent on the individual being informed of the steps taken in his absence following the hearing and on the individual deciding not to call the lawfulness of the courts’ steps into question. In the event that he does, the national court would potentially have to repeat the steps, for example, by conducting a further examination of a witness where the accused person is given the opportunity to participate.
Date of Judgement: 20 February 2020
Flightright v Iberia
The facts of the case concerned a flight from Hamburg to London with British Airways, and then another flight from London to Madrid then on to San Sebastian (Spain) with Iberia. However, the Madrid to San Sebastian flight was cancelled.
Passengers who booked the flight, lodged a claim for compensation before the Hamburg local court, in respect of the third leg of their journey, which was cancelled without the passengers being informed in due time. Their claim was lodged against Iberia LAE SA Operadora Unipersonal ‘Iberia’, an airline established in Madrid, Spain through a claims company called flightright GmbH established in Potsdam, Germany.
The claim for compensation was brought on the basis of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1)
The European Court of Justice held that, “where journeys with a confirmed single booking comprise of several connecting flights operated by separate air carriers, compensation for the cancellation of the final leg of the journey may be sought before the courts of the place of departure of the first leg.” The air carrier is under the obligation to carry a passenger from point A to point D, where a contract exists for carriage by air with a confirmed single ticket booking for the entire journey.
The Court highlighted that the operating airline, which has no contract with the passenger, can be regarded as acting on behalf of the person that concluded that contract and, which fulfils the obligations arising under the contract for carriage by air. Thus, in this case it is possible to sue the air carrier in charge of the final leg of the journey ‘Iberia’ before the court, which has territorial jurisdiction over the place of departure of the first leg of the journey, Hamburg.
The Croatian presidency wants the European Council to adopt a common position on air passenger rights by the end of June and, their hope is that a final version can be released after negotiations by the end of the year.
Advocate General Bobek’s Opinion in Case: 6 February 2020
RB v TÜV Rheinland LGA Products and Allianz IARD
The facts of the case concerned a German patient, who underwent a breast implant operation in 2006. The implants, which were manufactured by a French undertaking, Poly Implant Prothèse SA (PIP), which is now insolvent were later found to be defective. The implants were filled with an unauthorised industrial silicone instead of medical silicone.
The Advocate General considered (1) Whether the case was within the scope of EU law and that the Court of Justice had jurisdiction and (2) What EU law provision could lead to a finding of incompatibility with regards to the territorial limitation.
The Advocate General held that the case did fall within EU law, under product liability and medical devices, which are both partially harmonised under EU law. The starting principle for the regulation of the internal market is respect for regulatory diversity in matters not explicitly harmonised by EU law.
However, on the second point the Advocate General highlighted that the use of goods after they are moved from one Member State to another, is not regulated by free movement rules. If this were enough to trigger Article 18 TFEU’s independent applicability, then every Member State would be caught out by the provision. Nevertheless, he stated that this did not change the position that the insurance in place was only applicable to that of goods used in France.
In making his opinion, the Advocate General referred to the previous 2007 case of Schmitt C-219/15, which concerned liability of notified bodies’ patients, who had received defective breast implants. In the Schmitt case the court held that it is for national law to decide on the conditions of such liability.
Advocate General Bobek said in his opinion that: “In the absence of harmonisation, it is for Member States to regulate insurance policies applicable to medical devices used on their territory, even when those devices are imported from another Member State. France could legitimately choose to introduce a higher level of protection for patients and users of medical devices through more favourable insurance policies applying on its territory.”
 this objective can be seen in orders of 5 September 2013, ClientEarth v Council, C‑573/11 P, not published, EU:C:2013:564, paragraph 14; of 4 December 2014, ADR Center v Commission, C‑259/14 P, not published, EU:C:2014:2417, paragraph 25; and of 6 April 2017, PITEE v Commission, C‑464/16 P, not published, EU:C:2017:291, paragraph 27)
Contributors: Nadia Cook and Sheyda Rimmer, Legal Secondee’s at The UK Law Societies Joint Brussels Office