Judgment;Abstract — ECLI:EU:C:2020:73
Date: 2020-02-04
Language of the case: Polish
Court formation: Grand Chamber
Subject matter: Research and technological development
Procedure: Arbitration clause;Appeal - successful
Origin: Poland

summary, in order to comply with the third and fourth paragraphs of Article 19 of the Statute, an applicant must be represented by a lawyer who is duly authorised to practise before a national court of a Member State, as evidenced by the relevant certificate(s), and is a third party in relation to the applicant. In addition, the lawyer must not be precluded from acting in the context of the individual case either because of the existence of external pressure or by virtue of any other conflict of interest that is obviously discernible at the level of a reasonable hypothesis based on the given type of (present or past) relationship between the lawyer and the represented party. 2. Procedural dimension 145. Finally, I turn to the procedural consequences of any potential shortcomings in the legal representation of non-privileged applicants under Article 19 of the Statute. 146. As already described above, the case-law of the General Court considers a lack of independence on the part of a legal representative under the third paragraph of Article 19 of the Statute to constitute a substantive, non-remediable defect in the application that leads to the rejection of the application as manifestly inadmissible. (61) 147. I must admit that of all the aspects of the present appeal, I consider this proposition to be the most problematic, for two reasons in particular. 148. First, in the case-law interpreting Article 19 of the Statute (including the order under appeal), (62) there are a number of references to the conditions governing legal representation of non-privileged applicants being derived from the common traditions of the Member States. However, when it comes to the procedural consequences of a failure by a lawyer to comply with his professional or ethical rules, in particular those relating to conflicts of interests, the national rules and practice (at least those that I am aware of) appear to stand in stark contrast to what is proclaimed to derive from them at EU level. 149. On the one hand, defects in legal representation tend to be viewed as procedural defects in the Member States, which are clearly remediable. (63) Thus, if any such problem is detected by the relevant court, that court notifies the applicant in question, asking him to remedy the situation, and advising him of the consequences that might follow if he does not comply. 150. On the other hand, there also appears to be a clear tendency in the Member States not to question, to the detriment of the client, the validity of procedural acts submitted to a court when there is a conflict of interest between the lawyer and the client. Again, following a notice from the court, the lawyer might be asked to cease to act, or the applicant might be asked to appoint a different lawyer. (64) However, I fail to find inspiration in the legal orders of the Member States for a practice whereby, in cases of perceived or real failures in terms of professional ethics, a court not only assumes the role of a ‘disciplinary chamber’ adopting immediate sanctions, but then imposes those sanctions not on the lawyer, but on the applicant, by declaring his application manifestly inadmissible. 151. Second, such interpretation and judicial practice are clearly not compliant, in my view, with the guarantees under the first paragraph of Article 47 of the Charter and, more specifically, access to justice and an effective judicial remedy. (65) 152. I therefore cannot agree with the interpretation and practice of the General Court, admittedly endorsed by this Court, (66) whereby a defect in the independent legal representation of an applicant is considered a non-remediable defect of the application. 153. I would instead suggest that potential defects in legal representation should be considered procedural shortcomings of the application that can be remedied. Furthermore, where an EU Court detects a defect in legal representation, it should inform the applicant accordingly in order to provide him with an opportunity to remedy the issue. I cannot embrace the position according to which, in such a situation, the EU Courts may simply declare the application manifestly inadmissible, which brings the case to its definitive end. 154. That would mean, in practical terms, that whenever the General Court detects potential non-compliance with the requirements that apply to the status of ‘lawyers’ within the meaning of the third and fourth paragraphs of Article 19 of the Statute, it has a duty to inform the applicant accordingly, in line with Article 51(4) of its Rules of Procedure. (67) 155. The production of ‘the required documents within the time limit prescribed’ referred to in that provision cannot be interpreted rigidly as referring only to documents concerning the lawyer’s membership of the national bar, while what appears to be the real underlying problem with the party’s legal representation, and the consequences that may follow if it is not remedied, are not identified and communicated to the party concerned, leaving that party to second-guess what the perceived problem might actually be. Such an interpretation would not only be very formal, not to say formalistic, but it would also disregard the logic of the incremental evolution of the rules of procedure of the EU Courts (68) and, above all, the basic guarantee of an effective right of access to a court. (69) 156. Thus, the request sent to a party under Article 51(4) of the RPGC must inform the applicant not only of any further documents that are required, but also of the reasons why those documents are being requested, spelling out any potential doubts that the court might entertain concerning that party’s legal representation. It must inform the applicant if a change in his legal representative is required and for what reason, while clearly stating what procedural consequences will follow if the notice is not acted upon. Moreover, as also stated in that provision, the Registrar should set a reasonable time limit within which the applicant can rectify the situation. Naturally, any such deadline set by the Registrar pursuant to Article 51(4) of the RPGC starts to run and lapses independently of the initial time limit for bringing the action. 157. Only if the party does not react accordingly within the prescribed time limit can the General Court proceed to decide whether that renders the application inadmissible under the second sentence of Article 51(4) of the RPGC. (70) 158. Finally, for the sake of completeness it might be recalled that any potential change in legal representative does not entitle the applicant to submit a new set of pleadings. Similar to the appointment of a new lawyer following the exclusion of an agent, adviser or lawyer from ongoing proceedings before the General Court, (71) the newly appointed lawyer must take over the brief as it stands at the given stage of the proceedings. D. The present case 159. Applying the test that I have suggested above (72) to the present case I note, first, that compliance with the requirement under the fourth paragraph of Article 19 of the Statute does not seem to be contested. The legal representative of the University of Wrocław in the proceedings that led to the order under appeal appears to be duly authorised to practise before the Polish courts. 160. Second, the applicant being a legal person, it is also uncontested that the legal representative did not act, in the proceedings before the General Court, as an employed lawyer of the University of Wrocław. He was therefore clearly a third party in relation to his client. Moreover, it is undisputed that the contract at issue between the lawyer and the University of Wrocław concerned teaching, not the provision of legal services before the General Court. Thus, independently of whether the teaching contract has put the legal representative in a position of subordination or dependence vis-à-vis the university, what matters is that the subject matter of that contract simply has nothing to do with legal representation in the proceedings in question. 161. Third, as regards the requirement of independence, I note that it has not been suggested that the legal representative had been subject to any form of external pressure. As regards a possible conflict of interest, it can be understood that the General Court assumed that such a conflict existed when it stated that the civil law contract between the legal representative and the University of Wrocław produced a risk that his professional opinion might be at least partly influenced by his professional environment. (73) 162. In view of my suggestions above in points 139 and 140 of this Opinion as to how the issue of conflicts of interests should be approached, I cannot agree with that proposition. The contract at issue concerned (apparently part-time) teaching of classes in international private law. Beyond the existence of that contract, as well as a former affiliation with the university (both as a student and later as a lecturer), no financial or other links between the University of Wrocław and the legal representative were revealed that could give rise to reasonable doubts as to whether the legal representative pursued any other interests than those of the University of Wrocław. 163. In those circumstances, the General Court erred in law when it interpreted the concept of a lawyer under the third paragraph of Article 19 of the Statute and, by the same token, under Article 51(1) of the RPGC, as suggesting that such a link could put the independence of the lawyer into question. 164. In the light of the above, I conclude that the first ground of appeal in Case C‑515/17 P and the first ground of appeal in Case C‑561/17 P are well founded. The order under appeal should be set aside. VI. Costs 165. Because I suggest that the case on appeal in Case C‑515/17 P be referred back to the General Court, the decision on the costs of the parties should be reserved. 166. As regards the case on appeal in Case C‑561/17 P, and having regard to Article 184(3) of the Rules of Procedure, I suggest that the Court order the parties to the proceedings to bear their own costs. 167. In accordance with Article 140(1) and (3) of the Rules of Procedure, read in conjunction with Article 184(1) thereof, the Czech Republic and the Krajowa Izba Radców Prawnych should bear their own costs. VII. Conclusion 168. I suggest that the Court: – set aside the order of 13 June 2017, Uniwersytet Wrocławski v REA (T‑137/16, not published, EU:T:2017:407); – refer Case C‑515/17 P back to the General Court and order that the costs of the parties in that case be reserved; – order the parties in Case C‑561/17 P to bear their own costs; – order the Czech Republic and the Krajowa Izba Radców Prawnych to bear their own costs. 1 Original language: English. 2 Order of 13 June 2017, Uniwersytet Wrocławski v REA (T‑137/16, not published, EU:T:2017:407). 3 Order of 13 June 2017, Uniwersytet Wrocławski v REA (T‑137/16, not published, EU:T:2017:407). 4 Paragraphs 16 and 17 of the order under appeal. 5 Paragraph 18 of the order under appeal. 6 Paragraph 19 of the order under appeal. 7 Judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission (C‑422/11 P and C‑423/11 P, EU:C:2012:553). 8 Paragraph 20 of the order under appeal. 9 Paragraphs 21 and 22 of the order under appeal. 10 See, for example, order of the Court of 20 February 2008, Comunidad Autónoma de Valencia — Generalidad Valenciana v Commission (C‑363/06 P, not published, EU:C:2008:99) and orders of the General Court of 9 September 2004, Alto de Casablanca v OHIM — Bodegas Chivite (VERAMONTE) (T‑14/04, EU:T:2004:258, paragraph 11), and of 5 July 2006, Comunidad Autónoma de Valencia — Generalidad Valenciana v Commission (T‑357/05, EU:T:2006:188). See also orders of the General Court of 9 December 2013, Brown Brothers Harriman v OHIM (TRUST IN PARTNERSHIP) (T‑389/13, not published, EU:T:2013:691, paragraph 14), and of 14 November 2016, Neonart svetlobni in reklamni napisi Krevh v EUIPO (neonart) (T‑221/16, not published, EU:T:2016:673, paragraph 8). 11 See, for example, the Charter of core principles of the European legal profession & Code of conduct for European lawyers, Council of Bars & Law Societies of Europe, 2019. Article 2 concerns general principles that are ‘common to the national and international rules regulating the legal profession’ (see pp. 1 and 6). Independence is listed as first among them. 12 Judgment of 18 May 1982, AM & S Europe v Commission (155/79, EU:C:1982:157). 13 Council Regulation of 6 February 1962: First Regulation implementing Articles [101] and [102 TFEU] (OJ, English Special Edition 1959-1962, p. 87). 14 Judgment in AM & S Europe v Commission (155/79, EU:C:1982:157, paragraphs 21 and 22). 15 Ibidem, paragraph 24. Those provisions are the legal predecessors of the current Article 19 of the Statute. They contained slightly different wording and defined the legal representative allowed to represent non-privileged applicants before the Court simply as ‘an advocate member of the bar of one of the Member States’. 16 Judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:512, paragraph 28). 17 Judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:512, paragraphs 42, 43 and 45). My emphasis. 18 See for example, orders of 5 December 1996, Lopes v Court of Justice (C‑174/96 P, EU:C:1996:473); of 5 December 2013, Martínez Ferríz v Spain (T‑564/13, not published, EU:T:2013:650); of 8 May 2018, Spieker v EUIPO (Science for a better skin) (T‑92/18, not published, EU:T:2018:289), currently under appeal as Case C‑455/18 P; and of 27 September 2018, Sógor v Council and Others (T‑302/18, not published, EU:T:2018:621). 19 Order of 4 December 2017, Nap Innova Hoteles v SRB (T‑522/17, not published, EU:T:2017:881, paragraph 8). 20 Orders of 8 December 1999, Euro-Lex v OHIM (EU-LEX) (T‑79/99, EU:T:1999:312, paragraphs 28 and 29); of 19 November 2009, EREF v Commission (T‑94/07, not published, EU:T:2009:451, paragraph 17); and of 21 March 2011, Milux v OHIM (REFLUXCONTROL) (T‑139/10, T‑280/10 to T‑285/10 and T‑349/10 to T‑352/10, not published, EU:T:2011:98, paragraph 22). 21 Orders of 5 September 2013, ClientEarth v Council (C‑573/11 P, not published, EU:C:2013:564) and of 6 September 2011, ClientEarth v Council (T‑452/10, not published, EU:T:2011:420). 22 Order of 31 May 2013, Codacons v Commission (T‑120/13, not published, EU:T:2013:287, paragraph 11). 23 Order of 18 November 2014, Justice & Environment v Commission (T‑221/14, not published, EU:T:2014:1002, paragraphs 10 to 14). 24 Order of 20 November 2017, BikeWorld v Commission (T‑702/15, EU:T:2017:834). 25 Order of 23 May 2011, Prezes Urzędu Komunikacji Elektronicznej v Commission (T‑226/10, EU:T:2011:234, paragraph 21). 26 Judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission (C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraphs 33 to 34). See similarly orders of 18 November 2014, Justice & Environment v Commission (T‑221/14, not published, EU:T:2014:1002); of 14 November 2016, Dimos Athinaion v Commission (T‑360/16, not published, EU:T:2016:694); and of 8 April 2019, Electroquimica Onubense v ECHA (T‑481/18, EU:T:2019:227). 27 Judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission (C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraphs 24 and 25 and the case-law cited). See, however, order of 23 May 2011, Prezes Urzędu Komunikacji Elektronicznej v Commission (T‑226/10, EU:T:2011:234, paragraphs 16, 17 and 21). 28 Order of 30 May 2018, PJ v EUIPO — Erdmann & Rossi (Erdmann & Rossi) (T‑664/16, EU:T:2018:517), currently the subject of two pending appeals in PJ v EUIPO (C‑529/18 P) and PC v EUIPO (C‑531/18 P). 29 Ibidem, paragraph 59. 30 Order of 13 June 2017, Uniwersytet Wrocławski v REA (T‑137/16, not published, EU:T:2017:407, paragraph 20). 31 Above, points 37 to 40 of this Opinion. 32 See, for instance, the Charter of core principles of the European legal profession & Code of conduct for European lawyers, cited above in footnote 11, p. 7 (point 6) and p. 9 (principles (h) and (i) concerning respectively respect towards professional colleagues and for the rule of law and the fair administration of justice). 33 Compare especially judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission (C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraphs 24 and 25 and the case-law cited) with orders of 23 May 2011, Prezes Urzędu Komunikacji Elektronicznej v Commission (T‑226/10, EU:T:2011:234, paragraphs 16, 17 and 21), and of 30 May 2018, PJ v EUIPO — Erdmann & Rossi (Erdmann & Rossi) (T‑664/16, EU:T:2018:517). 34 As I noted earlier (point 29), that problem is linked to the other grounds of both appeals, namely to the second ground of the appeal of the University of Wrocław and to the second and third grounds of the appeal of the Republic of Poland. 35 See, for example, order of 20 November 2017, BikeWorld v Commission (T‑702/15, EU:T:2017:834, paragraph 35). 36 Practice directions to parties concerning cases brought before the Court (OJ 2014 L 31, p. 1). See, especially, under Section I, General Provisions, point 2 entitled ‘Representation of the parties before the Court’. Essentially reproducing the text of the fourth paragraph of Article 19 of the Statute, point 2 of those directions simply states that non-privileged applicants must be represented by a lawyer authorised to practise before a court of a Member State and that ‘the evidence of that capacity must be capable of being produced, on request, at any stage of the proceedings’. 37 See, for example, orders of the General Court of 14 October 2010, Varga and Haliu v Council (T‑296/10, not published, EU:T:2010:435), and of 13 November 2012, Hârsulescu v Romania (T‑400/12, not published, EU:T:2012:595). 38 An issue to which I shall return below, in points 149 to 153 of this Opinion. 39 See for example, order of 20 November 2017, BikeWorld v Commission (T‑702/15, EU:T:2017:834, paragraph 30). That being said, the practice seems to allow for some exceptions, as evidenced by the order of the Court of 5 September 2013, ClientEarth v Council (C‑573/11 P, not published, EU:C:2013:564, paragraphs 21 and 22). The General Court had previously declared the action filed in this case inadmissible because the applicant’s legal representative was one of its seven ‘trustees’. On appeal, the Court of Justice approved that conclusion, while noting that the General Court omitted to consider the fact that the legal representative had informed the General Court of a change in legal representation. That omission did not, nevertheless, affect the main conclusion of the Court of Justice, ‘although such a change was apparently impliedly regarded, in the orders of 9 November in Case T‑120/10 ClientEarth and Others v Commission and Case T‑449/10 ClientEarth and Others v Commission, as curing a defect within the meaning of Article 44 of the Rules of Procedure of the General Court’, with Article 44 being the legal predecessor of the current Article 51 of the RPGC. 40 Moreover, if the fourth paragraph of Article 19 of the Statute were to be taken literally, as a pure and unqualified renvoi to national rules and practice (without the reference to the concept of ‘representation’ by a third party more clearly articulated in the third paragraph of Article 19), would the fact that, for example, a lawyer may represent himself in a Member State also be sufficient to permit self-representation before the EU Courts? 41 Above, points 37 to 40. 42 See, in this sense, the Charter of core principles of the European legal profession & Code of conduct for European lawyers, cited above in footnote 11, p. 7, point 6, where the lawyer is described as, among other things, ‘an indispensable participant in the fair administration of justice’. See also p. 9, principle (i), ‘Respect for the rule of law and the fair administration of justice’. 43 See also the second paragraph, second sentence, of Article 47 of the Charter: ‘Everyone shall have the possibility of being advised, defended and represented.’ 44 Relying on the judgment of 18 May 1982, AM & S Europe v Commission (155/79, EU:C:1982:157) and subsequent case-law. 45 Or indeed a conflict between several clients of the same lawyer. See the Polish example quoted by the University of Wrocław, the Republic of Poland and the Krajowa Izba Radców Prawnych, namely Article 7(2) of the Kodeks Etyki Radcy Prawnego (Code of Ethics for Legal Advisers): ‘The legal adviser, in the exercise of his professional activities, must be free from any influence arising from his personal interests, from external pressure, and from interference from any party or for any reason. Instructions expressed by any person, suggestions or directions limiting his independence cannot influence the opinion that he gives in a case.’ See also, for instance, the Charter of core principles of the European legal profession & Code of conduct for European lawyers, cited above in footnote 11, especially Article 2.1. See also Thomas de Carranza Méndez de Vigo, S., ‘Principios fundamentales en el ejercicio de la profesión de abogado’, in Vila Ramos, B. (coord.), Deontología profesional del abogado, Dickinson, Madrid, 2013, pp. 35 to 50, pp. 37 and 38, or Sánchez Stewart, N., Manual de Deontología para Abogados, La Ley, Madrid, 2012. 46 Article 30(1) of the Code of Ethics for Legal Advisers states that: ‘A legal adviser cannot provide legal assistance to a client when, in the case in question or in a related case, there is a conflict of interest between the client and the legal adviser or a risk that such a conflict might arise, or when the professional activities concern the person or property of the legal adviser or of someone close to him, unless those activities concern claims, actions or interests that are in common with the client.’ 47 For instance in France, where no disciplinary procedure has been initiated in respect of a specific lawyer, the judge can be asked to order the lawyer (advocate) to cease to represent a client in a given case (Cour de cassation (Court of Cassation, France) judgment of 27 March 2001, n° 98-16.508). In Spain, the judge can warn the lawyer that it may be appropriate for him to cease to represent the client (Tribunal Supremo (Supreme Court, Spain), judgment of 18 November 2013, n° 841/2013, RJ 2014/3061). 48 See also the Charter of core principles of the European legal profession & Code of conduct for European lawyers, cited above in footnote 11, especially p. 8. 49 Above, point 87 of this Opinion. 50 Although clearly not the subject matter of the present case, I note that a rather restrictive view has been taken on what national entities are covered by the first paragraph of Article 19 of the Statute. That provision refers to ‘Member States’ without any further qualification or definition. The approach of the General Court, endorsed by this Court, appears to interpret the concept of a ‘Member State’ very narrowly, effectively excluding public entities, such as independent central bodies, but also municipalities or regions, from the possibility of appointing an agent in a case. See, for instance, orders of 20 February 2008, Comunidad Autónoma de Valencia — Generalidad Valenciana v Commission (C‑363/06 P, not published, EU:C:2008:99) and of 5 July 2006, Comunidad Autónoma de Valencia — Generalidad Valenciana v Commission (T‑357/05, EU:T:2006:188). See further, orders of 18 November 2014, Justice & Environment v Commission (T‑221/14, not published, EU:T:2014:1002), and of 14 November 2016, Dimos Athinaion v Commission (T‑360/16, not published, EU:T:2016:694). I must admit that I see little practical purpose in such a narrow interpretation. A number of public bodies are likely to have qualified administrative staff or legal departments that can, like the respective ministries, represent that public authority, without generating any further unnecessary costs for the public purse by having to hire external lawyers. Moreover, there is also the broader, general issue: EU law does not shy away from embracing a rather sweepingly broad definition of a ‘Member State’ when it comes to imposing duties and obligations flowing from EU law, as evidenced for example by what constitutes an ‘emanation of state’ (see judgments of 12 July 1990, Foster and Others (C‑188/89, EU:C:1990:313, paragraphs 17 to 20 and the case-law cited); of 10 October 2017, Farrell (C‑413/15, EU:C:2017:745, paragraphs 24 to 29 and the case-law cited); and of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, paragraph 45 and the case-law cited)), or by what bodies, other than States strictly speaking, may be liable for breaches of EU law (see judgment of 4 July 2000, Haim (C‑424/97, EU:C:2000:357, paragraphs 27 to 28 and the case-law cited)), but embraces a surprisingly narrow definitional approach when it comes to potential benefits and privileges granted under EU law to ‘Member States’. Of course, areas of substantive or institutional EU law are different from the interpretation of the first paragraph of Article 19 of the Statute. But is there any specific purpose behind such a differentiation? As this entire appeal demonstrates, case-law approaches and definitions can otherwise move across areas and fields of EU law with relative ease. 51 Also above, point 96. 52 Judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:512, paragraphs 47 to 48). 53 Above, points 59 to 67 of this Opinion. 54 It appears that the practice in the Member States varies widely in terms of whether employed lawyers are entitled to exercise regulated legal practice, to represent their employer in proceedings, to remain members of a national bar, or to enjoy legal privilege. See, for example, Marchandise, P., Jammaers, C., Macours, K., and Vandoorne, L., Déontologie et organisation générale de la profession de juriste d’entreprise. Théorie et cas pratiques de réflexion, Institut de Juristes d’Entreprise, Brussels, June 2018, p. 85, with the overview of each of the 28 Member States at pp. 86 to 94. 55 See judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission (C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraphs 10 to 12). 56 That, it appears, was the situation of the legal representative who represented the University of Wrocław in the proceedings that led to the order under appeal. A similar two-fold possibility appears to exist, for instance, in Ireland as regards solicitors, who must follow the Guide to Good Professional Conduct for Solicitors and whose profession is regulated by the Solicitors Acts 1954 to 2015. 57 See, for instance, as regards France, judgment of the Cour de cassation No 1497 of 16 September 2015 (14-17.842), or, in Ireland, section 212 of the Legal Services Regulation Act 2015 which, when commenced, will allow an employed barrister whose name is entered on the roll of practising barristers to provide legal services to his employer, including by appearing on behalf of that employer in a court, tribunal or forum for arbitration. 58 I cannot but acknowledge the complexity of the discussion on the nature of the role and profession of external lawyers on the one hand, and of employed in-house counsel on the other. See, for instance, Haeri, K., L’avenir de la profession d’avocat, Rapport confié par Monsieur Jean-Jacques Urvoas, Garde des Sceaux, Ministre de la Justice à Monsieur Kami Haeri, Avocat au Barreau de Paris, February 2017, pp. 72 to 73. 59 Above, points 103 to 113 of this Opinion. 60 By default, a rationally calculating EU institution or agency is likely to start its defence by questioning wherever possible with whatever information obtainable the ‘independence’ of the non-privileged applicant’s lawyer. In this way, more and more cases are likely to be assessed on this point, further expanding the cases of a ‘lack of independence’ into new factual scenarios, which naturally fuels more and more such inadmissibility objections, which then leads the court to enter into detailed discussions of facts and issues that are hardly its core business, gradually replacing any system of substantive judicial review with a true inadmissibility Ouroboros. 61 Above, points 68 to 78. 62 Paragraph 18 of the order under appeal. 63 See, for example, judgments of the Tribunal Constitucional (Constitutional Court, Spain) 199/2001 of 4 October (ES:TC:2001:199), and 213/1990, of 20 December (ES:TC:1990:213), and decision of the Ústavní soud (Constitutional Court, Czech Republic) Pl. ÚS-st. 42/15 of 8 October 2015 (CZ:US:2015:Pl.US-st.42.15.1). See also IV. ÚS 3638/15 of 28 February 2018 (CZ:US:2017:4.US.3638.15.1). 64 See, for example, the instances from France or Spain quoted above in footnote 47. 65 See also above, points 72 to 78 of this Opinion. In this context, I do not consider it necessary to enter into an analysis of any potential limitations under Article 52(1) of the Charter, as such practice simply extinguishes the essence of the right to an effective judicial remedy. I also note that the European Court of Human Rights (‘ECtHR’) held that an overly strict interpretation of national procedural rules on mandatory representation constituted a violation of Article 6(1) of the European Convention on Human Rights (‘ECHR’) and, more specifically, of the right of access to a court when a claim filed by an applicant — a practising lawyer — was dismissed, thereby depriving the applicant of a full examination of the merits of his allegations. See ECtHR, 11 February 2014, Maširević v. Serbia, (CE:ECHR:2014:0211JUD003067108, §§ 47 to 51). 66 See order of the Court of 5 September 2013, ClientEarth v Council (C‑573/11 P, not published, EU:C:2013:564), commented upon above in footnote 39. 67 A similar obligation would apply mutatis mutandis to the Court based on Article 119 of its Rules of Procedure. 68 This renders the interpretative logic already outlined above (at points 72 to 78) even more striking and dangerous. Again, is it not rather logical that the procedural rules do not provide for any possibility of remedying non-compliance with criteria that are not specified in the rules in the first place? 69 While also significantly departing from the ‘substance over form’ approach that the Court usually embraces when the interpretation of Article 47 of the Charter or the principle of effective judicial protection as applied to the Member State courts is concerned, asking those courts to interpret the relevant national procedural rules in a way that safeguards rather than denies access. See, for example, judgment of 12 June 2014, Peftiev and Others (C‑314/13, EU:C:2014:1645, paragraph 29); judgment of 15 September 2016, Star Storage and Others (C‑439/14 and C‑488/14, EU:C:2016:688, paragraphs 49 to 63); and judgment of 27 September 2017, Puškár (C‑73/16, EU:C:2017:725, paragraph 76). For its part, the ECtHR recalls that ‘“excessive formalism” can run counter to the requirement of securing a practical and effective right of access to a court under Article 6§1 of the [ECHR]. This usually arises in cases of a particularly strict construction of a procedural rule, preventing an applicant’s action from being examined on the merits, with the attendant risk that his or her right to the effective protection of the courts would be infringed’. ECtHR, 5 April 2018, Zubac v. Croatia (CE:ECHR:2018:0405JUD004016012, §§ 97 to 99 and the case-law cited). 70 See, similarly, Article 119(4) of the Rules of Procedure of the Court. 71 Under Article 55(3) of the RPGC. It might only be added that the entire Article 55 RPGC, which provides for the possibility of excluding an agent, adviser, or lawyer from proceedings, offers yet further confirmation that the current interpretation of Article 51(4) of the RPGC is questionable. If it is possible to replace an excluded lawyer, at any stage of the proceedings, why should it be conceptually impossible to replace a legal representative when it becomes clear that he does not satisfy the criteria of Article 19 of the Statute ab initio (namely, when the application was filed)? 72 Above, point 144. 73 Paragraph 20 of the order under appeal.