62020TO0727_RES
Case T‑727/20
Nigar Kirimova
v
European Union Intellectual Property Office
Order of the General Court (Fourth Chamber, Extended Composition), 9 March 2022
(Action for annulment – Representation by a lawyer who is not an independent third party with regard to the applicant – Inadmissibility)
Judicial proceedings – Application initiating proceedings – Formal requirements – Signature by a lawyer – Concept of ‘lawyer’ – Autonomous interpretation
(Statute of the Court of Justice, Art. 19, third paragraph; Rules of Procedure of the General Court, Art. 51(1))
(see paragraph 17)
Judicial proceedings – Application initiating proceedings – Formal requirements – Conditions relating to a signatory – Status of a third party in relation to the parties – Representation by a lawyer who is a member of an entity employing the party – Failure to observe the requirement of independence
(Charter of Fundamental Rights of the European Union, Art. 47; Statute of the Court of Justice, Art. 19, third paragraph)
(see paragraphs 18-22, 24-27, 31-33, 37, 46)
Judicial proceedings – Application initiating proceedings – Formal requirements – Conditions relating to a signatory – Status of a third party in relation to the parties – Representation by a lawyer who is not a third party – Inadmissibility – Rectification after expiry of the time limit for bringing an action – Not permissible
(Statute of the Court of Justice, Art. 19, third paragraph 3; Rules of Procedure of the General Court, Art. 78(6))
(see paragraph 47)
Résumé
Ms Kirimova, an Azerbaijani national, was a lawyer in a law firm. In order to be placed on the list of professional representatives at the European Union Intellectual Property Office (EUIPO), she requested an exemption from the requirement to be a national of one of the Member States of the European Economic Area. Following the refusal of that request by the Executive Director of EUIPO, Ms Kirimova brought an action before the General Court. The application was signed by a lawyer who was a member of the same law firm as that in which Ms Kirimova was working when the action was brought.
By its order, the Court, ruling in extended composition, dismissed the action as inadmissible. It notes that the applicant and her lawyer had a particularly close professional relationship and that both the lawyer and the law firm in which the latter works have a direct interest in the outcome of the present case, which relates directly to the profession practised by the applicant in the law firm. Accordingly, the Court holds that the requirement for the lawyer to be a third party independent of the applicant (
1
) is manifestly not satisfied.
Findings of the Court
First, the Court recalls that, in order to bring an action before it, a party must use the services of a third party, acting in full independence to best protect and defend the parties’ interests, especially their right to effective judicial protection. (
2
) Legal representation requires a relationship of trust based on a private choice of a contractual nature, the individual is free to choose his or her lawyer, who is free, in principle, to choose his or her clients. In that regard, any intervention in the relationship must be based on serious reasons which reveal a clear and imperative need to protect the applicant from his or her lawyer. Accordingly, the lawyers independence is 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 the principal while acting in the principal’s interests to the greatest possible extent.
Next, the Court states since the possibility for the EU Courts to dismiss applications as inadmissible is limited solely to cases where lawyers manifestly lack independence. The situations which are capable of preventing the lawyer from representing his or her principal must be of such a nature and degree as to make it obvious that the lawyer, has economic or personal ties, either with the dispute or with one of the parties, that call into question his or her genuine independence. In that regard, the Court points out that each situation must be examined on a case-by-case basis, taking into account the professional environment in which the lawyer works.
Lastly, the Court observes that, in the present case, the applicant and her lawyer had a particularly close professional relationship within the same law firm. In addition, the law firm and the lawyer repeatedly stated their interest in the request made by the applicant to EUIPO and in the outcome of the case, directly related to the career of the applicant within the firm, even claiming that the contested decision caused them damage. Consequently, the applicant’s lawyer could not, in such circumstances, be regarded as an independent third party and, therefore, could not present herself as an independent third party ‘lawyer’.
Furthermore, the fact that the link between the law firm and the lawyer was broken after the action was brought and that the applicant is now assisted by a second external lawyer has no bearing on the admissibility of the action. The Court points out, first, that the admissibility of the action must be assessed by reference to the situation prevailing when the application was lodged and, second, that the requirement relating to the representation by an authorised lawyer is not one of the requirements which can be rectified after expiry of the time limit for bringing an action. (
3
)
(
1
)	That requirement follows from the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union.
(
2
)	As guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union.
(
3
)	In accordance with Article 78(6) of the Rules of Procedure of the General Court