Source: EURLEX
Language: en
Format: md

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 27 February 2025 ([1](#Footnote1))

**Case C**‑**776/22 P**

**Studio Legale Ughi e Nunziante**

**v**

**European Union Intellectual Property Office (EUIPO)**

( Appeal – Action for annulment – Statute of the Court of Justice of the European Union – Article 19 – Representation of parties in direct actions before the Courts of the European Union – Representation of a law firm by a partner who is not the legal representative of that firm – Lawyer representing the appellant as a third party – Requirement of independence – Legal consequences of non-compliance with that requirement – No possibility of rectifying the application and inadmissibility of the action – Charter of Fundamental Rights of the European Union – Article 47 – Right to effective judicial protection – Article 52(1) – Limitation provided for by law )

  
  
  
  

I.      **Introduction**

1.        This appeal raises two issues relating to the representation of law firms in direct actions before the EU courts. The Court of Justice has held that those issues are significant with respect to the unity, consistency or development of EU law. ([2](#Footnote2))

2.        The first issue concerns the extent to which a law firm may be represented before the EU courts by a lawyer who is a partner in that firm, other than its legal representative. In the order of 10 October 2022, *Studio Legale Ughi e Nunziante* v *EUIPO* – *Nunziante and Ughi (UGHI E NUNZIANTE)**,* ([3](#Footnote3)) against which the present appeal has been brought, the General Court held that a partner in a law firm who is representing the law firm in which he or she practises does not satisfy the requirements of independence laid down in the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union (‘the Statute’), thus adopting a particularly strict interpretation of the authority to act which differs from the rules applicable in the majority of the legal systems of the Member States.

3.        The second issue concerns the legal consequences which the General Court attached to the appellant’s failure to comply with the requirement that its representatives be independent. The question arises whether, by dismissing the action as manifestly inadmissible without allowing the appellant to rectify its application, the General Court applied a rule of case-law which is contrary to the right of access to justice guaranteed by the first and second paragraphs of Article 47 of the Charter of Fundamental Rights of the European Union ([4](#Footnote4)) and to the principle of proportionality set out in Article 52(1) thereof.

4.        In the present Opinion, I shall propose that the Court of Justice uphold the appeal, set aside the order under appeal and refer the case back to the General Court.

5.        I shall explain why I consider that the General Court erred in law in presuming that the representatives concerned did not satisfy the requirement of independence without establishing the extent to which their status as partners in the law firm had a manifestly detrimental effect on their capacity to carry out the task of defending their client.

6.        In addition, I shall propose that the Court of Justice examine the third ground of appeal in so far as it raises an important procedural issue which it is now necessary to resolve. I consider that the rule according to which an application brought by a person whose representative does not satisfy the requirements of independence cannot be rectified, and the action must be dismissed as manifestly inadmissible, restricts the applicant’s right of access to justice in unreasonable conditions which are not compatible with the requirements set out in the first and second paragraphs of Article 47 and Article 52(1) of the Charter.

II.    **Legal context**

A.      **The Statute**

7.        Under the first to fourth paragraphs of Article 19 of the Statute of the Court of Justice, applicable to the General Court under the first paragraph of Article 53 thereof:

‘The Member States and the institutions of the [European] Union shall be represented before the Court of Justice by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer.

The States, other than the Member States, which are parties to the Agreement on the European Economic Area [of 2 May 1992 ([5](#Footnote5))] and also the EFTA Surveillance Authority referred to in that Agreement shall be represented in same manner.

Other parties must be represented by a lawyer.

Only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the [EEA Agreement] may represent or assist a party before the Court.’

8.        Article 21 of the Statute provides:

‘A case shall be brought before the Court of Justice by a written application addressed to the Registrar. The application shall contain the applicant’s name and permanent address and the description of the signatory, the name of the party or names of the parties against whom the application is made, the subject matter of the dispute, the form of order sought and a brief statement of the pleas in law on which the application is based.

The application shall be accompanied, where appropriate, by the measure the annulment of which is sought or, in the circumstances referred to in Article 265 of the [TFEU], by documentary evidence of the date on which an institution was, in accordance with those Articles, requested to act. If the documents are not submitted with the application, the Registrar shall ask the party concerned to produce them within a reasonable period, but in that event the rights of the party shall not lapse even if such documents are produced after the time limit for bringing proceedings.’

B.      **The Rules of Procedure of the General Court**

9.        Article 51 of the Rules of Procedure of the General Court concerns the ‘obligation to be represented’ in direct actions and provides:

‘1.      A party must be represented by an agent or a lawyer in accordance with the provisions of Article 19 of the Statute.

2.      The lawyer representing or assisting a party must lodge at the Registry a certificate that he is authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement, unless that certificate has already been lodged for the purposes of opening an account giving access to e-Curia.

3.      Where the party represented by the lawyer is a legal person governed by private law, the lawyer must lodge at the Registry an authority to act given by that person.

4.      If the document referred to in paragraph 2 or that referred to in paragraph 3 is not lodged, the Registrar shall prescribe a reasonable time limit within which the party concerned is to produce it. If the party concerned fails to produce the required document within the time limit prescribed, the General Court shall decide whether the non-compliance with the procedural requirement in question renders the application or written pleadings formally inadmissible or whether it leads to the lawyer being regarded as not representing or assisting the party concerned.’

10.      Article 78 of the Rules of Procedure, entitled ‘Annexes to the application’, provides, in paragraphs 5 and 6:

‘5.      The application shall be accompanied by the documents referred to in Article 51(2) and (3).

6.      If the application does not comply with the requirements set out in paragraphs 1 to 5, the Registrar shall prescribe a reasonable time limit within which the applicant is to produce the abovementioned documents. If the applicant fails to put the application in order within the time limit prescribed, the General Court shall decide whether the non-compliance with these conditions renders the application formally inadmissible.’

11.      Article 177 of the Rules of Procedure, applicable to proceedings relating to intellectual property rights (Title IV), states:

‘1.      An application shall contain:

…

(b)      particulars of the status and address of the applicant’s representative;

…

5.      The application shall be accompanied by the documents referred to in Article 51(2) and (3).

6.      … If an application does not comply with paragraphs 3 to 5, the Registrar shall prescribe a reasonable time limit within which the applicant is to put the application in order. If the applicant fails to put the application in order within the time limit prescribed, the General Court shall decide whether the non-compliance with the procedural requirement renders the appeal formally inadmissible.’

III. **The order under appeal**

12.      By application lodged at the Registry of the General Court on 1 July 2022, Studio Legale Ughi e Nunziante, a professional partnership of lawyers established in Rome (Italy), ([6](#Footnote6)) brought an action under Article 263 TFEU for annulment of the decision of the Fifth Board of Appeal of EUIPO of 8 April 2022, by which the Board upheld the revocation of the EU trade mark UGHI E NUNZIANTE for all services except legal services in Class 45 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended.

13.      Pursuant to Article 126 of its Rules of Procedure, the General Court considered that it was appropriate to give a decision by reasoned order, without continuing the proceedings on the substance of the case, on the ground that the action was manifestly inadmissible.

14.      The reason that action was dismissed was, essentially, that the appellant in the present case was a law firm which had appointed three lawyers who were practising as partners in that law firm to represent it before the General Court. In paragraphs 15 to 17 of the order under appeal, the General Court held that those lawyers were not independent third parties in relation to Ughi e Nunziante, which is a requirement under the third and fourth paragraphs of Article 19 of the Statute.

15.      As a basis for its assessment, in paragraphs 6 and 7 of the order under appeal, the General Court adopted a literal and contextual interpretation of the third and fourth paragraphs of Article 19 of the Statute and, in paragraphs 9 and 10 of that order, analysed the objectives pursued by that provision.

16.      Furthermore, the General Court recalled, first, in paragraph 12 of the order under appeal, that it follows from the case-law of the Court of Justice that the condition of the independence of a lawyer entails the absence of an employment relationship between the lawyer and his or her client, including where that client is a law firm and, secondly, in paragraph 13 of that order, that that condition requires not the absence of any connection whatsoever between the lawyer and his or her client, but only 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 the best interest of that client. It also stated, in paragraph 14 of that order, that the obligation to have recourse to a third party for the purposes of representation before the EU courts places the parties on the same footing as regards the presentation of their case before those courts.

17.      Lastly, in paragraph 18 of the order under appeal, the General Court pointed out that failure to comply with the obligation to provide representation by a lawyer is not one of the requirements which may be met after the action has been brought, in accordance with the second paragraph of Article 21 of the Statute and Article 78(6) of the Rules of Procedure.

IV.    **The procedure before the Court**

18.      By application lodged at the Registry of the Court of Justice on 20 December 2022, Ughi e Nunziante brought the present appeal against the order under appeal. The appellant is represented before the Court of Justice by four lawyers, namely the three lawyers who represented the appellant before the General Court and another lawyer, external to the law firm Ughi e Nunziante.

19.      By order of 8 May 2023 in *Studio Legale Ughi e Nunziante* v *EUIPO*, ([7](#Footnote7)) the Court of Justice allowed the appeal to proceed in part, in its second and third grounds of appeal.

20.      Ughi e Nunziante claims that the Court of Justice should annul the order under appeal, find that its legal representation before the General Court was valid, and refer the case back to the General Court to rule on the merits. In the alternative, it claims that the Court of Justice should find that it is entitled to continue with the proceedings with representation from a lawyer who satisfies the requirements of the third and fourth paragraphs of Article 19 of the Statute, and refer the case back to the General Court to rule on the merits. It also claims that EUIPO should be ordered to pay the costs.

21.      EUIPO contends that the Court should dismiss the appeal and order Ughi e Nunziante to pay the costs. The European Commission, which, by decision of the President of the of the Court of 18 September 2023, was granted leave to intervene in support of the form of order sought by EUIPO, also contends that the appeal should be dismissed, and that the appellant should be ordered to pay the costs.

V.      **Assessment**

22.      By its second ground of appeal, Ughi e Nunziante claims, in essence, that the General Court misinterpreted the rules governing the representation of non-privileged applicants before the EU courts, set out in Article 19 of the Statute and Article 51 of the Rules of Procedure, by holding that its application was signed by lawyers who are not ‘independent third parties’ in relation to Ughi e Nunziante.

23.      By its third ground of appeal, Ughi e Nunziante further submits that, in dismissing its action as manifestly inadmissible without allowing it to rectify its application, the General Court applied a procedural rule which did not respect either its right of access to justice guaranteed by Article 47 of the Charter or the principle of proportionality laid down in Article 52(1) of the Charter.

24.      For the reasons which I will now set out, I consider that the second ground of appeal is well founded in so far as the General Court erred in law in its assessment of the independence of the lawyers instructed by the appellant to represent it before the EU courts. I believe that the present case should be referred back before the General Court so that it can make that assessment in accordance with the case-law of the Court of Justice.

25.      I also consider that it would be useful and appropriate for the Court of Justice to examine the third ground of appeal, in so far as it raises an important procedural issue which, in my view, must be determined by the Court of Justice. In my view, the rule applied by the General Court, according to which an application cannot be rectified and the action is to be dismissed as manifestly inadmissible if the applicant’s representative does not have the requisite independence from the applicant, infringes the first and second paragraphs of Article 47 and Article 52(1) of the Charter.

A.      **The second ground of appeal, alleging misinterpretation of the criterion of independence of the representative for the purposes of Article 19 of the Statute**

1.      ***Arguments of the parties***

26.      By its second ground of appeal, Ughi e Nunziante claims, in essence, that the General Court misinterpreted Article 19 of the Statute and Article 51 of the Rules of Procedure in paragraphs 16 and 17 of the order under appeal. In that regard, the appellant raises two complaints.

27.      The first complaint concerns the application of the fourth paragraph of Article 19 of the Statute. The appellant submits that the General Court erred in law in holding that the action was not brought in accordance with that provision, since it had lodged the documentation establishing that the lawyers it had chosen to represent it were authorised to practise before the Italian courts.

28.      The second complaint relates to the conditions for the application of the third paragraph of Article 19 of the Statute, in particular in so far as it requires the party in question to be represented by a third party satisfying the requirements of independence laid down in the case-law of the Court of Justice.

29.      In the first place, the appellant submits that the situation at issue cannot be likened to a situation of self-representation in which the law firm represents itself through its legal representative. In that context, it claims that the analogy made by the General Court, in paragraph 16 of the order under appeal, with the order of 5 October 2017, *Hoyng Reimann Osterrieth Köhler Haft Monégier du Sorbier* v *EUIPO (We do IP.)**,*([8](#Footnote8))is irrelevant in so far as the applicant law firm in that case was represented by a lawyer who was not only a partner in that firm but was also its legal representative. The case which gave rise to that order therefore concerned the third party status of the lawyer who was a partner in that law firm, and not the independence of that lawyer.

30.      The appellant adds that the law firm Ughi e Nunziante is established as a ‘partnership not recognised as a legal person’ under Article 36 of the codice civile (Civil Code) and is an autonomous subject of the law, independent of its members. According to the case-law of the Corte suprema di cassazione (Supreme Court of Cassation, Italy), it is an organisational entity constituting an autonomous centre of interests with rights and obligations that are separate from those of its individual members, and which, while lacking legal personality, is a subject of the law governed by the agreements concluded between its members.

31.      In the second place, the appellant submits, in essence, that the partners whom it chose to represent it before the EU courts satisfy the requirement of independence.

32.      First, it recalls the premiss that the purpose of legal representation is to protect the interests of the client and, in particular, his or her access to the courts, and, in that context, that sanctions should be imposed only where it is clear that the representative is unable to carry out that task.

33.      In that regard, the appellant submits that the selection of a lawyer by the legal representative of a law firm, who is a qualified lawyer, is a matter of private choice made with full knowledge of the facts. In the present case, the appellant’s decision to instruct lawyers who are partners in the professional partnership Ughi e Nunziante was well-considered and conscious, since it was the appellant’s intention to preserve the continuity of its legal representation (as there had been no issues with its representation before the Italian courts and before the bodies of EUIPO) and to give precedence to the knowledge of those lawyers and the confidentiality of the case, which are legitimate interests.

34.      Secondly, the appellant criticises the General Court for basing its assessment on the axiom that a lawyer who is a partner in a law firm which he or she is representing does not, by definition, satisfy the requirement of independence.

35.      The appellant submits that, while the concept of ‘lawyer’ within the meaning of the third paragraph of Article 19 of the Statute must be interpreted independently, the criteria to establish a lawyer’s independence, namely the absence of an employment relationship and the reference to professional rules and codes of conduct, must be examined in the light of the relevant national legislation, especially in the absence of any EU rules of law on the matter.

36.      As regards the first criterion, the appellant submits that there is no relationship of employment or subordination between the professional partnership constituted by Ughi e Nunziante and the lawyers who are partners in that firm. The appellant states that, in Italy, the practice of the profession of lawyer is structurally incompatible with salaried employment. The present case must therefore be distinguished from that which gave rise to the order of 13 May 2020, *Pontinova* v *EUIPO – Ponti & Partners (pontinova)**,* ([9](#Footnote9)) in which the legal representative of Ponti & Partners, SLP, was an employee of that law firm, so there was an employment relationship between the lawyer and his client which was incompatible with the requirement of independence. In the present case, in accordance with Article 2(1) of legge n. 247 – Nuova disciplina dell’ordinamento della professione forense (Law No 247 – New rules governing the legal profession) ([10](#Footnote10)) of 31 December 2012, lawyers are to be self-employed. Registration with the bar association, which is required under Article 2(3) of that law in order to practise the profession of lawyer, is incompatible with any employment relationship.

37.      As regards the second criterion, the appellant submits that there is no connection which has a manifestly detrimental effect on the capacity of its lawyers to carry out the task of defending it. First of all, it states that the task of representation carried out by its members complies with the relevant national legislation and the codes of conduct of the profession, which impose the obligation of independence.

38.      Secondly, it states that the existence of a connection based on membership of a professional partnership is not sufficient, for the purposes of the case-law of the Court of Justice, to hold that the representatives in question are in a position which has a manifestly detrimental effect on their capacity to defend the interests of their client. Members of the professional partnership which constitutes Ughi e Nunziante are not subject to any controls over the legal services they provide, which distinguishes the case at issue from the case which gave rise to the judgment of 24 March 2022, *PJ and PC* v *EUIPO**,*([11](#Footnote11)) in which the associate lawyer was employed by the founding partner of the law firm and subject to the effective control of the latter. Furthermore, the status of associate and that of a partner in a law firm are not comparable and differ profoundly in terms of their autonomy and independence, which partners retain in their entirety, even in relation to the organisation they represent.

39.      Lastly, the appellant states, first, that being a member of the professional partnership Ughi e Nunziante does not give rise to any conflict of interest but, rather, involves having shared interests, which, according to the case-law of the Court of Justice, does not make a legal representative unable to defend his or her client. Secondly, there is nothing to indicate that, in their capacity as partners in the professional partnership which they are representing, they have been subject to any external pressure or interference from third parties capable of affecting their autonomy and independent judgment.

40.      EUIPO, supported by the Commission, disputes the appellant’s claims.

2.      ***Assessment***

(a)    ***The first complaint, alleging misapplication of the fourth paragraph of Article 19 of the Statute***

41.      I share the appellant’s view that the General Court erred in law in paragraph 17 of the order under appeal in holding that ‘the … action was not brought in accordance with the third and fourth paragraphs of Article 19 of the Statute’ even though it is not disputed that all its representatives satisfied the requirement set out in the fourth paragraph of Article 19 of the Statute. Those representatives were authorised to practise as lawyers before the Italian courts and had filed documents with the General Court establishing their capacity to do so.

42.      I would point out that, according to settled case-law, the conditions set out respectively in the third paragraph of Article 19 and the fourth paragraph of Article 19 of the Statute are cumulative, but also separate. The first condition, referred to in the third paragraph of Article 19 of the Statute, requires that non-privileged parties must be represented by a lawyer, while the second condition, referred to in the fourth paragraph of Article 19 of the Statute, requires that that lawyer be authorised to practise before a court of a Member State or of another State party to the EEA Agreement. ([12](#Footnote12))

43.      In so far as the authorisation of the representatives concerned to practise before a court of a Member State was not at issue, the General Court could not legitimately base its decision dismissing the action on the ground of manifest inadmissibility on the fourth paragraph of Article 19 of the Statute.

(b)    ***The second complaint, alleging misapplication of the third paragraph of Article 19 of the Statute***

44.      The second complaint raises the question of the representation of law firms before the EU courts for the purpose of the third paragraph of Article 19 of the Statute. The Court of Justice has identified two principles of case-law concerning the task of, and conditions for, providing legal representation to legal persons: the principle that representation must be provided by a third party, and the principle that the lawyer must fulfil the criterion of independence.

(1)    *The principles of case-law governing the representation of legal persons before the EU courts*

45.      I will not return to the origin of that case-law or to the many difficulties which have arisen from its implementation, which were explained perfectly by Advocate General Bobek in his Opinion in *Uniwersytet Wrocławski* *and Poland* v *REA*. ([13](#Footnote13)) It was Advocate General Bobek and Advocate General Emiliou, who delivered his Opinion in *Universität Bremen* v *REA*, ([14](#Footnote14)) who provided the impetus for the Court to ‘reorient’ its case-law. ([15](#Footnote15))

46.      As the case-law stands, the representation of a party by a ‘lawyer’ within the meaning of the third paragraph of Article 19 of the Statute must satisfy the following conditions.

47.      In the first place, a ‘party’ is not authorised to act on its own behalf before the EU courts, whatever that party’s standing, but must use the services of a third party. ([16](#Footnote16)) It is a procedural condition which is among the considerations of public policy which the Court is required to raise of its own motion. ([17](#Footnote17)) Since no derogation from or exception to that obligation is provided for by the Statute or Rules of Procedure of the Court of Justice, the Court considers that a lawyer who is authorised to practise before a national court cannot represent him or herself, ([18](#Footnote18)) and, in the case of a legal person, that a legal person cannot be represented in legal proceedings by their legal representative. ([19](#Footnote19)) Accordingly, contrary to the rules applicable to the legal representation of law firms before national courts, it is clear from the case-law of the Court that law firms cannot be represented in legal proceedings before the EU courts by their legal representative. ([20](#Footnote20))

48.      As the General Court rightly pointed out in paragraph 8 of the order under appeal, such representation by a lawyer must, on the one hand, prevent private parties from acting on their own behalf before the courts without using an intermediary and, on the other, ensure that legal persons are defended by a representative who is sufficiently distant from the legal person he or she represents, so as to ensure the sound administration of justice but, above all, to protect and defend to the greatest possible extent the principal’s interests, acting in full independence and in line with the law and professional rules and codes of conduct. ([21](#Footnote21))

49.      In the second place, that requirement of independence is defined in the light of two conditions. ([22](#Footnote22))

50.      The first condition requires that there be no employment relationship between the lawyer and his or her client (‘negative’ definition).

51.      The second condition refers to the lawyer’s professional ethical obligations (‘positive’ definition). According to the Court of Justice, that independence must be understood not as the absence of any connection whatsoever between the lawyer and his or her client, but only of those which have a manifestly detrimental effect on his or her capacity 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 and professional rules and codes of conduct. ([23](#Footnote23)) The Court considers that the EU judicature should carry out a restricted review and limit findings of inadmissibility in respect of actions to situations in which it is clear that the lawyer in question is not in a position to carry out the task of defending his or her client. The Court refers to ‘failure in the task of representation’, requiring the lawyer to be removed in the interests of the party he or she is representing. ([24](#Footnote24)) In my view, such case-law implies that the EU judicature must establish in a reasoned manner that there are serious and legitimate grounds for doubting the lawyer’s ability to carry out the task of representation. Only on such grounds should it be possible to limit the right of all individuals to be represented by a lawyer of his or her choosing. ([25](#Footnote25))

52.      It is in the light of those principles that the merits of the second complaint raised by the appellant should be examined.

(2)    *Application in the present case*

53.      It is apparent from the grounds set out in paragraph 15 of the order under appeal that the appellant, a professional partnership of lawyers, appointed three of its partners to represent it before the General Court. The authority to act issued by Ughi e Nunziante was signed by the legal representative of that professional partnership, Mr Roberto Leccese.

54.      Ughi e Nunziante explains that the appointment of its legal representatives is a matter of private choice and that that choice was made in a considered and conscious manner by legal professionals, having regard to the legitimate interests it was pursuing. In that regard, it claims that that choice was made to ensure continuity of the legal representation of that professional partnership and enabled it to be represented before the EU courts by lawyers whom it considered to be particularly well-qualified, since they had a detailed understanding of the case, having previously defended it before the Italian courts and the Board of Appeal of EUIPO, and they sought to defend the same interests. I would point out that, both before the Italian courts and before the Board of Appeal of EUIPO, the lawfulness of the representation of a law firm by one of its members appears to have been established. ([26](#Footnote26))

55.      However, in paragraph 17 of the order under appeal, the General Court held that the application was signed by lawyers who were not ‘independent third parties’ in relation to Ughi e Nunziante. The General Court based its decision on the presumption, set out in paragraph 16 of that order, that ‘the fact the lawyers are partners in the law firm which is the applicant in this case … is not compatible with the requirements of independence which they must meet in order to represent the applicant before the General Court’.

56.      In my view, however, such a general and peremptory statement, which results in stricter requirements for the representation of law firms before the EU courts, is not compatible with the case-law of the Court of Justice.

57.      First, while the Court of Justice relies on a presumption of independence on the part of the lawyer, ([27](#Footnote27)) the General Court, in this case, establishes a presumption of dependence.

58.      Secondly, while the Court of Justice requires it to be established that there is 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, it must be noted that, in the present case, the General Court did not establish that, and based its reasoning solely on the fact that the lawyers are partners in the professional partnership constituted by Ughi e Nunziante.

59.      Although the General Court refers by analogy to the order of 5 October 2017, *Hoyng Reimann Osterrieth Köhler Haft Monégier du Sorbier* v *EUIPO (We do IP.)*,([28](#Footnote28))I do not think that such a reference can form the basis of its reasoning.

60.      In the first place, in that order, the General Court held that a lawyer who is a partner in the law firm he or she is representing cannot be regarded as a third person who is providing, in full independence, such legal assistance as his or her client needs, in view of the conception of the lawyer’s role in the EU legal order. ([29](#Footnote29)) The General Court stated that the obligation imposed on a party, even where he or she is a lawyer, to have recourse to a third party to represent him or her before the EU courts places the parties on the same footing as regards the presentation of their case before those courts, irrespective of their professional standing, and therefore safeguards the principle of equal treatment. ([30](#Footnote30))

61.      I do not agree with that reasoning. If the aim referred to by the General Court is to safeguard the principle of equal treatment between the ‘parties’ and thus to ensure that they are placed on the same footing as regards the presentation of their case before the EU courts, then the General Court’s position seems to me, in reality, to be even stricter than that adopted in respect of any other ‘party’ to the proceedings. Indeed, that reasoning ignores the specific characteristics of law firms which distinguish them, in my view, from any other legal person. By necessity, a law firm is not on the same footing as regards the presentation of its case before the courts, not only because of its purpose as a law firm, which is to defend individuals and provide legal representation, but also because of its structure, which brings together legal professionals and, in particular, lawyers authorised to practise before the national courts, who are subject to their own professional rules and codes of conduct.

62.      In the second place, it is apparent from the procedural documents in the case which gave rise to the order of 5 October 2017, *Hoyng Reimann Osterrieth Köhler Haft Monégier du Sorbier* v *EUIPO (We do IP.)*, ([31](#Footnote31)) *that* the partner in the law firm was also the legal representative of that law firm. The case-law relied on by the General Court in that order applies, moreover, to situations in which an individual lawyer provided his or her own legal representation.

63.      In the present case, there is no such ambiguity as regards status, since Ughi e Nunziante is not being represented before the EU courts by its legal representative.

64.      Consequently, according to the analogy drawn by the General Court, the fact that a law firm is represented by its legal representative or by another lawyer who is a partner in that firm is sufficient, in either case, for a finding that that firm does not satisfy the representation requirements laid down in the third paragraph of Article 19 of the Statute.

65.      As is apparent from Research Note 24/005, only French legislation is based on such a strict interpretation of law firms’ authority to act. French law prohibits a lawyer who is a partner in a law firm from representing the law firm in which he or she practises and which is a party to proceedings, on the ground that he or she occupies a position both as director and as shareholder/member in all the legal forms which a law firm may adopt. A law firm is therefore required to seek representation from a lawyer outside the firm. However, French procedural rules seem to be the exception. It would appear that, in the majority of national legal systems, where procedural provisions require individuals to be represented by a lawyer, law firms are exempt from representation when they are parties to the proceedings, since they do not need to have recourse to a third party to defend their interests and can be represented by one of their own members. ([32](#Footnote32))

66.      The approach adopted by the General Court reflects a particularly strict interpretation of the requirements for the representation of law firms before the EU courts by creating a presumption of dependence, since it deprives those firms of the possibility of being represented by one of their partners other than the legal representative, irrespective of the legal form of those firms, the national rules governing the practice of the profession of lawyer ([33](#Footnote33)) and the manner in which partners collaborate and participate in those firms.

67.      Moreover, I note that the General Court did not give Ughi e Nunziante an opportunity to rebut that presumption of the dependence of the representatives concerned by allowing that law firm to provide clarification as to the nature and scope of its relationship with those representatives, who, I would point out, are not its legal representatives. The General Court could have adopted a measure of organisation of procedure, which it generally does in such cases. ([34](#Footnote34))

68.      It seems to me, however, essential that the appellant should be offered such an opportunity, given the legal consequences which the General Court draws from the failure to comply with the requirement of independence, to which I shall return in the context of the examination of the third ground of appeal.

69.      To my mind, giving it that opportunity is equally important in the light of the diversity of national rules governing the exercise of that profession, as has already been pointed out by the Court of Justice in the judgment of 19 February 2002, *Wouters and Others**,*([35](#Footnote35))and recently reiterated in the judgment in *PJ and PC* v *EUIPO**,* ([36](#Footnote36)) as well as in the order in *Kirimova* v *EUIPO*([37](#Footnote37)) *and the order* of 15 February 2023, *Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris* v *Parliament**.*([38](#Footnote38)) In those orders, where the Court was called upon to rule on the independence of legal representatives, it stated that ‘the profession of lawyer is exercised in various forms, ranging from sole practitioners to large international law firms, and it is for lawyers who enter into partnerships to define freely the detailed arrangements governing their collaboration and contractual relations, subject to compliance with the law, national professional rules and professional codes of conduct’. Accordingly, a lawyer may practise as a salaried lawyer in the employ of another lawyer, an association or firm of lawyers, or a public or private enterprise. ([39](#Footnote39)) Depending on the circumstances and the form taken by the law firm, a partner in that law firm may or may not be able to exert a decisive influence on the law firm’s decisions by virtue of his or her capital shareholding (owning shares) or in its administrative bodies (having voting rights).

70.      In the light of those considerations, I consider that the General Court erred in law in presuming that the representatives concerned did not satisfy the requirement of independence without establishing the extent to which their status as partners in the law firm had a manifestly detrimental effect on their capacity to carry out the task of defending their client.

71.      Consequently, I propose that the Court of Justice should hold that the second ground of appeal is well founded and refer that assessment back to the General Court.

72.      In that situation, it will be for the General Court to assess all of the information provided by the appellant concerning not only its legal form, the national rules governing the practice of the profession of lawyer in Italy and the manner in which partners collaborate and participate in those firms, but also the subject matter of the dispute.

73.      As to whether the situation at issue amounts to a case of self-representation, it should be borne in mind that Ughi e Nunziante is a legal entity which is independent of its members and is represented not by its legal representative, Mr Leccese, who is also responsible for managing the entity, ([40](#Footnote40)) but by three partners in that law firm, instructed by Mr Leccese, who are not employees of the professional partnership constituted by Ughi e Nunziante.

74.      It will also be necessary to examine whether there is an employment relationship between the appellant and its representatives which is capable of reversing the presumption of independence of those representatives. In that regard, the appellant states that, in accordance with the professional rules and codes of conduct applicable to the practice of the profession of lawyer in Italy, and in particular Article 2(1) and (3) of Law No 247/2012, the lawyers who represent it are not employees of that professional partnership. In fact, registration with the bar association would be incompatible with any subordinate employment relationship and lawyers practise as self-employed persons. The appellant adds that, in accordance with Article 4(1) of Law No 247/2012, being a partner in a law firm cannot adversely affect the autonomy, freedom and independence of thought or judgment of a lawyer in the performance of the task entrusted to him or her.

75.      Furthermore, as regards the question whether the ‘connection’ which exists between the appellant and its representatives is manifestly such as to undermine the requirement that those representatives be independent and constitute a ‘failure in the task of representation’, it is true that the Court has held that a lawyer with extensive administrative and financial powers within the legal person he or she represents, ([41](#Footnote41)) or who holds senior management positions within the legal person he or she represents, ([42](#Footnote42)) or who owns shares in the company which he or she represents and is the president of its board of administration ([43](#Footnote43)) is not sufficiently independent.

76.      In the present case, Ughi e Nunziante states that it takes the form of a professional partnership, that its representatives are not employees and that they are not subject to controls over the legal services they provide. Furthermore, it is apparent from the appeal that, in Italy, according to the codice deontologico forense (Lawyers’ code of professional conduct), lawyers must not undertake any professional activity which could lead to a conflict of interests. ([44](#Footnote44)) According to Italian case-law, a conflict of interests affects the validity of the authority to act not only if such a conflict is proven, but also if one could potentially arise, that is to say, if there is a conflict of interests connected, by definition, to the nature of the relationship and the subject matter of the dispute. ([45](#Footnote45))

77.      Lastly, it must be determined whether the fact that the representatives of Ughi e Nunziante carry on their professional occupation within that professional partnership is liable to have an effect on their independence because of the shared interest in the outcome of the dispute and the risk that their professional opinion would be, at least partly, influenced by their working environment. ([46](#Footnote46)) In its response, EUIPO states that the fact that there are shared interests between the party to a dispute and its lawyer does not necessarily mean that that party would receive the best legal protection. The Court held, in the judgment of 14 July 2022, *Universität Bremen* v *REA**,*([47](#Footnote47)) which was confirmed by the order in *Kirimova* v *EUIPO**,*([48](#Footnote48)) that the existence of shared interests in the outcome of a dispute between the principal and his or her representative is not sufficient to establish that that representative is not capable of duly carrying out the task of representation with which he or she is entrusted. In the present case, therefore, account must be taken of the subject matter of the dispute, which concerns an application for revocation of the EU trade mark UGHI E NUNZIANTE originally filed by Mr Giovanni Maria Ughi and Mr Giovanni Battista Nunziante (the former having died and the latter having set up another law firm: Nunziante Magrone).

78.      I believe that it is for the General Court to make that assessment in the light of all the evidence before it.

B.      **The third ground of appeal, alleging a disproportionate limitation on the right of access to the courts, contrary to first and second paragraphs of Article 47 and to Article 52(1) of the Charter**

79.      The third ground of appeal concerns, in essence, the compatibility with the Charter of the legal consequences of non-compliance with the requirement that the lawyer providing legal representation before the EU courts be independent.

1.      ***Arguments of the parties***

80.      Ughi e Nunziante submits that a procedural rule according to which an application which does not comply with the requirement of independence cannot be rectified, and the action must be dismissed as manifestly inadmissible, respects neither its right of access to justice, guaranteed by Article 47 of the Charter, nor the principle of proportionality set out in Article 52(1) thereof, nor the constitutional traditions common to the Member States and the national laws and practices of the Member States.

81.      The appellant claims, inter alia, that the General Court adopted an excessively strict interpretation of its Rules of Procedure, neglecting to take account of the fact the requirement relating to the independence of lawyers is the result of the development of the case-law and is not expressly mentioned in the third paragraph of Article 19 of the Statute.

82.      According to the appellant, it is paradoxical that, while it is possible to remedy non-compliance with rules governing the bringing of actions which are expressly set out in the relevant legislation, it is not possible to remedy a lack of legal representation arising from a failure to comply with the requirement that a lawyer be independent, even though this is not expressly provided for in that legislation, contrary to Article 52 of the Charter.

83.      EUIPO, supported by the Commission, disputes the appellant’s argument. In support of their arguments, EUIPO and the Commission rely essentially on the judgment in *PJ and PC* v *EUIPO**,* on which the General Court based its reasoning.

2.      ***Assessment***

84.      For the reasons which I shall set out, I consider that, in the present state of the law, the rule according to which an application brought by a person whose representative does not satisfy the requirements of independence cannot be rectified, and the action must be dismissed as manifestly inadmissible, restricts the applicant’s right of access to justice in conditions which are not compatible with the requirements set out in the first and second paragraphs of Article 47 and in Article 52(1) of the Charter.

85.      I therefore share the views already expressed in that regard by Advocate General Bobek in his Opinion in *Uniwersytet Wrocławski* *and* *Poland* v *REA*([49](#Footnote49)) and by Advocate General Emiliou in his Opinion in *Universität Bremen* v *REA**.*([50](#Footnote50))

86.      As is apparent from the judgments of 26 September 2024 *Ordre des avocats du Barreau de Luxembourg**,*([51](#Footnote51)) and of 2 October 2024, *Ordre des avocats à la cour de Paris and Couturier* v *Council**,*([52](#Footnote52)) delivered by the Court of Justice and the General Court respectively, the purpose of representation in legal proceedings (or, to use the terms of the case-law, the ‘fundamental role in a democratic society’ which ‘lawyers are assigned’) is to contribute to the proper administration of justice and to ensure the protection and defence of the interests of the individual. ([53](#Footnote53)) In my view, this objective requires that the individual be given the opportunity to rectify his or her application in the event that the representative chosen does not satisfy the requirement of independence.

87.      I would point out that the principle of the effective judicial protection of individuals’ rights under EU law is of cardinal importance and is a general principle of EU law stemming from the constitutional traditions common to the Member States. ([54](#Footnote54)) That principle is enshrined in both Article 47 of the Charter and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. ([55](#Footnote55))

88.      The ability to assert one’s rights effectively through the courts includes not only the right for everyone to have the possibility of being advised, defended and represented by a lawyer, but also the right of access to a court in order to pursue their claims and of access to a judicial review both in civil and criminal proceedings. ([56](#Footnote56)) The Court has recognised, moreover, that ‘the “party’s” obligation to be represented by a lawyer does not … undermine an applicant’s right to an effective remedy, its right of access to an impartial tribunal, or its right to a fair hearing’. ([57](#Footnote57)) It is necessary to avoid situations in which, paradoxically, the opposite occurs, and a party which is legally required to be represented by a lawyer finds itself definitively barred from access to the courts because of an error in its choice of lawyer which it is impossible for that party to remedy. Such a situation is not acceptable.

89.      Admittedly, the right of access to justice does not appear to be an absolute prerogative, since it may be subject to limitations through the imposition of conditions of admissibility. In accordance with Article 52(1) of the Charter, those limitations must be provided for by law, respect the essence of that right and, in compliance with the principle of proportionality, be appropriate and necessary to meet objectives of general interest or the need to protect the rights and freedoms of others. ([58](#Footnote58)) I would point out in that context that, in accordance with settled case-law, the requirement that any limitation on the exercise of a fundamental right must be provided for by law implies that the act which permits the interference with that rights must itself define the scope of the limitation on the exercise of the right concerned. ([59](#Footnote59))

90.      Those conditions are cumulative.

91.      I note, however, that the rule according to which an application cannot be rectified, and the action must be dismissed as manifestly inadmissible, if the applicant’s representative does not have the requisite independence from the applicant is a limitation which is not expressly provided for by law and seems to me to be essentially based on case-law.

92.      In the first place, neither the Statute nor the Rules of Procedure, mentions the requirement relating to the independence of lawyers or a fortiori the legal consequences of non-compliance with that requirement.

93.      The third paragraph of Article 19 of the Statute, to which Article 51(1) of the Rules of Procedure refers, merely provides that non-privileged parties ‘must be represented by a lawyer’. The Statute therefore makes no reference to the requirement of independence of lawyers, whereas in practice, the case-law has made it a condition of admissibility. Such a situation may cause some confusion for individuals as to the conditions of their legal representation before the EU courts. Admittedly, the Court acknowledges that the limitation of a fundamental right may be formulated in terms which are sufficiently open to be able to adapt to different scenarios and keep pace with changing circumstances. ([60](#Footnote60)) However, I do not think that the third paragraph of Article 19 of the Statute can be interpreted as making the admissibility of the application subject to the condition that the representative must offer every guarantee of independence, without disregarding the principles of legal certainty and the protection of legitimate expectations, which require that procedural provisions must be sufficiently clear and precise and that their application must be sufficiently foreseeable by those subject to them. ([61](#Footnote61))

94.      I note that the condition that a lawyer must be authorised to practise before a national court and the condition relating to the lawfulness of his or her authority to act are the subject of express provisions in the fourth paragraph of Article 19 of the Statute and in Article 51(2) and (3) of the Rules of Procedure. As Advocate General Bobek noted in his Opinion in *Uniwersytet Wrocławski and Poland* v *REA*, ([62](#Footnote62)) there is nothing to prevent the formulation of a test in order to make the potential consequences of a choice of legal representative foreseeable to applicants. ([63](#Footnote63))

95.      In the second place, as regards the Practice Rules for the Implementation of the Rules of Procedure of the General Court of 20 May 2015 ([64](#Footnote64)) (‘the PRI’), as amended on 17 October 2018, ([65](#Footnote65)) those provisions stated, in point 78 thereof, that ‘the representative lodging a document via e-Curia [which was the case here] must satisfy all the requirements laid down in Article 19 of the Statute *and* must, if he is a lawyer, have the requisite independence from the party he represents’. ([66](#Footnote66))

96.      Although, in accordance with the sixth recital and with point 104 of the PRI, ([67](#Footnote67)) the Registrar must ensure compliance with those rules and with the provisions of the Statute and the Rules of Procedure, the PRI cannot be regarded as a ‘law’ within the meaning of Article 52(1) of the Charter. The PRI were adopted pursuant to Article 224 of the Rules of Procedure by the President and the Registrar of the General Court and are intended to explain, detail and supplement certain provisions of the Rules of Procedure in the interests of transparency, legal certainty and the proper implementation of the Rules of Procedure. ([68](#Footnote68)) According to the fourth recital thereof, ([69](#Footnote69)) the PRI must enable the parties’ representatives to take account of matters which the EU courts must take into consideration, particularly those relating to the lodging of procedural documents. That is evidenced by the use of the coordinating conjunction ‘and’ in point 78 of the PRI, which includes a reference to the requirement of independence of lawyers identified by the General Court and the Court of Justice in their case-law.

97.      It is true that the PRI are a means of providing information to individuals and their representatives, since they are published in all the official EU languages in the *Official Journal of the European Union*, together with the Rules of Procedure. However, I do not believe that that information is sufficiently complete and transparent. According to the case-law, a lack of independence on the part of a legal representative constitutes a non-remediable bar to proceedings, even though, first, the concept of ‘independence’ is not easy to define and, secondly, there is no indication of the legal consequences attached to that lack of independence. In that regard, although the PRI set out exhaustively, in points 101 to 103 and Annexes 1 to 3, ([70](#Footnote70)) the cases in which applications may or may not be rectified by the Registrar, it must be stated that there is no mention of cases in which the application has been brought by a person whose representative does not satisfy the requirements of independence. ([71](#Footnote71))

98.      The fact that the PRI were recast on 10 July 2024 ([72](#Footnote72)) does not affect that conclusion. Point 73 of the PRI now provides that ‘the representative must satisfy all the requirements laid down in Article 19 of the Statute *and* must, if he is a lawyer or university teacher, have the requisite independence from the party he represents’. ([73](#Footnote73)) However, the PRI do not define the procedural consequences of non-compliance with the requirement of independence of lawyers.

99.      It must therefore be concluded, in the light of all those factors, that that condition of admissibility, which has the effect of preventing access to the courts, is not provided for by law within the meaning of Article 52(1) of the Charter.

100. However, the applicant should be clearly informed of this, especially in an environment in which there is a diversity of requirements for representation before the national courts and the appeal bodies of specialised EU bodies and agencies. ([74](#Footnote74))

101. Those considerations are, in principle, sufficient for a finding that the General Court infringed the first and second paragraphs of Article 47 and Article 52(1) of the Charter, in the light of the cumulative nature of the conditions laid down in the latter article.

102. However, I would like to make two additional remarks.

103. First, I believe that the rule of case-law according to which an application brought by a person whose representative does not satisfy the requirements of independence cannot be rectified, and the action must be dismissed as manifestly inadmissible, could impair the essence of the right to an effective judicial remedy before the EU courts. If the applicant is not allowed to rectify its application, it finds itself unable to seek a judicial review by the competent court of the decision of the Board of Appeal of EUIPO addressed to it. ([75](#Footnote75))

104. Secondly, I feel that that rule is not appropriate in the light of the objective it pursues and exceeds the limits of what is necessary for the smooth conduct of the proceedings.

105. Although the main purpose of representation by an independent lawyer is to ensure that the interests of the individual are protected and defended to the greatest possible extent, ([76](#Footnote76)) such a rule contradicts that objective since it automatically renders the action brought by the individual inadmissible, without that being necessary for the smooth conduct of the proceedings. The purpose of the principles which the Court has laid down is to remove the representative in the interests of his or her client, and not to remove the client’s access to the courts. Consequently, that rule seems to me to be, figuratively speaking, a cure which is worse than the disease, since the individual, who alone – so far as the Court is concerned – is party to the proceedings, is deprived of the possibility to correct a defect in his or her representation, while his or her lawyer is a priori no more than ‘an intermediary for [him or her]’. ([77](#Footnote77)) The limitation at issue seems to me to be all the more restrictive in so far as the individual is deprived of any possibility of contesting a decision and effectively making known his or her views in subsequent proceedings before the EU courts. Such a situation clearly creates a lacuna in the judicial protection of natural and legal persons before the EU courts, which affects the necessary coherence of the system of judicial protection provided for by EU law. ([78](#Footnote78))

106. That analysis is in line with the case-law of the European Court of Human Rights concerning compliance with Article 6(1) ECHR.

107. According to the European Court of Human Rights, the ‘right to a tribunal’ enshrined in Article 6 ECHR guarantees to individuals an effective right of access to the courts for the determination of their civil rights and obligations. ([79](#Footnote79)) It acknowledges, however, that that right is not absolute and may be subject to limitations, in particular where the conditions of admissibility of an appeal are concerned. ([80](#Footnote80)) In that context, the European Court of Human Rights examines whether the procedural rule at issue entails ‘manifestly unreasonable consequences’ and amounts to a disproportionate interference with applicants’ right of access to the courts. ([81](#Footnote81)) In its judgment of 11 February 2014, *Maširević v. Serbia*, ([82](#Footnote82)) the European Court of Human Rights held that an excessively strict interpretation of national procedural rules on compulsory representation constitutes an infringement of Article 6, and in particular of the right to a tribunal, where the appeal lodged by the appellant, in that case, a practising lawyer, is declared inadmissible, thus depriving the latter of a full examination of the merits of his allegations. ([83](#Footnote83))

108. As can be seen from the comparative analysis carried out in Research Note 24/005, a majority of Member States thus provides that the validity of procedural acts is not affected if they are performed in disregard of the rules relating to the requirement of independence when representing a law firm, since such validity cannot be called into question. Once again, French civil and administrative law differ in providing that such a failure constitutes a substantive defect which can lead to the appeal being dismissed as inadmissible. However, in administrative law, that defect can be remedied during the course of the proceedings, ([84](#Footnote84)) since the Conseil d’État (Council of State, France) holds that an appeal may be declared inadmissible only after the court has invited the person who filed the appeal to rectify it. ([85](#Footnote85))

109. In the light of all those factors, I consider that the rule according to which an application brought by a person whose representative does not satisfy the requirements of independence cannot be rectified, and the action must be dismissed as manifestly inadmissible, restricts the applicant’s right of access to justice in conditions which are not compatible with the requirements set out in the first and second paragraphs of Article 47 and Article 52(1) of the Charter.

110. I understand that that conclusion is contrary to the considerations adopted by the Court of Justice in paragraphs 87 to 90 of the judgment in *PJ and PC* v *EUIPO**,* which were relied on not only by the General Court in paragraph 18 of the order under appeal, but also by EUIPO and the Commission in their responses and statements in intervention.

111. In that judgment, the facts and context of which are relatively similar to those of the present case, the Court of Justice held that the procedural rule at issue did not infringe Article 47 of the Charter.

112. First of all, the Court considered that effective judicial protection of a natural person is ensured by the right of that person to bring an action before the EU courts against the annulment decision of the Board of Appeal of EUIPO. ([86](#Footnote86)) However, taking into account the considerations set out in points 87 and 88 of this Opinion, I think that the Court, in that case, adopted an excessively restrictive interpretation of the right to effective judicial protection.

113. Secondly, as regards the possibility of regularisation, the Court pointed out that, although the Statute and the Rules of Procedure provide for the possibility of regularising an application which does not comply with certain formal requirements, failure to comply with the obligation to provide representation by a lawyer authorised to practise before a court of a Member State or of another State party to the EEA Agreement is not one of the requirements which may be met after the action has been brought, in accordance with the second paragraph of Article 21 of the Statute and Article 78(6) of the Rules of Procedure. ([87](#Footnote87)) In that regard, the Court merely referred to two previous decisions, namely the orders of 27 November 2007, *Diy-Mar Insaat Sanayi ve Ticaret and Akar* v *Commission**,*([88](#Footnote88))and of 20 February 2008, *Comunidad Autónoma de Valencia* v *Commission**,*([89](#Footnote89)) which concerned situations in which it was clear that the conditions expressly set out in the third and fourth paragraphs of Article 19 of the Statute were not satisfied. In the first case, the application had been signed by two Turkish lawyers, who were therefore not authorised to practise before a court of a Member State or of a State party to the EEA Agreement, ([90](#Footnote90)) while in the second case, the application had been signed by a person who, although a member of a legal service, was not a lawyer.

114. Lastly, the Court of Justice pointed out that although, under Article 55(3) of the Rules of Procedure, ([91](#Footnote91)) an individual may replace the representative originally appointed with a new representative where the General Court has excluded the former for conduct which is incompatible with the dignity of the General Court or with the requirements of the sound administration of justice, no provision of the Statute or of the Rules of Procedure obliges the General Court or the Court of Justice to notify the individual of a failure to comply with the requirement of independence or to give him or her the opportunity to appoint a new representative in the course of the proceedings. ([92](#Footnote92))

115. While it is true that no provision of the Statute or of the Rules of Procedure obliges the Court of Justice or the General Court to notify the individual of a failure to comply with the requirement of independence or to give him or her the opportunity to appoint a new representative in the course of the proceedings, that follows solely from the fact that that requirement is not laid down in any of those provisions.

116. In my view, that is far too formalistic an interpretation of the Rules of Procedure, as summarised by Advocate General Bobek in points 75 and 76 of his Opinion in *Uniwersytet Wrocławski and Poland* v *REA*: ([93](#Footnote93))

‘… Failure to comply with relatively clearly stated requirements is remediable. By contrast, failure to comply with a requirement that is not explicitly laid down in the procedural rules, namely the “independent” lawyer requirement under the third paragraph of Article 19 of the Statute, leads to the action being declared inadmissible, with the General Court insisting on the fact that a lack of independence on the part of a legal representative constitutes an absolute bar to the proceedings … The (procedural) requirements that are clearly stated (and which one could therefore expect a reasonably diligent lawyer to comply with) are remediable, whereas the (equally procedural) requirements that are not clearly stated (and thus more difficult to expect even reasonably diligent lawyers to comply with), are not remediable’.

117. I will conclude by stating that Advocate General Roemer had already reached the same conclusion in his Opinion in the case which gave rise to the judgment of 16 February 1965, *Barge* v *High Authority**:*([94](#Footnote94)) ‘not every breach of the express formal provisions of the Rules of Procedure renders the application inadmissible. *This is a fortiori the position as regards failure to observe procedural principles, which are not expressly laid down in the Rules of Procedure*’. ([95](#Footnote95)) Advocate General Roemer thus set out the reasons why it was not right, ‘in the interests of the smooth running of the proceedings’, to apply to the proceedings before the Court of Justice the strict principles advocated by the High Authority, preferring instead to use the Rules of Procedure to provide a starting point for arguments in favour of a ‘liberal view’. ([96](#Footnote96))

118. In the light of all those considerations, I am therefore of the view that the General Court erred in law by applying the rule that an application cannot be rectified, and that the action must be dismissed as manifestly inadmissible, if the appellant’s representative does not enjoy the requisite independence from the appellant, a rule which infringes the first and second paragraphs of Article 47 and Article 52(1) of the Charter.

119. Accordingly, I propose that the Court of Justice should hold that the third ground of appeal, alleging infringement of the first and second paragraphs of Article 47 and of Article 52(1) of the Charter, is well founded.

120. On the basis of my analysis, I suggest that the Court should uphold the second and third grounds of appeal and set aside the order under appeal.

VI.    **Referral of the case back to the General Court**

121. In accordance with the first paragraph of Article 61 of the Statute, if a decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

122. In the present case, I consider that the Court of Justice does not have at its disposal the elements necessary to give a final ruling on the merits of the action, which would involve an examination of elements that were neither assessed by the General Court in the order under appeal nor argued before the Court of Justice.

123. Accordingly, I consider it necessary to refer the case back to the General Court, with costs reserved, so it can rule on the dispute in its entirety.

VII. **Conclusion**

124. In the light of all of the foregoing considerations, I propose that the Court of Justice should rule as follows:

(1)      The order of the General Court of the European Union of 10 October 2022, *Studio Legale Ughi e Nunziante* v *EUIPO – Nunziante and Ughi (UGHI E NUNZIANTE)* (T‑389/22, EU:T:2022:662), is to be set aside.

(2)      The case is to be referred back to the General Court of the European Union.

(3)      The costs are reserved.

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[1](#Footref1)      Original language: French.

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[2](#Footref2)      See order of 8 May 2023, *Studio Legale Ughi e Nunziante* v *EUIPO* (C‑776/22 P, EU:C:2023:441).

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[3](#Footref3)      T‑389/22, ‘the order under appeal’, EU:T:2022:662.

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[4](#Footref4)      ‘The Charter’.

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[5](#Footref5)      OJ 1994 L 1, p. 3; ‘the EEA Agreement’.

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[6](#Footref6)      ‘The appellant’ or ‘Ughi e Nunziante’.

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[7](#Footref7)      C‑776/22 P, EU:C:2023:441.

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[8](#Footref8)      T‑345/17, EU:T:2017:710.

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[9](#Footref9)      T‑76/19, EU:T:2020:212.

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[10](#Footref10)      GURI No 15 of 18 January 2013, p. 1; ‘Law No 247/2012’.

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[11](#Footref11)      C‑529/18 P and C‑531/18 P, ‘the judgment in *PJ and PC* v *EUIPO*’, EU:C:2022:218.

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[12](#Footref12)      See order of 15 February 2023, *Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris* v *Parliament* (C‑546/21 P, EU:C:2023:123, paragraph 29 and the case-law cited).

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[13](#Footref13)      Joined Cases C‑515/17 P and C‑561/17 P, EU:C:2019:774, points 31 to 78.

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[14](#Footref14)      C‑110/21 P, EU:C:2022:133, points 44 to 69.

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[15](#Footref15)      See judgment of 14 July 2022, *Universität Bremen* v *REA* (C‑110/21 P, EU:C:2022:555, paragraph 67).

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[16](#Footref16)      See order of 21 April 2023, *Kirimova* v *EUIPO* (C‑306/22 P, ‘the order in *Kirimova* v *EUIPO*’, EU:C:2023:338, paragraph 29 and the case-law cited).

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[17](#Footref17)      See judgment of 8 February 2024, *Pilatus Bank* v *ECB* (C‑256/22 P, EU:C:2024:125, paragraphs 36 and 38).

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[18](#Footref18)      See order of 10 October 2017, *Mladenova* v *Parliament* (C‑405/17 P, EU:C:2017:747, paragraphs 12 to 15 and the case-law cited).

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[19](#Footref19)      See the order in *Kirimova* v *EUIPO* (paragraphs 29 and 30 and the case-law cited).

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[20](#Footref20)      See, in that regard, Research Note 24/005 drawn up by the Research and Documentation Directorate of the Court of Justice of the European Union in December 2024 on the representation of law firms before national courts (‘Research Note 24/005’), from which it is apparent that, in a majority of Member States, a law firm may be represented in legal proceedings by a lawyer who is a member of that firm, regardless of his status as a partner, associate or employee.

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[21](#Footref21)      See the order in *Kirimova* v *EUIPO* (paragraphs 30 and 31 and the case-law cited), and judgments of 4 February 2020, *Uniwersytet Wrocławski and Poland* v *REA* (C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraphs 61 and 62), and of 14 July 2022, *Universität Bremen* v *REA* (C‑110/21 P, EU:C:2022:555, paragraphs 46 and 47).

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[22](#Footref22)      See the order in *Kirimova* v *EUIPO* (paragraph 32 and the case-law cited).

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[23](#Footref23)      See the order in *Kirimova* v *EUIPO* (paragraph 33), and order of 15 February 2023, *Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris* v *Parliament* (C‑546/21 P, EU:C:2023:123, paragraph 34 and the case-law cited), and judgment of 14 July 2022, *Universität Bremen* v *REA* (C‑110/21 P, EU:C:2022:555, paragraphs 52 and 58 and the case-law cited).

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[24](#Footref24)      See the order in *Kirimova* v *EUIPO* (paragraph 34), and order of 15 February 2023, *Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris* v *Parliament* (C‑546/21 P, EU:C:2023:123, paragraph 35 and the case-law cited). As Advocate General Emiliou pointed out in his Opinion in *Universität* *Bremen* v *REA* (C‑110/21 P, EU:C:2022:133, point 67), that second criterion relates to obvious situations in which there is no doubt that the legal representative may not act in the best interests of the party whom he or she represents.

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[25](#Footref25)      In criminal matters, see, inter alia, ECtHR, 20 October 2015, *Dvorski v. Croatia* (CE:ECHR:2015:1020JUD002570311, §§ 76 to 82).

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[26](#Footref26)      As regards representation before the Italian courts, see Article 86 of the codice di procedura civile (Code of Civil Procedure), as well as judgments of the Corte suprema di cassazione (Supreme Court of Cassation) No 22439/2009 of 22 October 2009 and No 4628/1997 of 23 May 1997. As regards representation before EUIPO, Article 119(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1) provides that ‘no person shall be compelled to be represented before [EUIPO]’. Nevertheless, it follows from a combined application of Article 119(3) and Article 120(1) of that regulation that legal persons having their principal place of business or their establishment in the European Economic Area (EEA) may be represented before EUIPO by an employee, provided that the employee is a lawyer qualified in one of the Member States of the EEA and having his or her place of business within the EEA.

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[27](#Footref27)      The Court of Justice presumes that lawyers, whether they practise individually or as an associate or partner in a firm, all satisfy the same requirements of independence (see order of 15 February 2023, *Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris* v *Parliament* (C‑546/21 P, EU:C:2023:123, paragraph 38 and the case-law cited)).

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[28](#Footref28)      T‑345/17, EU:T:2017:710.

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[29](#Footref29)      See order of 5 October 2017, *Hoyng Reimann Osterrieth Köhler Haft Monégier du Sorbier* v *EUIPO (We do IP.)* (T‑345/17, EU:T:2017:710, paragraph 9, referring to judgment of 6 September 2012, *Prezes Urzędu Komunikacji Elektronicznej and Poland* v *Commission* (C‑422/11 P and C‑423/11 P, EU:C:2012:553), and paragraph 11).

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[30](#Footref30)      See order of 5 October 2017, *Hoyng Reimann Osterrieth Köhler Haft Monégier du Sorbier* v *EUIPO (We do IP.)* (T‑345/17, EU:T:2017:710, paragraph 10).

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[31](#Footref31)      T‑345/17, EU:T:2017:710.

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[32](#Footref32)      That is the case, in particular, under German, Spanish, Italian, Austrian, Polish, Romanian and Slovakian law. For example, Article 86 of the Italian Code of Civil Procedure provides that ‘in proceedings where professional legal representation is required, if the party or his or her representative is a qualified lawyer, they may defend themselves without it being necessary to appoint another lawyer’.

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[33](#Footref33)      It is apparent from Research Note 24/005 that, in Austria, for example, where there is no requirement that lawyers be independent, certain rules governing the organisation of the practice of the profession of lawyer in the form of a firm, in particular the representation of law firms, are intended specifically to reconcile the operation of those firms with the general requirement that lawyers be independent.

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[34](#Footref34)      A study of the case-law of the General Court shows that it can, within extremely short time limits, request the applicant to specify the nature and scope of the connections that it has with its representative. See, in particular, the order of 9 March 2022, *Kirimova* v *EUIPO* (T‑727/20, EU:T:2022:136), in which the General Court requested the applicant to indicate, within a very short period of time, any employment relationship that she might have with her lawyer (the application was made on 7 December 2020, the applicant replied to the request for information on 20 January 2021 and the order of inadmissibility was adopted on 9 March 2022). See also order of 25 July 2023, *Malmendier* v *Council* (T‑832/22, EU:T:2023:448, paragraph 8), in which the applicant admitted, in his reply to a question put by the General Court, that signing the application himself was an error in the light of the requirements under Article 19 of the Statute.

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[35](#Footref35)      C‑309/99, EU:C:2002:98, paragraph 99 and the case-law cited.

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[36](#Footref36)      See paragraph 79.

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[37](#Footref37)      See paragraph 37 and the case-law cited.

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[38](#Footref38)      C‑546/21 P, EU:C:2023:123, paragraph 38 and the case-law cited.

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[39](#Footref39)      See, for example, Article 8 of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ 1998 L 77, p. 36).

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[40](#Footref40)      See the annexes to the appeal.

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[41](#Footref41)      See order of 29 September 2010, *EREF* v *Commission* (C‑74/10 P and C‑75/10 P, EU:C:2010:557, paragraphs 50 and 51).

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[42](#Footref42)      See, to that effect, order of 6 April 2017, *PITEE* v *Commission* (C‑464/16 P, EU:C:2017:291, paragraphs 25 and 35).

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[43](#Footref43)      See order of 4 December 2014, *ADR Center* v *Commission* (C‑259/14 P, EU:C:2014:2417, paragraph 27).

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[44](#Footref44)      See, in that regard, Article 24(1) of the Lawyers’ code of professional conduct.

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[45](#Footref45)      See, inter alia, judgment of the Corte suprema di cassazione (Supreme Court of Cassation) No 28427/2023 of 11 October 2023.

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[46](#Footref46)      See, by analogy, judgment of 4 February 2020, *Uniwersytet Wrocławski and Poland* v *REA* (C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 68).

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[47](#Footref47)      C‑110/21 P, EU:C:2022:555, paragraph 66. That judgment marks a reversal of the case-law. In the judgment of 6 September 2012, *Prezes Urzędu Komunikacji Elektronicznej and Poland* v *Commission* (C‑422/11 P and C‑423/11 P, EU:C:2012:553), the lawyers were employed by an entity connected to the party they were representing. The Court held that the employment relationship between those lawyers and that entity, even if that entity was formally separate from the party that the lawyers were representing, was liable to affect their independence since the interests of that entity were largely the same as those of the appellant. In the Court’s view, there was a risk that the professional opinion of those lawyers would be, at least partly, influenced by their working environment (paragraph 25).

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[48](#Footref48)      See the order in *Kirimova* v *EUIPO* (paragraph 41).

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[49](#Footref49)      Joined Cases C‑515/17 P and C‑561/17 P, EU:C:2019:774, points 77 and 78.

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[50](#Footref50)      C‑110/21 P, EU:C:2022:133, points 91 to 115.

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[51](#Footref51)      C‑432/23, EU:C:2024:791.

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[52](#Footref52)      T‑798/22, EU:T:2024:671.

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[53](#Footref53)      See judgments of 26 September 2024, *Ordre des avocats du Barreau de Luxembourg* (C‑432/23, EU:C:2024:791, paragraph 50 and the case-law cited), and of 2 October 2024, *Ordre des avocats à la cour de Paris and Couturier* v *Council* (T‑798/22, EU:T:2024:671, paragraph 54 and the case-law cited).

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[54](#Footref54)      See judgments of 5 November 2019, *ECB and Others* v *Trasta Komercbanka and Others* (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 55 and the case-law cited), and of 20 April 2021, *Repubblika* (C‑896/19, EU:C:2021:311, paragraph 51).

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[55](#Footref55)      Signed in Rome on 4 November 1950; ‘the ECHR’.

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[56](#Footref56)      See judgment of 8 December 2022, *Orde van Vlaamse Balies and Others* (C‑694/20, EU:C:2022:963, paragraph 60 and the case-law cited).

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[57](#Footref57)      See order of 6 October 2011, *Campailla* v *Commission* (C‑265/11 P, EU:C:2011:644, paragraph 9).

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[58](#Footref58)      See, by analogy, judgment of 26 September 2024, *Ordre des avocats du Barreau de Luxembourg* (C‑432/23, EU:C:2024:791, paragraph 67).

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[59](#Footref59)      See judgment of 8 December 2022, *Orde van Vlaamse Balies and Others* (C‑694/20, EU:C:2022:963, paragraph 35 and the case-law cited).

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[60](#Footref60)      See judgment of 8 December 2022, *Orde van Vlaamse Balies and Others* (C‑694/20, EU:C:2022:963, paragraph 35 and the case-law cited).

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[61](#Footref61)      See judgment of 11 September 2019, *Călin* (C‑676/17, EU:C:2019:700), relating to the rules for the application of a time limit for bringing an action for revision of a final judgment (paragraph 50 and the case-law cited).

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[62](#Footref62)      Joined Cases C‑515/17 P and C‑561/17 P, EU:C:2019:774.

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[63](#Footref63)      See the Opinion of Advocate General Bobek in Joined Cases *Uniwersytet Wrocławski and Poland* v *REA* (C‑515/17 P and C‑561/17 P, EU:C:2019:774, point 65).

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[64](#Footref64)      OJ 2015 L 152, p. 1.

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[65](#Footref65)      OJ 2018 L 294, p. 23.

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[66](#Footref66)      Emphasis added.

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[67](#Footref67)      In the 2015 version.

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[68](#Footref68)      See the first and fourth recitals of the 2015 PRI.

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[69](#Footref69)      In the 2015 version.

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[70](#Footref70)      In the 2018 version.

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[71](#Footref71)      In accordance with points 101 to 103, Annex 1 concerned ‘requirements non-compliance with which is grounds for not serving the application’, Annex 2 related to ‘procedural rules non-compliance with which justifies delaying service’ and lastly, Annex 3 concerned ‘procedural rules non-compliance with which does not prevent service’.

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[72](#Footref72)      OJ L, 2024/2097.

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[73](#Footref73)      Emphasis added.

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[74](#Footref74)      Indeed, while Ughi e Nunziante explains that it was in the interests of continuity in its representation that it appointed the three partners who represented it before the Italian courts and the Board of Appeal of EUIPO, such continuity is not compatible with a system of legal representation for law firms that is not uniform between those parties.

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[75](#Footref75)      See judgment of 25 November 2021, *État luxembourgeois (Information on a group of taxpayers)* (C‑437/19, EU:C:2021:953, paragraph 94), in which the Court held that the essence of the right to an effective remedy enshrined in Article 47 of the Charter includes, among other aspects, the possibility, for the person who holds that right, of accessing a court or tribunal with the power to ensure respect for the rights guaranteed to that person by EU law.

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[76](#Footref76)      By way of illustration, Article 55(1) and (3) of the Rules of Procedure allows the General Court to exclude a representative whose conduct is incompatible with the dignity of the General Court or with the requirements of the proper administration of justice, while leaving it open to the party to appoint a new representative.

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[77](#Footref77)      See order of 8 June 2005, *Nuova Agricast* v *Commission* (T‑151/03, EU:T:2005:204, paragraph 29).

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[78](#Footref78)      See, along the same lines, in my view, judgment of 9 July 2020, *Czech Republic* v *Commission* (C‑575/18 P, EU:C:2020:530, paragraph 82 and the case-law cited).

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[79](#Footref79)      See ECtHR, 23 October 1996, *Levages Prestations Services v. France* (CE:ECHR:1996:1023JUD002192093, §§ 40 and 44).

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[80](#Footref80)      According to the case-law of the European Court of Human Rights, those conditions must be applied with some degree of flexibility and without excessive formalism, taking into account their object and purpose; they must not impair the very essence of that right, but must pursue a legitimate aim and be proportionate to that aim. See, in particular, ECtHR, 14 November 2000, *Annoni di Gussola and Others v. France* (CE:ECHR:2000:1114JUD003181996, §§ 48 and 53).

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[81](#Footref81)      See ECtHR, 14 November 2000, *Annoni di Gussola and Others v. France* (CE:ECHR:2000:1114JUD003181996, § 53).

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[82](#Footref82)      CE:ECHR:2014:0211JUD003067108.

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[83](#Footref83)      See ECtHR, 11 February 2014, *Maširević v. Serbia* (CE:ECHR:2014:0211JUD003067108, §§ 47 to 51). In the case giving rise to that judgment, the Supreme Court of Serbia had in fact refused to examine the appeal lodged by the appellant, a lawyer by profession, on the grounds that he could not represent himself. In accordance with the applicable procedural rules, the appellant had lost the legal capacity to lodge an appeal.

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[84](#Footref84)      See Article R612-1 of the code de justice administrative (Code of Administrative Justice).

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[85](#Footref85)      See judgment No 68448 of the Conseil d’État (Council of State) of 27 January 1989. In the absence of such an invitation, the administrative court’s decision to raise the issue of inadmissibility of its own motion may be annulled both on appeal and on appeal in cassation (see judgment No 46103 of the Conseil d’État (Council of State) of 21 September 1990).

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[86](#Footref86)      See the judgment in *PJ and PC* v *EUIPO* (paragraph 87).

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[87](#Footref87)      See the judgment in *PJ and PC* v *EUIPO* (paragraph 88).

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[88](#Footref88)      C‑163/07 P, EU:C:2007:717, paragraph 26.

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[89](#Footref89)      C‑363/06 P, EU:C:2008:99, paragraph 34.

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[90](#Footref90)      See order of 17 January 2007, *Diy-Mar Insaat Sanayi ve Ticaret and Akar* v *Commission* (T‑129/06, EU:T:2007:11, paragraphs 43 and 44), in which the General Court held that the conditions relating to the representation of natural and legal persons before the EU courts could be relied on against the appellants and their counsel in so far as they had been informed of existence of those conditions by their publication in the European Court Reports and the Official Journal.

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[91](#Footref91)      Article 55 of the Rules of Procedure, entitled ‘Exclusion from the proceedings’, provides, in paragraphs 1 to 3, that if the General Court considers that the conduct of a lawyer before the General Court, the President, a Judge or the Registrar is incompatible with the dignity of the General Court or with the requirements of the proper administration of justice, or that that lawyer is using his or her rights for purposes other than those for which they were granted, it will inform the person concerned; on the same grounds, the General Court may at any time, having heard the person concerned, decide to exclude a lawyer from the proceedings by reasoned order; and where a lawyer is excluded from the proceedings, the proceedings are to be suspended for a period fixed by the President in order to allow the party concerned to appoint another lawyer.

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[92](#Footref92)      See the judgment in *PJ and PC* v *EUIPO* (paragraphs 89 and 90).

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[93](#Footref93)      Joined Cases C‑515/17 P and C‑561/17 P, EU:C:2019:774.

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[94](#Footref94)      14/64, EU:C:1965:13. In that case, the High Authority had raised a plea of inadmissibility of the action on the ground that the applicant’s lawyer had not produced his authority to act in proceedings at the time the action was lodged, the Court requiring, in practice, that an authority to act in proceedings must be given at the same time as the application. The Court followed the Opinion of the Advocate General, noting that, according to the Rules of Procedure, the lawyer acting for a party was not required to comply with any formality other than establishing his professional status as a lawyer, and therefore was not required to produce a duly executed authority to act in the lodging of an application (p. 10).

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[95](#Footref95)      Opinion of Advocate General Roemer in *Barge* v *High Authority* (14/64, EU:C:1965:1, p. 63). Emphasis added.

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[96](#Footref96)      See the Opinion of Advocate General Roemer in *Barge* v *High Authority* (14/64, EU:C:1965:1, p. 62 and 63). Advocate General Roemer based his reasoning on Article 38(7) of the Rules of Procedure, which provided that, if certain documents are not produced with the application (for example, the instrument or instruments constituting and regulating a legal person), the Registrar of the Court calls on the applicant to do so within a reasonable time. If the applicant fails to put the application in order within the time prescribed, the Court is to decide ‘whether to reject the application on the ground of want of form’.

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