In July 2023, we had reported that the French Association des Avocats Conseils d’Entreprises (ACE) had challenged the validity of Art. 5n (2) of Regulation (EU) 833/2014 before the General Court of the European Union (the Court).[1] Similar actions had been filed by several Belgian bar associations and the Paris Bar Association. Art. 5n (2) of Regulation (EU) 833/2014 prohibits the provision of legal advisory services to the Russian Government and to Russian entities.
On October 2, 2024, the Court held that Art. 5n (2) is valid.[2]
The cases related to the eighth sanction package, issued on October 6, 2022[3], by which the EU had prohibited the provision of “legal advisory services directly or indirectly to the Government of Russia or legal persons, entities or bodies established in Russia.”[4]
The EU had defined legal advisory services as
- the provision of legal advice to customers in non-contentious matters, including commercial transactions, involving the application or interpretation of law,
- the participation with or on behalf of clients in commercial transactions, negotiations, and other dealings with third parties and
- the preparation, execution, and verification of legal documents.[5]
Art. 5n (5) of Regulation (EU) 833/2014 expressly allows “the provision of services that are strictly necessary for the exercise of the right of defence in judicial proceedings and the right to an effective legal remedy”. Moreover, Art. 5n (6) of Regulation (EU) 833/2014 excludes from the prohibition “the provision of services which are strictly necessary to ensure access to judicial, administrative or arbitral proceedings in a Member State, or for the recognition or enforcement of a judgment or an arbitration award rendered in a Member State, provided that such provision of services is consistent with the objectives of this Regulation and of Council Regulation (EU) No 269/2014.”
Despite these exceptions, the prohibition unleashed allegations of a breach of the principle of legal certainty and of the right to access to justice. ACE, several Belgian bar associations and the Paris Bar Association therefore challenged the validity of Art. 5n (2) of Regulation (EU) 833/2014 before the ECJ, seeking annulment of the prohibition.
The core issues raised by the submission revolved around the question of whether the prohibition in Article 5n (2) was in line with the Charter of Fundamental Rights and the European Convention on Human Rights. The claimants argued that the prohibition lacked any statement of reasons and that it infringed the fundamental right to have access to legal advice from a lawyer. The claimants believed that the duty to apply for permission with local authorities which the eighth sanction package imposed on lawyers seeking to advise Russian clients violated professional secrecy and threatened the duty of independence of lawyers, the values of the rule of law and the principles of proportionality and legal certainty.[6]
The Court dismissed the actions. While confirming the importance of the fundamental right of all persons to be advised by a lawyer, the Court found that the prohibition in Art. 5n (2) of Regulation (EU) 833/2014 does not call this right into question. The Court pointed out that restrictions may be imposed on the fundamental role of lawyers in ensuring compliance with and defending the rule of law if such restrictions are ”justified by objectives of general interest pursued by the European Union” and “do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very essence of the task entrusted to lawyers in a State governed by the rule of law.” For the Court, the prohibition of legal advisory services to the Russian Government and legal persons, entities or bodies established in Russia is justified by objectives of general interest and does not constitute a disproportionate and intolerable interference with the rule of law.
As to the need to apply for permission to advise Russian clients, the Court found that such procedure does not breach the European Charter of Human Rights and does not, as such, entail interference with the protection of professional secrecy of lawyers. However, the Court advised Member States that they must ensure respect for the Charter of Fundamental Rights when implementing the permission procedures.
[1] Cp. Juergen Mark/Olena Oliinyk, „Further EU and UK Restrictions on Providing Legal Services to the Government of Russia or Legal Entities established in Russia”, Global Arbitration News, July 10, 2023.
[2] Cases T-797/22 (Ordre néerlandais des avocats du barreau de Bruxelles and Others v Council), T-798/22 (Ordre des avocats à la cour de Paris and Couturier v Council) and T-828/22 (ACE v Council); see Press Release No. 155/24 of the Court of Justice of the European Union.
[3] Council Regulation (EU) 2022/1904 of 6 October 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine.
[4] Art. 5n (2).
[5] Consolidated FAQs on the implementation of Council Regulation No 833/2014 and Council Regulation No 269/2014 (updated September 5, 2024), section “provision of services”, question 11.
[6] Press Release No. 155/24 of the Court of Justice of the European Union.
