GCEU Clarifies Legal Boundaries Amid Russia Sanctions: Representation Rights Protected
At Lead up, we are committed to providing our clients with the most innovative dispute resolution solutions to fit their specific industry contexts. To do that, we have to stay on top of the recent developments in our clients’ sectors, and analyse these developments in line with our clients’ needs. Every month, in “Lead up Spotlight”, we share with you – our colleagues, clients and prospective partners – our analysis on a recent development relating to dispute resolution in an industry that matters to us and to our clients.
This month’s Lead up Spotlight focuses on the three rulings (T-797/22, T-798/22 and T-828/22) issued by the General Court of the European Union (“GCEU”) on 2 October 2024, upholding the EU’s prohibition on non-litigation legal advisory services to the Russian government and Russian entities. However, the rulings explicitly reaffirm that Russian individuals and entities are entitled to legal representation in matters related to judicial, administrative, or arbitral proceedings, thus protecting access to justice despite sanctions.
Context and Background of the Prohibition
In response to the 2022 escalation of Russia’s conflict in Ukraine, the EU imposed a series of sanctions, including a prohibition on providing legal advisory services to the Russian government and Russian entities.
Legal Challenge: Access to Justice and Professional Independence
Belgian and French legal associations, including the Paris Bar Association and ACE-Avocats, challenged the prohibition, arguing that it lacked adequate justification and infringed on fundamental rights, including access to legal counsel, lawyer-client confidentiality, and professional independence, as well as the principles of the rule of law, proportionality, and legal certainty.
GCEU’s Rulings: Upholding the Prohibition While Assuring Legal Representation Rights
The GCEU dismissed the challenge, affirming that while the prohibition stands, the right to legal representation in contentious proceedings remains unaffected. The GCEU ruled that the prohibition on non-litigation-related legal advice does not interfere with the fundamental right to effective legal protection, as access to legal counsel in judicial matters is preserved.
Further to the rulings, the Court of Justice of the European Union emphasised in a press release that:
“[A]ll persons are recognised by the Charter of Fundamental Rights of the European Union as having a right to effective judicial protection, which includes the right to be advised and represented by a lawyer in the context of existing or probable litigation. It rules that that right is not called into question by the prohibition at issue. […] the general prohibition on providing legal advisory services to the Russian Government or to legal persons, entities or bodies established in Russia does not concern legal advisory services provided in connection with judicial, administrative or arbitral proceedings. The prohibition thus applies only to legal advice that has no link with judicial proceedings. The General Court adds that legal advice provided to natural persons, in particular, does not fall within the scope of the prohibition.”
Conclusion: Balancing Sanctions and Rights in Complex Political Contexts
These rulings offer important clarification for law firms regarding the scope of legal services that can be provided in the context of EU sanctions related to Russia. They reaffirm that the right to legal representation, especially in connection with judicial or arbitral proceedings, remains protected and accessible, regardless of the broader political climate. Additionally, the court has outlined that initial legal assessments intended to lead to litigation are permissible, providing law firms across the EU with clearer guidance on navigating these restrictions while safeguarding fundamental legal rights.