EU General Court’s Judgment on Russia Sanctions: Ban on Legal Advisory Services Valid, But Broader Interpretation of Exceptions

On October 2, 2024, the General Court of the European Union (EU) delivered an interesting, albeit expected, judgment in three combined cases (T-797/22, T-798/22, and T-828/22). These cases stem from challenges to the EU’s ban on directly or indirectly providing legal advisory services to the Russian government or Russian entities (Article 5n(2) Council Regulation (EU) 2022/1904). That prohibition is part of the EU’s 8th sanctions package concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine.

The cases were bought by Belgian Bar associations, including the Dutch Bar Association of Brussels, the Paris Bar Association, and the French Association Avocats Ensemble, with support from German and Geneva (Switzerland) Bar Associations. They argued that the prohibition infringes the EU Charter of Fundamental Rights, specifically: 1) the fundamental right of access to legal advice from a lawyer; 2) the professional secrecy of lawyers; 3) the independence of lawyers, 4) the values of the rule of law and 5) the principles of proportionality and legal certainty.

Independent Legal Advice to All Those in Need of It

The arguments presented in these challenges hold merit. Both the EU Charter and the European Convention on Human Rights guarantee everyone – including the Russian government and Russian entities – the right to effective judicial protection. With the introduction of this ban, lawyers are prohibited from responding to legal queries from the Russian government or Russian entities outside the context of judicial proceedings, which violates the right to legal advice. The EU Court of Justice has consistently ruled that the fundamental role of lawyers includes ensuring that “any person must be able, without constraint, to consult a lawyer whose profession encompasses, by its very nature, the giving of independent legal advice to all those in need of it” (C-623/22 §115). Moreover, a lawyer who wishes to apply for authorisation must disclose details relating to his or her their potential client and the nature of the advice sought, which constitutes direct interference with the right to respect for communications between lawyers and their clients, and undermines lawyer independence, according to the claimants.

No Infringement of the Right to be Advised, Defended and Represented by a Lawyer

Despite these arguments, the General Court rejected the pleas in law. It ruled that the prohibition only applies to legal advisory services that have no link with judicial, administrative, or arbitration proceedings. This outcome was expected, as no rule of EU law enshrines a fundamental right to consult a lawyer in non-contentious matters. Additionally, legal advice provided to natural persons in such cases does not fall within the scope of the prohibition. The General Court concluded that the prohibition at issue does not infringe the right to be advised, defended and represented by a lawyer. Furthermore, the General Court found that the exemption provisions do not entail interference with the professional secrecy of lawyers and the independence of lawyers, as the provisions do not suggest that lawyer is required to share with the authorities, without his or her client’s consent, information that is covered by the professional secrecy. Finally, since it is clear which legal advisory services are prohibited, there is no breach of the principle of legal certainty. As expected, the General Court ruled that the prohibition meets the objectives of general interest recognised by the EU and does not undermine the fundamental role of lawyers in a democratic society.

Broader Interpretation of Exceptions

Notably, the General Court appears to interpret the exceptions under Art. 5n(5) and (6) of the regulation more broadly than suggested in recital 19. These provisions state that the ban is not applicable to the provision of services which 1) are strictly necessary for the exercise of the right of defence in judicial proceedings and the right to an effective legal remedy or 2) are strictly necessary to ensure access to judicial, administrative, or arbitral procedures in a Member State. The General Court found that these exceptions also cover the provision of legal advisory services which, at that preliminary stage, are intended only to assess the legal situation of the person concerned. In the absence of such a preliminary assessment, it would in fact be impossible to ascertain the subject matter of the consultation and to determine whether or not the legal advice sought might have a link with judicial proceedings and, consequently, fall within the scope of the fundamental right of access to a lawyer (T-797/22 §56).

If you would like to learn more about current sanctions, exemptions, and exceptions, feel free to contact us.