Universität Bremen v European Research Executive Agency (C-110/21 P)

Contents

Judgment of the Court (Second Chamber)14 July 2022^note(Appeal — Action for annulment — Article 19 of the Statute of the Court of Justice of the European Union — Representation of non-privileged parties in a direct action before the Courts of the European Union — University teacher — University teacher teaching at the university represented in that action and performing duties as coordinator and head of the project that is the subject matter of the dispute — Condition of independence — Existence of a direct and personal interest in the outcome of the dispute)In Case C‑110/21 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 23 February 2021,Universität Bremen, established in Bremen (Germany), represented by C. Schmid, Professor,the other party to the proceedings being:European Research Executive Agency (REA), represented by V. Canetti and S. Payan‑Lagrou, acting as Agents, and by R. van der Hout, advocaat, and C. Wagner, Rechtsanwalt,THE COURT (Second Chamber),composed of A. Prechal, President of the Chamber, J. Passer, F. Biltgen (Rapporteur), N. Wahl and M.L. Arastey Sahún, Judges,Advocate General: N. Emiliou,Registrar: A. Calot Escobar,having regard to the written procedure,after hearing the Opinion of the Advocate General at the sitting on 24 February 2022,gives the following

Judgment

1By its appeal, the Universität Bremen (University of Bremen, Germany) seeks to have set aside the order of the General Court of the European Union of 16 December 2020, Universität Bremen v REA (T‑660/19, not published, EU:T:2020:633; ‘the order under appeal’), by which the General Court dismissed as manifestly inadmissible its action for annulment of Decision Ares (2019) 4590599 of the European Research Executive Agency (REA) of 16 July 2019 rejecting the proposal that that university had presented in the call for proposals H2020‑SC6‑Governance‑2019 (‘the contested decision’).

Legal context

European Union law

2Under Article 19 of the Statute of the Court of Justice of the European Union, applicable to the General Court pursuant to 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 (OJ 1994 L 1, p. 3),] 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 Agreement on the European Economic Area may represent or assist a party before the Court.Such agents, advisers and lawyers shall, when they appear before the Court, enjoy the rights and immunities necessary to the independent exercise of their duties, under conditions laid down in the Rules of Procedure.As regards such advisers and lawyers who appear before it, the Court shall have the powers normally accorded to courts of law, under conditions laid down in the Rules of Procedure.University teachers being nationals of a Member State whose law accords them a right of audience shall have the same rights before the Court as are accorded by this Article to lawyers.’

3Article 51(1) of the Rules of Procedure of the General Court provides:‘A party must be represented by an agent or a lawyer in accordance with the provisions of Article 19 of the Statute [of the Court of Justice of the European Union].’

German law

4Paragraph 67 of the Verwaltungsgerichtsordnung (Code of Administrative Court Procedure) of 21 January 1960 (BGBl. 1960 I, p. 17), in the version applicable to the dispute which gave rise to the appeal, provides, as regards university teachers’ right of audience:‘…(2) The parties may be represented by a lawyer or by a teacher of law at a State or State-recognised university of a Member State of the European Union, a State which is a party to the Agreement on the European Economic Area or Switzerland, who is qualified to hold the office of judge, in the capacity of representative …(3) The court shall refuse representation of the parties by representatives who are not authorised to that end pursuant to subparagraph 2, by way of an order against which no appeal lies. Procedural acts of a representative who is not authorised to that end as well as service on that representative and communication sent to him or her shall be valid until such refusal. ……’

Background to the dispute

5The background to the dispute is set out in paragraphs 2 to 6 of the order under appeal. For the purposes of these proceedings, it may be summarised as follows.

6The University of Bremen was appointed coordinator of a research consortium comprising several European universities, carrying out interdisciplinary comparative law research in the field of tenancy law and housing policy throughout the European Union.

7On 17 March 2019, following a call for proposals, the University of Bremen submitted a project proposal to the REA.

8That project proposal obtained a total score of 10 out of 15 points, which made it eligible for EU funding and put it in 10th place out of the 14 applications submitted. Nevertheless, since the planned budget was limited, only the project proposals ranked in first to third place could be selected.

9By the contested decision, the REA therefore informed the University of Bremen that its proposal was rejected.

The procedure before the General Court and the order under appeal

10By application lodged at the Registry of the General Court on 25 September 2019, the University of Bremen brought an action seeking annulment of the contested decision.

11In its defence, the REA raised an objection of inadmissibility in respect of that action, alleging that the professor representing the University of Bremen was not a third party in relation to that university and that, consequently, he did not satisfy the condition of independence laid down in the Statute of the Court of Justice of the European Union.

12By the order under appeal, the General Court upheld that plea of inadmissibility and, on the basis of Article 126 of its Rules of Procedure, dismissed the action as manifestly inadmissible.

13In paragraph 16 of the order under appeal, the General Court pointed out that, in accordance with the third to fifth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court pursuant to Article 53 thereof, the parties must be represented by a lawyer and only a lawyer authorised to practise before a court of a Member State may represent a party before the Court of Justice.

14In paragraphs 18 and 19 of that order, the General Court stated, as regards the two cumulative conditions laid down in the fourth paragraph of Article 19 of the Statute of the Court of Justice of the European Union, namely, first, being a lawyer, and second, being authorised to practise before a court of a Member State, that, unlike the second of those cumulative conditions, the first one, relating to being a ‘lawyer’, contained no express reference to the law of the Member States for the purpose of determining its meaning and scope, with the result that, in accordance with settled case-law, the concept of ‘lawyer’, within the meaning of that provision, must be given an autonomous and uniform interpretation throughout the European Union, taking into account the context in which it occurs and the purposes of the rules of which it forms part.

15Relying, in paragraph 20 of the order under appeal, on inter alia the judgments of 18 May 1982, AM & S Europe v Commission (155/79, EU:C:1982:157, paragraph 24) and of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others (C‑550/07 P, EU:C:2010:512, paragraph 42), according to which the conception of the lawyer’s role in the legal order of the European Union deriving from the legal traditions common to the Member States is that of a person collaborating in the administration of justice and being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs, the General Court stated, in paragraph 21 of that order, citing the order of 29 September 2010, EREF v Commission (C‑74/10 P and C‑75/10 P, not published, EU:C:2010:557, paragraph 53 and the case-law cited), that the condition of independence of a lawyer implies that there must be no employment relationship between the lawyer and his or her client, pointing out that the concept of ‘independence of a lawyer’ is determined not only positively, that is to say, by reference to the lawyer’s ethical obligations, but also negatively, that is to say, by the absence of an employment relationship between the lawyer and his or her client.

16In paragraph 25 of the order under appeal, the General Court found that, in the present case, the representative who had signed the application at first instance, in addition to being employed by the University of Bremen on the basis of a public-law statutory relationship, had been appointed as coordinator and head of the project that was the subject of the proposal and had been entrusted with ‘essential tasks and duties’ in the context of that project, with the result that the person concerned had not only a close personal connection with the subject matter of the dispute, but also a direct interest in its outcome, since the realisation of that project was dependent, at least in part, on the financing that the European Commission had refused to grant to the University of Bremen.

17The General Court inferred from that, in paragraph 26 of the order under appeal, that the essential duties performed by that representative, within the legal person in whose name he had brought the action at first instance, were such as to compromise his status as an independent third party, within the meaning of the settled case-law referred to in paragraph 65 of the judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA (C‑515/17 P and C‑561/17 P, EU:C:2020:73), and that those duties were such as to have a manifestly detrimental effect on that representative’s capacity to carry out the task of defending his principal’s interests.

18The General Court added, in paragraphs 28 to 34 of the order under appeal, that that conclusion was not invalidated by the judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA (C‑515/17 P and C‑561/17 P, EU:C:2020:73), in which the Court of Justice had indeed clarified the scope of the concept of ‘independence’, without, however, calling into question its previous case-law and without following the course proposed in 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), relating to the criterion used for the purpose of applying the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union.

19In addition, in paragraph 35 of the order under appeal, the General Court rejected the University of Bremen’s argument relating to Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, pointing out that the right of access to a court was not an absolute right and that, consequently, it could involve proportionate restrictions that pursue a legitimate aim.

20Lastly, as regards the University of Bremen’s argument that it should have been advised of the possible existence of a ground of inadmissibility in respect of the action at first instance so as to be able to rectify it, the General Court held, in paragraph 40 of the order under appeal, that the obligation to be represented by a lawyer was not one of the requirements non-compliance with which could be rectified after the expiry of the time limit for bringing an action.

The procedure before the Court of Justice and the forms of order sought

21By its appeal, the University of Bremen claims that the Court should:– set aside the order under appeal;– refer the case back to the General Court for a decision on the merits;– rule that representation by the university professor concerned is valid;– in the alternative, rule that the University of Bremen is entitled to continue the proceedings with a lawyer who satisfies the conditions laid down in the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union; and– order the REA to pay the costs.

22The REA contends that the Court should:– dismiss the appeal; and– order the University of Bremen to pay the costs.

The appeal

23As a preliminary point, it should be noted that the University of Bremen is represented before the Court of Justice by the same person in respect of whom the General Court held, in the order under appeal, that he did not satisfy the conditions of Article 19 of the Statute of the Court of Justice of the European Union to represent that party, in the case at hand, before the Courts of the European Union.

24Nevertheless, since the question relating to the admissibility of the appeal coincides, in essence, with its subject matter, it is necessary to examine the grounds of appeal (see, to that effect, 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, paragraph 20).

25In support of its appeal, the University of Bremen raises two grounds of appeal, the first alleging infringement of the seventh paragraph of Article 19 of the Statute of the Court of Justice of the European Union and the second alleging infringement of Article 47 of the Charter of Fundamental Rights and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Arguments of the parties

26By the first ground of appeal, the University of Bremen criticises the General Court for having disregarded the wording and scheme of the seventh paragraph of Article 19 of the Statute of the Court of Justice of the European Union, in so far as university teachers to whom the law accords a right of audience are not required, as representatives, to satisfy the condition of independence imposed on lawyers, within the meaning of the third and fourth paragraphs of Article 19.

27By the first part of the first ground of appeal, the University of Bremen claims, first of all, that the General Court disregarded the fact that university teachers authorised under the law of their Member State to plead as legal representatives ‘logically’ enjoy that privilege under the seventh paragraph of Article 19 of the Statute of the Court of Justice of the European Union.

28The University of Bremen states that the case-law of the Courts of the European Union has developed the concept of ‘lawyer’ on the basis of the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, requiring, in principle, that that legal representative be independent from the party he or she represents. It claims that, in so far as the General Court denied that the representative concerned enjoyed such independence, on the sole ground that he could not be regarded as a ‘lawyer’ within the meaning of the fourth paragraph of Article 19 of that statute, it failed to take account of the preferential regime reserved for university teachers in the seventh paragraph of Article 19 of that statute.

29The University of Bremen submits that, on account of the very clear wording of that provision, university teachers have ex lege the same rights as those conferred on lawyers. Consequently, the condition of independence of a lawyer, within the meaning of the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, cannot be transposed to university teachers.

30The University of Bremen puts forward several arguments in support of that submission.

31In the first place, the question of university teachers’ capacity to plead, including the question of any conflicts of interest, is fully governed at the level of national law, to which the seventh paragraph of Article 19 of the Statute of the Court of Justice of the European Union expressly refers. Thus, in accordance with German law, refusal of legal representation may be envisaged only if the representative concerned is neither a lawyer nor a university teacher or if that representative is a judge in the court seised. Furthermore, the Bundesverfassungsgericht (Federal Constitutional Court, Germany) has held that mere conflicts of interest attributable to lawyers or university teachers cannot justify an order removing that person, since the code of conduct provides for at most professional liability coupled with penalties.

32In the second place, university teachers’ special status under public law makes it possible to exclude any kind of conflict of interest. As civil servants, they are under a strict duty of loyalty and, since the power of representation is merely an ancillary duty, which is, moreover, subject to special authorisation by the hierarchical superior, they are – unlike lawyers – not financially dependent on the activity of legal representation.

33In the third place, the University of Bremen submits that, as a public university, it forms an integral part of the Member State to which it belongs, that Member State being a privileged party covered by the first paragraph of Article 19 of the Statute of the Court of Justice of the European Union.

34By the second part of the first ground of appeal, the University of Bremen claims that, under the provisions laid down in Paragraph 67 of the Code of Administrative Court Procedure, in the version applicable to the dispute that gave rise to the appeal, the legal representative is authorised to plead without any further conditions, since there is, a priori, no well-known conflict of interest.

35By the third part of the first ground of appeal, the University of Bremen submits that, even if the Court of Justice were not to adopt that interpretation, that university should have been afforded protection of legitimate expectations, on account of the unequivocal wording of the seventh paragraph of Article 19 of the Statute of the Court of Justice of the European Union. In the present case, it was completely unexpected for the University of Bremen that university teachers would also be required to satisfy the condition of independence of a lawyer, within the meaning of the third and fourth paragraphs of Article 19 of that statute.

36The REA contends, first of all, that the third and fourth heads of claim, by which the University of Bremen asks the Court of Justice to rule on certain issues, are inadmissible, on the ground that, in the context of the examination of an action for annulment, review by the Courts of the European Union is limited to the lawfulness of the contested act.

37As regards the first ground of appeal, the REA states that it is unfounded, inasmuch as, according to the REA, university teachers have no privileged status and the University of Bremen misinterprets the conditions laid down in Article 19 of the Statute of the Court of Justice of the European Union, read in conjunction with Articles 51 and 56 of the Rules of Procedure of the General Court.

38In the REA’s submission, since university teachers have the same rights and duties as lawyers, the case-law relating to the concept of legal representation, for the purposes of the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union, is also applicable to them and none of the arguments put forward by the University of Bremen is capable of calling that inference into question.

Findings of the Court

39As regards the representation of non-privileged parties before the Courts of the European Union, it should be borne in mind that the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court pursuant to Article 53 thereof, lay down two separate and cumulative conditions, namely, first, that parties not covered by the first and second paragraphs of Article 19 must be represented by a lawyer, and, second, that only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Courts of the European Union.

40As regards, first of all, the second condition, laid down in the fourth paragraph of Article 19 of the Statute of the Court of Justice of the European Union, relating to the authorisation of lawyers to practise before a national court, it is apparent from the wording of that provision that the meaning and scope of that condition must be interpreted by reference to the national law concerned (judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 59).

41Similarly, as the Advocate General noted, in essence, in point 59 of his Opinion, it is apparent from the wording of the seventh paragraph of Article 19 of the Statute of the Court of Justice of the European Union, pursuant to which university teachers being nationals of a Member State whose law accords them a right of audience are allowed to plead before the Courts of the European Union, that the meaning and scope of that condition must also be interpreted by reference to the national law concerned.

42In the present case, it is not disputed that the representative of the University of Bremen, who is a professor, is authorised by German law to plead as a legal representative, with the result that, in accordance with the seventh paragraph of Article 19 of the Statute of the Court of Justice of the European Union, he has the same rights as those accorded to lawyers in accordance with the fourth paragraph of Article 19 and may therefore represent or assist a party before the Court of Justice.

43As regards, next, the first condition, laid down in the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union, relating to being a ‘lawyer’, the Court of Justice has held that, as there is no reference in that provision to the law of the Member States, that concept must be given an autonomous and uniform interpretation throughout the European Union, taking into account not only the wording of that provision, but also its context and purpose (judgments of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 57 and the case-law cited, and of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 60).

44It is apparent from the wording of the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union, and in particular from the use of the term ‘represented’, that a ‘party’ as referred to in that provision, whatever that party’s standing, is not authorised to act on its own behalf before a Court of the European Union, but must use the services of a third party. Thus, the submission of an application signed by the applicant itself is not sufficient for the purpose of bringing an action, even if the applicant is a lawyer authorised to plead before a national court (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 58 and 59 and the case-law cited, and of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 61).

45That finding is confirmed by the context of which that provision forms part, from which it is clear that the legal representation of a party not covered by the first and second paragraphs of Article 19 can be carried out only by a lawyer, whereas the parties covered by those first and second paragraphs may be represented by an agent who may, if necessary, be assisted by an adviser or by a lawyer (judgments of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 60, and of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 62).

46That finding is borne out by the objective of parties not covered by the first and second paragraphs of Article 19 of the Statute of the Court of Justice of the European Union being represented by a lawyer, which is, as the General Court rightly pointed out, in paragraph 29 of the order under appeal, on the one hand, to prevent private parties from acting on their own behalf before the Courts without using an intermediary and, on the other, to ensure that legal persons are defended by a representative who is sufficiently distant from the legal person which he or she represents (judgments of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 61 and the case-law cited, and of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 63).

47In that context, the Court of Justice has emphasised that the objective of that task of representation by a lawyer, as referred to in the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, which is carried out in the interests of the sound administration of justice, is above all to protect and defend the principal’s interests to the greatest possible extent, acting in full independence and in line with the law and professional rules and codes of conduct (judgments of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 62, and of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 64).

48In addition, while the concept of ‘independence’ of a lawyer was initially developed in the context of the confidentiality of documents in the field of competition law, and the case-law has specified in that regard that lawyers are officers in the administration of justice and are required to provide, in the overriding interests of that cause, legal assistance to their client (see, to that effect, judgments of 18 May 1982, AM & S Europe v Commission, 155/79, EU:C:1982:157, paragraph 24, and of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others, C‑550/07 P, EU:C:2010:512, paragraph 42), it should nevertheless be noted that the definition of that concept has recently evolved in the matter of representation before the Courts of the European Union, the predominant criterion applied in that regard now being the protection and defence of the client’s interests (see, to that effect, judgments of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 62, and of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 65).

49In that context, in accordance with the Court’s settled case-law, the condition of the independence of a lawyer is determined not only negatively, that is to say, by the absence of an employment relationship between the lawyer and his or her client, but also positively, that is to say, by reference to ethical obligations (see, to that effect, judgments of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 63 and the case-law cited, and of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 66).

50Accordingly, the General Court was fully entitled to find, in paragraph 21 of the order under appeal, that the condition of the independence of a lawyer, in the specific context of Article 19 of the Statute of the Court of Justice of the European Union, necessarily implies that there must be no employment relationship between the lawyer and his or her client.

51Moreover, that approach applies with the same force in a situation in which a lawyer is employed by an entity connected to the party he or she represents (judgments 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, paragraph 25, and of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 68).

52As regards the positive determination of the concept of ‘independence’, the Court of Justice has expressly pointed out that that concept must be understood as requiring 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 that client’s interests to the greatest possible extent, in line with the law and professional rules and codes of conduct (see, to that effect, 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 62 to 64, and of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 69).

53As the Advocate General observed in point 60 of his Opinion, in applying the condition of independence imposed by EU law on the representatives of non-privileged parties, the Courts of the European Union carry out a restricted review which limits findings of inadmissibility in respect of actions brought before them to situations in which it is quite obvious that the representative concerned is not in a position to carry out the task of defending his or her client while acting in that client’s interests to the greatest possible extent, with the result that that representative must be removed in the interests of the client (see, to that effect, judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 74).

54It is necessary, however, to determine whether the condition of independence developed in the case-law with regard to lawyers as set out in paragraphs 48 to 53 of this judgment applies also to university teachers authorised to represent a party in legal proceedings.

55In that regard, even though the two professions are not comparable as regards the description of their tasks, since a lawyer is required to protect and defend his or her client’s interests, whereas a university teacher’s role is to teach and carry out research, in full independence having regard to the academic freedom governing that profession, it is nevertheless important to note, as the Advocate General observed in points 57 and 58 of his Opinion, that where a university teacher represents a party before the Courts of the European Union, he or she is no longer acting as a teacher and researcher but carries out the same task as that which is the duty of a lawyer, namely representing parties not covered by the first and second paragraphs of Article 19 of the Statute of the Court of Justice of the European Union.

56Furthermore, it is apparent from the wording of the seventh paragraph of Article 19 of the Statute of the Court of Justice of the European Union that university teachers accorded a right of audience under the law of their Member State have the same rights as are accorded to lawyers in the third paragraph of Article 19 of that statute.

57It follows that, in accordance with the objective of the task of representation, which is above all to protect and defend the principal’s interests to the greatest possible extent, as noted in paragraphs 47 and 48 of this judgment, university teachers must meet the same criteria of independence as those applied to lawyers.

58Those criteria are determined, in accordance with the case-law cited in paragraphs 49 and 52 of this judgment, negatively, by the absence of an employment relationship between the representative and his or her client, and positively, by reference to ethical obligations entailing, inter alia, 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 that client’s interests to the greatest possible extent, in line with the law and professional rules.

59As regards the issue of the absence of an employment relationship between the representative and his or her principal, the General Court held, in paragraph 25 of the order under appeal, that the representative of the University of Bremen was employed by that university on the basis of a public-law statutory relationship.

60By equating the situation of a university teacher who represents the university in which he or she teaches and carries out research to that of a legal adviser representing an entity linked to the legal person in which he or she is employed, the General Court misapplied the case-law cited in paragraphs 51 and 52 of this judgment.

61As the Advocate General observed in points 50 and 74 of his Opinion, unlike the situation of an in-house lawyer referred to 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, paragraph 25), the university professor concerned is linked to the university which he represents by virtue of a public-law statutory relationship. That status confers on him, according to the conditions and rules of national law, independence in his capacity not only as a teacher and researcher, but also as a representative of non-privileged parties before the Courts of the European Union. Furthermore, since legal representation is not one of the tasks which that professor is called upon to perform within the university as a teacher or researcher, that representation is in no way connected to his academic duties and is therefore performed outside any relationship of subordination with that university, even where he is called upon to represent that university.

62Inasmuch as the Court of Justice has held that the mere existence of a civil-law contractual relationship between a lawyer and the university that he or she represents is not sufficient for a finding that that lawyer is in a situation that has a manifestly detrimental effect on his or her capacity to defend his or her client’s interests, in compliance with the condition of independence, for the purposes of Article 19 of the Statute of the Court of Justice of the European Union (see, to that effect, judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraphs 66 and 67), the existence of a public-law statutory relationship between a university teacher and the university which he or she represents is equally insufficient for a finding that that university teacher is in a situation preventing him or her from defending that university’s interests.

63Given that the seventh paragraph of Article 19 of the Statute of the Court of Justice of the European Union confers on university teachers the same rights as are accorded to lawyers, within the meaning of the third paragraph of Article 19 of that statute, a university teacher accorded a right of audience under national law is presumed to satisfy, in principle, the condition of independence for the purposes of Article 19 of that statute, even where that university teacher represents the university where he or she pursues his or her academic activities.

64As regards the absence of a connection which has a detrimental effect on the representative’s capacity to carry out the task of defending his or her client while acting in that client’s interests to the greatest possible extent, the General Court referred, in paragraph 25 of the order under appeal, to the fact that the representative of the University of Bremen was coordinator and head of the project that was the subject of the proposal and that he had been entrusted with ‘essential tasks and duties’ in the context of that project. According to the General Court, that representative’s personal connection with the subject matter of the dispute thus compromised his capacity to provide the legal assistance needed by that university.

65That assessment of the General Court is vitiated by an error.

66While the General Court rightly pointed out, in paragraph 30 of the order under appeal, that the lawyer’s duty of independence must be understood not as the absence of any connection whatsoever between the lawyer and his or her client, but only as 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, the connections described in paragraph 25 of that order, set out in paragraph 64 of this judgment, cannot be classified as connections which have a manifestly detrimental effect on the capacity of the University of Bremen’s representative to carry out the task of representing that university with the requisite independence. It is true that the duties performed by the representative concerned in the context of the project that is the subject matter of the dispute meant that he shared common interests with the University of Bremen. Nevertheless, such interests cannot suffice, as the Advocate General noted in point 80 of his Opinion, to establish that that representative was not capable of duly carrying out the task of representation with which he was entrusted.

67Since, moreover, no evidence has been put forward such as to indicate that those interests precluded legal representation of the University of Bremen by that representative, the General Court exceeded the limits of its review as set out in the case-law cited in paragraphs 52 and 53 of this judgment, which does not constitute a mere application of the concept of ‘independence’, for the purposes of Article 19 of the Statute of the Court of Justice of the European Union, but a reorientation of the case-law on that concept, to the effect that the condition of independence provided for in EU law must be interpreted as limiting findings of inadmissibility to only those situations where it is quite obvious that the representative concerned is unable to carry out the task of defending his or her client while acting in that client’s interests to the greatest possible extent, with the result that that representative must be removed in the interests of the client.

68The General Court therefore erred in concluding that the action was inadmissible on the ground that the University of Bremen was not duly represented by the university professor concerned.

69Consequently, the first ground of appeal must be upheld.

70Accordingly, it is appropriate to set aside the order under appeal, without there being any need to examine the other heads of claim put forward in the first and second grounds of appeal.

Referral of the case back to the General Court

71In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court of Justice, when setting aside the decision of the General Court, may 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.

72In the present case, since the state of the proceedings does not permit final judgment to be given on the merits, the case must be referred back to the General Court.

Costs

73Since the case has been referred back to the General Court, the costs relating to the appeal proceedings must be reserved.

Operative part

On those grounds, the Court (Second Chamber) hereby:

1.Sets aside the order of the General Court of the European Union of 16 December 2020, Universität Bremen v REA (T‑660/19, not published, EU:T:2020:633);

2.Refers Case T‑660/19 back to the General Court of the European Union;

3.Reserves the costs.