Commentary on the EU General Court’s case T-797/22 of 2 October 2024 concerning the annulment of restrictive measures prohibiting the provision of legal advisory services to the Government of Russia and Russian-based entities

Ordre néerlandais des avocats du barreau de Bruxelles and Others v Council of the European Union

Abstract

This commentary examines the key aspects and practical implications of the EU General Court’s decision in Case T-797/22. It concerns the legality of EU restrictive measures prohibiting the provision of legal advisory services to the Russian Government and Russian-based entities. Although these measures are broad in scope, they include exceptions allowing legal services essential for exercising the right of defence in judicial and administrative proceedings. The prohibition primarily applies to non-contentious legal advice, such as business transactions and contract negotiations. The Court addressed the tension between the priorities of foreign policy (hereinafter — CFSP) and the protection of human rights under the Charter of Fundamental Rights (hereinafter — CFR). The Court sought to reconcile these competing interests by clarifying the scope of the measures, particularly distinguishing between legal advice on contentious and non-contentious matters. The applicants argued, among other points, that the restrictions infringed upon the right to seek legal advice, the independence of legal professionals, and the rule of law. However, the Court dismissed these claims, holding that EU law does not recognise a fundamental right to receive legal advice outside the context of imminent or ongoing litigation. Furthermore, it ruled that the “authorisation provisions” do not undermine professional secrecy or lawyers’ independence, as they do not compel disclosure of privileged information to national oversight authorities. While acknowledging that such restrictions could impose certain limitations on protected rights, the Court found them consistent with Article 52(1) CFR, which permits limitations provided they are proportionate and necessary to achieve legitimate objectives. The Court’s reasoning relied heavily on established case law from both the Court of Justice of the European Union (hereinafter — CJEU) and the European Court of Human Rights (hereinafter — ECtHR), underscoring that fair trial guarantees are the primary source of lawyers’ autonomy. The decision could pose challenges for consulting firms and clients, including potential overcompliance risks and difficulties in applying the Court’s distinction between contentious and non-contentious matters, particularly regarding preliminary assessments of litigation probability. To address these issues, the Council may introduce additional amendments or guidelines to mitigate unintended adverse effects on the legal services market. While an appeal is pending before the Court of Justice, an outcome favourable for the applicants appears unlikely.