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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)
This commentary examines the key aspects and practical implications of the EU General Court’s decision in Case T-797/22, which concerns the legality of EU restrictive measures prohibiting the provision of legal advisory services to the Russian Government and Russian-based entities; while these measures are broad, they include exceptions allowing legal services essential for exercising the right of defence in judicial and administrative proceedings, with the prohibition primarily applying to non-contentious legal advice such as business transactions and contract negotiations; the Court addressed the tension between foreign policy priorities (CFSP) and the protection of human rights under the Charter of Fundamental Rights (CFR), seeking to reconcile these interests by clarifying the scope of the measures and distinguishing between legal advice on contentious and non-contentious matters; applicants argued that the restrictions infringed upon the right to seek legal advice, the independence of legal professionals, and the rule of law, but 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 and 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, permitting limitations provided they are proportionate and necessary to achieve legitimate objectives, relying heavily on established case law from both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), and 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, and 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.