Article 7 - Respect for private and family life
Article 52 - Scope and interpretation
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Common foreign and security policy – Restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine – Prohibition on the provision of legal advisory services to the Russian Government and entities established in Russia – Fundamental role of lawyers in a democratic society – Right of lawyers to provide legal advisory services – Right to be advised by a lawyer – Articles 7 and 47 and Article 52(2) of the Charter of Fundamental Rights – Independence of lawyers – Rule of law – Proportionality – Legal certainty
Outcome of the case:
On those grounds, the General Court (Grand Chamber) hereby:
37) In that regard, the Court notes that the question that the applicants raise by the first part of the first plea in law is, in essence, whether the combined application of Articles 7 and 47 of the Charter is such as to form the basis of a fundamental right of access to a lawyer, including in situations unconnected with any judicial proceedings. Since the prohibition at issue applies to legal advisory services provided, in particular, by lawyers, in non-contentious matters, they claim that it constitutes interference with the fundamental right of access to a lawyer.
38) In order to answer that question raised by the applicants, it is necessary to examine the case-law of the Court of Justice on Article 47 of the Charter, on the one hand, and on Article 7 of the Charter, on the other, and the case-law of the European Court of Human Rights.
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40) The Court of Justice has held that the fundamental right provided for in Article 47 of the Charter is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (judgment of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, paragraph 51). The principle of the rule of law set out in Article 2 TEU requires free access to EU law for all natural or legal persons of the European Union, and that individuals must be able to ascertain unequivocally what their rights and obligations are (judgment of 5 March 2024, Public.Resource.Org and Right to Know v Commission, C‑588/21 P, EU:C:2024:201, paragraph 81).
41) According to the second sentence of the second paragraph of Article 47 of the Charter, the right to a fair trial includes the possibility for everyone to be advised, defended and represented by a lawyer. That right consists of various elements. It includes, inter alia, the rights of the defence, the principle of equality of arms, the right of access to the courts and the right of access to a lawyer, both in civil and criminal proceedings (judgment of 8 December 2022, Orde van Vlaamse Balies and Others, C‑694/20, EU:C:2022:963, paragraph 60).
42) It should be noted that Article 47 of the Charter is headed ‘Right to an effective remedy and to a fair trial’. The third paragraph of that article provides for legal aid for proceedings intended to ‘ensure effective access to justice’. In that context, a person must only be recognised as having the possibility of being advised, defended and represented, provided for in the second paragraph of that article, where there is a link with judicial proceedings (see, to that effect, judgment of 8 December 2022, Orde van Vlaamse Balies and Others, C‑694/20, EU:C:2022:963, paragraph 61).
44) Article 7 of the Charter, unlike Article 47, seeks not to protect the right to an effective remedy but to protect everyone’s private life, in particular the privacy of their communications, irrespective of any link with judicial proceedings. It is Article 7 which gives rise to the protection of the professional secrecy of lawyers, which is, in principle, guaranteed when lawyers perform their task of defending or representing the interests of their clients in legal proceedings or when they give legal advice to any person seeking it.
45) In that regard, the European Court of Human Rights has accordingly held that the protection of professional secrecy, flowing from Article 8 ECHR, to which Article 7 of the Charter corresponds, included the activities of legal advice in general, irrespective of the existence of litigation (see, to that effect, ECtHR, 9 April 2019, Altay v. Turkey (No. 2), CE:ECHR:2019:0409JUD001123609, § 49).
47) The protection of professional secrecy, enshrined in Article 7 of the Charter, does indeed enable lawyers to carry out satisfactorily their task of advising, defending and representing their clients, in order to guarantee the right of their clients to a fair trial enshrined in Article 47 of the Charter (see, to that effect, judgment of 8 December 2022, Orde van Vlaamse Balies and Others, C‑694/20, EU:C:2022:963, paragraph 60).
48) The fact remains, however, that the protection guaranteed in Article 47 of the Charter and that guaranteed in Article 7 of the Charter do not have the same scope. On the one hand, professional secrecy is afforded the protection enshrined in Article 7 of the Charter where there is no link with judicial proceedings (see, to that effect, judgment of 8 December 2022, Orde van Vlaamse Balies and Others, C‑694/20, EU:C:2022:963, paragraphs 61 to 65). On the other hand, the Court of Justice has not ruled that that protection was intended to guarantee a fundamental right of access to a lawyer and to legal advice from a lawyer irrespective of any link with judicial proceedings, but rather that its sole purpose, in the light of the right to respect for private life, was to preserve the confidentiality of correspondence between a lawyer and his or her client.
49) Consequently, it cannot be inferred from the case-law of either the European Court of Human Rights or the Court of Justice that the protection guaranteed in Article 7 of the Charter and that guaranteed in Article 47, considered in isolation or together, are such as to form the basis of a fundamental right for all persons to have access to and be advised by a lawyer other than in the context of existing or probable litigation.
51) The fundamental right of access to a lawyer and to advice from him or her, enshrined in Article 47 of the Charter, must therefore be recognised solely if there is a link to judicial proceedings, whether such proceedings have already been commenced or can be pre-empted or anticipated, on the basis of tangible elements, at the stage at which the lawyer assesses his or her client’s legal situation.
71) In common with that provision of the ECHR, Article 7 of the Charter necessarily guarantees the secrecy of legal consultation, with regard both to its content and to its existence. Therefore, other than in exceptional situations, any person must be able to be legitimately confident that his or her lawyer will not disclose to anyone, without that person’s consent, that he or she is consulting that lawyer (judgment of 8 December 2022, Orde van Vlaamse Balies and Others, C‑694/20, EU:C:2022:963, paragraph 27).
72) Nevertheless, neither Article 7 of the Charter nor Article 8 ECHR prohibits the imposition on lawyers of certain obligations likely to concern their relationships with their clients, in particular where there is credible evidence of the participation of a lawyer in an offence, or in connection with efforts to combat certain practices. It is, however, necessary to provide a strict framework for such measures and afford sufficient guarantees against arbitrariness (see, to that effect, ECtHR, 16 November 2021, Särgava v. Estonia, CE:ECHR:2021:1116JUD000069819, § 89 and the case-law cited).
73) The Court of Justice has previously held that a reporting obligation, requiring a lawyer to disclose to a third-party intermediary which was not the lawyer’s client, the lawyer’s identity, his or her assessment in relation to the reporting obligation at issue and the mere fact that he or she had been consulted, entailed interference with the right to respect for communications between lawyers and their clients guaranteed in Article 7 of the Charter (judgment of 8 December 2022, Orde van Vlaamse Balies and Others, C‑694/20, EU:C:2022:963, paragraphs 29 and 30). Furthermore, that reporting obligation, in so far as it requires the third-party intermediary to notify the authorities of the identity of the lawyer concerned and the fact that he or she was consulted, leads to another interference with the right guaranteed in Article 7 of the Charter (judgment of 8 December 2022, Orde van Vlaamse Balies and Others, C‑694/20, EU:C:2022:963, paragraph 31). It follows that the disclosure by a lawyer of, in particular, his or her identity or the fact that he or she has been consulted, where that disclosure is compulsory and takes place without the consent of the lawyer’s client, constitutes interference with the right guaranteed in Article 7 of the Charter.
80) Nevertheless, it should be borne in mind that, in accordance with Article 51(1) of the Charter, the Member States must respect the rights enshrined in the Charter when they are implementing EU law. It is incumbent on them, therefore, when defining the arrangements for implementing the exemption procedures, to ensure respect for Article 7 of the Charter, in compliance with the conditions laid down in Article 52(1) thereof (see, to that effect, judgment of 6 October 2020, Privacy International, C‑623/17, EU:C:2020:790, paragraphs 62 and 63).
81) Consequently, the exemption provisions do not, in themselves, entail interference with the right guaranteed in Article 7 of the Charter.
85) In any event, even assuming that the exemption provisions do give rise to interference with the professional secrecy of lawyers guaranteed in Article 7 of the Charter, it must be recalled that Article 52(1) of the Charter allows limitations on the exercise of the rights enshrined by that Charter, provided that the limitations concerned are provided for by law. Those limitations must also respect the essence of the fundamental right at issue and, subject to the principle of proportionality, must be necessary and genuinely meet objectives of general interest recognised by the European Union (see, to that effect, judgments of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 148; of 8 December 2022, Orde van Vlaamse Balies and Others, C‑694/20, EU:C:2022:963, paragraph 34; and of 27 July 2022, RT France v Council, T‑125/22, EU:T:2022:483, paragraphs 77 and 144).
