Frits Hommersom met groene bril

Right to Free Choice of Lawyer in Legal Assistance Insurance Extended.

The European Court of Justice underlined the free choice of lawyer in its ruling of 7 November 2013. The right to choose one’s own lawyer was already in the law, but legal expenses insurers restricted this by placing the choice with themselves and only applying it to proceedings where a lawyer is mandatory (such as cases with an interest above € 25,000). After that ruling, however, it was still not entirely clear what exactly was covered by the term administrative procedure. On April 7, 2015, the European Court of Justice further fleshed out the concept of “free choice of lawyer” in legal expenses insurance with two rulings. Both a dismissal procedure at the UWV and an objection procedure must be seen as administrative procedures in which insured parties are entitled to choose their own lawyer.

The first case involved an insured of DAS who was dismissed in early 2014. The insurer had subsequently engaged a lawyer for a dismissal procedure at the UWV and wanted to claim the costs from DAS. Das refused, arguing that a UWV would not be a judicial or administrative procedure.

The Supreme Court found that such a procedure did fall within a broad interpretation of the concept of administrative procedure, but nevertheless submitted two preliminary questions to the European Court of Justice: whether requesting a dismissal permit from the UWV should be considered an administrative procedure and – if that depends on the characteristics of the specific procedure – how a judge can then determine when there is an administrative procedure.

Protection of the insured For the interpretation of an EU law provision, not only the wording, but also the context and the objectives pursued by the regulation in question, the Court notes. “In this regard, it should be recalled that Directive 87/344, in particular Article 4 of the latter, concerning the free choice of lawyer or representative, aims to provide broad protection for the interests of the insured.” That broad protection hinders a restrictive interpretation of the article on free choice of lawyer. Because the dismissed employee cannot appeal the UWV’s decision, “it cannot be disputed that the employee’s rights are affected by the UWV’s decision and that his interests as an insured need protection in the proceedings before that body.” Care indication The second case involved proceedings by a Dutch citizen who had been assisted by a lawyer in administrative objection proceedings against the Centrum Indicatiestelling Zorg (CIZ). Achmea refused to reimburse the external lawyer’s fees. The Amsterdam Court of Appeal, also put the same question to the EU-ho. The EU Court of Appeal described this as “the phase of objection to an administrative body in which that body issues a decision that can be appealed” and ruled with almost the same arguments that here too there must be a free choice of lawyer.

Tips & Tricks for litigants.
(Prospective) insured parties should carefully check the policy conditions of a legal expenses insurer for coverage in the event of external legal assistance. Many insurers charge an excess or lower the ceiling for the costs of legal assistance, compared to the situation where the case is handled by an in-house lawyer or a law firm with whom they have made price agreements.

Tips: compare fees.

Check what the policy conditions say about the reimbursement of external costs. Also note whether a distinction is made between cases involving compulsory and non-compulsory legal representation.
Check exactly which costs are reimbursed. Sometimes the limited reimbursements apply only to lawyer’s fees. It is better to cherish a policy without (sharply) restricted reimbursements, provided you are satisfied with the service. Some insurers have a list of external legal assistance providers with whom they have price agreements. You are not obliged to choose from them.
Under all circumstances: do not engage an external lawyer beforehand, but first submit your wishes/choice to the insurer. Asking permission is in principle a formality, because an insurer cannot refuse the right to an own lawyer. He may, however, set limits to the compensation. Usually you can choose your own legal advisor once per procedure.

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Frits Hommersom met groene bril

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