The European Court of Justice underlined the free choice of lawyer in its judgment of 7 November 2013. The right to choose one’s own lawyer was already in the law, but legal expenses insurers limited it by placing the choice with them and only applying it to proceedings in which a lawyer is mandatory (such as cases with an interest above € 25,000). After that judgment, however, it was not entirely clear what exactly was covered by the term administrative proceedings. On 7 April 2015, the European Court of Justice gave further substance to the concept of ‘free choice of lawyer’ in legal expenses insurance with two judgments. Both a dismissal procedure at the UWV and an objection procedure must be regarded as administrative proceedings in which insured parties have the right 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 recover 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 fell under a broad interpretation of the concept of administrative procedure, but nevertheless submitted two preliminary questions to the European Court of Justice. procedure, but nevertheless submitted two preliminary questions to the European Court of Justice: whether a request for a dismissal permit at the UWV should be regarded as 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.
In interpreting a provision of Union law, it is not only the wording that is important, but also the context and the objectives pursued by the scheme in question, the Court notes. “In that regard, it should be recalled that Directive 87/344, and in particular Article 4 thereof, concerning the free choice of lawyer or representative, is intended to provide broad protection for the interests of the insured.” This broad protection precludes a restrictive interpretation of the article on the free choice of a 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.”
The second case involved proceedings by a Dutch citizen who had been assisted by a lawyer in an administrative objection procedure against the Centrum Indicatiestelling Zorg (CIZ). Achmea refused to reimburse the costs of the external lawyer. The Amsterdam Court of Appeal also put the same question to the EU Court. The EU Court of Appeal defined this as “the phase of objection to an administrative body in which that body issues a decision open to objection” 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 would do well to carefully check the policy conditions of a legal aid insurer for coverage in the event of external legal aid. Many insurers charge a risk or lower the ceiling for the costs of legal assistance compared to the situation in which the case is handled by the insurer. with the situation in which the case is handled by a company lawyer or a law firm with which price agreements have been made.
Tips: compare rates.
Check what the policy conditions say about the reimbursement of external costs. Also note whether a distinction is made A distinction is made between cases involving compulsory and non-compulsory legal representation. Sometimes the limited reimbursements apply only to lawyer’s fees. It is better to cherish a policy without (severely) limited cost reimbursement, provided you are satisfied with the service. Some insurers have a list of external legal aid providers with whom they have made price agreements. You are not obliged to choose from them.
Under all circumstances: Do not engage an external lawyer in advance, but first submit your wishes/choice to the insurer. first to the insurer. Asking permission is in principle a formality, because an insurer cannot refuse the right to an own lawyer. However, it can set limits to the reimbursement. Usually you can choose your own legal advisor once per procedure.