European Court: free choice of lawyer with Dutch legal aid insurance
According to European law a person who has legal aid insurance is free to choose the lawyer he would like. But many Dutch legal aid insurance companies have restricted this free choice in their terms of insurance. Dutch contract lawyer Heleen Ceelen discusses a recent judgment of the European Court of Justice in which the Court explains the EU regulation on this matter.
Legal aid insurance: choice of lawyer
A Dutch case in which a claimant wanted to be represented by a lawyer of choice, give cause to this explanation of the European Court of Justice (ECJ). The insurance company consented to the procedure but refused to compensate the costs of the procedure because the insurance only covered legal assistance provided by an employee (lawyer) of the insurance company. Both the judge in the preliminary relief proceedings as well as the Court of Appeal agreed with the insurance company. But because the Supreme Court was not sure how to interpret article 4 sub 1 of the relevant Regulation, the Supreme Court submitted questions to the ECJ.
Ruling of the ECJ: free choice of lawyer
The ECJ ruled that article 4 of the Regulation is not compatible with an insurance company who prescribed to their clients that fees of an external lawyer will only be compensated if the insurance company considers it necessary that the case will be handled by an external counselor. The ECJ considers next that the Regulation is intended to broadly protect the interests of insured parties. The interpretation of the insurance company in this case is not compatible herewith. It is further irrelevant if legal representation in the concerning court or administrative procedure is required to national law.
Leeway for legal aid insurer
The ECJ has, however, ruled that article sub 1 Regulation does not exclude the possibility for insurance companies to restrict the legal costs that are paid out to the insured party in certain circumstances. As long as insurers use the leeway provided by this article in a correct way, the ECJ does not find any reason to order member states to impose an obligation to insurance companies to provide full unlimited cover for the costs of legal defence of an insured party.
Amsterdam Lawyer for second opinion
According to the terms of insurance an insured party also has the right to ask an external lawyer for a second opinion. The lawyer’s fee for this second opinion will be payable by the insurance company. Please feel free to contact our firm for more information on this subject or for a second
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