ORDER OF THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
14 December 2009 (*)
(Campaign against terrorism – Specific restrictive measures against certain persons and entities associated with Al-Qaeda – Freezing of funds and capital required by Community legislation – Inclusion of the applicant in the list – Legal aid – Assent of the Security Council of the United Nations)
In Case T‑135/06 AJ,
Al-Bashir Mohammed Al-Faqih, residing in Birmingham (United Kingdom), represented by N. Garcia, Solicitor, and E. Grieves, Barrister,
applicant,
v
Council of the European Union, represented by M. Bishop and E. Finnegan, acting as Agents,
defendant,
supported by
European Commission, represented by E. Paasivirta and P. Aalto, acting as Agents,
and by
United Kingdom of Great Britain and Northern Ireland, represented by C. Gibbs and S. Ossowski, acting as Agents, and by A. Dashwood, Barrister,
interveners,
APPLICATION for legal aid,
THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
makes the following
Order
1 By application lodged at the Registry of the Court on 5 May 2006 the applicant, Mr Al-Faqih, brought this action for annulment of Article 2 of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al‑Qaeda network and the Taliban (OJ 2002 L 139, p. 9), and repealing Council Regulation (EC) No 467/2001, as amended by Council Regulation (EC) No 561/2003 of 27 March 2003 (OJ 2003 L 82, p. 1), and by Commission Regulation (EC) No 246/2006 of 26 February 2006 (OJ 2006 L 40, p. 13), amending for the sixty‑third time Council Regulation (EC) No 881/2002 which added the applicant’s name to Annex I to Regulation (EC) No 881/2002.
2 By document lodged at the Registry on 9 September 2009 the applicant applied to the Court for legal aid pursuant to Article 94 of that court’s Rules of Procedure.
3 In support of that application the applicant states that he is subject to the financial sanctions regime of the United Nations and that he has no income. His wife, Ms Etizaz Beetallo, is in receipt of public funds in the form of employment support allowance, tax credit and child benefit, and also receives housing benefit, which relieves her from paying rent or council tax. Ms Beetallo is subject to a licence from HM Treasury (United Kingdom of Great Britain and Northern Ireland) limiting her expenses and those of the applicant to ‘basic expenses’ only. The applicant is the father of four children, whose needs are met exclusively from the benefits received by his wife. He is in receipt of legal aid for proceedings under way in the United Kingdom of Great Britain and Northern Ireland.
4 In addition, it is clear from the letter dated 13 August 2009 that the applicant seeks to be represented by N. Garcia, Solicitor, who has submitted the application for legal aid, and E. Grieves, Barrister.
5 By letter from the Registry of 10 September 2009 the Court invited the other parties to the proceedings to lodge their observations on the applicant’s application for legal aid.
6 In its observations, lodged at the Court Registry on 28 September 2009, the Council expressed its surprise at the belatedness of the legal aid application but waived any formal objection concerning it, having regard to the wording of Article 95(3) of the Rules of Procedure.
7 So far as the evidence in support of that application is concerned, the Council has stated that it does not oppose the grant of legal aid to the applicant and that it leaves to the discretion of the Court the determination whether the evidence produced by the applicant constituted sufficient proof of his penury. It considered, none the less, that the costs incurred before the applicant’s new barrister was instructed ought not to be covered by legal aid.
8 So far as the form of the legal aid sought is concerned, the Council regards as acceptable the applicant’s request to be assisted by a solicitor and a barrister.
9 So far as the appropriate amount of legal aid to be granted to the applicant is concerned, the Council regrets that the applicant has produced neither a breakdown of the lawyers’ disbursements and fees already incurred nor details of those yet to be incurred. Referring to the Court’s previous practice, the Council considers that the maximum sum to be granted by way of legal aid ought not to be more than EUR 4 000.
10 Article 94(1) of the Rules of Procedure makes it clear that, in order to ensure effective access to justice, legal aid granted for proceedings before this Court is to cover, in whole or in part, the costs involved in legal assistance and representation in proceedings before the Court. The cashier of the Court is to be responsible for those costs.
11 In accordance with Article 94(2) and (3) of the Rules of Procedure, the grant of legal aid is subject to the twofold condition, first, that the applicant should, because of his economic situation, be wholly or partly unable to meet the costs involved in legal assistance and representation before the Court and, second, that his action should not appear to be manifestly inadmissible or manifestly unfounded.
12 By virtue of Article 95(2) of the Rules of Procedure, the application for legal aid must be accompanied by all information and supporting documents making it possible to assess the applicant’s economic situation, such as a certificate issued by the competent national authority attesting to that economic situation.
13 By virtue of Article 96(2) of the Rules of Procedure, the decision on the application for legal aid is to be taken by the President by way of an order, which must state the reasons if legal aid is refused.
14 Nevertheless, until such time as a decision should have been taken on the substance or on suspension of operation of the measures contested in this case, Article 2(2) and (3) of Regulation No 881/2002, adopted pursuant to Resolutions 1267 (1999), 1333 (2000), 1390 (2002), 1526 (2004) and 1617 (2005) of the United Nations Security Council, prohibited the Court, in principle, from paying any sum of money whatsoever to the applicant’s lawyers by way of legal aid, unless it had been formally established that the applicant had been granted a derogation to that end under Article 2a of Regulation No 881/2002, adopted in accordance with Resolution 1452 (2002) of the United Nations Security Council.
15 By letter recorded at the Court Registry on 12 October 2009, the applicant produced the derogation in question in the form of a licence issued on 23 September 2009 by the Asset Freezing Unit of HM Treasury, expressly authorising the Court to grant legal aid to the applicant by paying the sums concerned directly into his lawyers’ accounts.
16 Article 2a of Regulation No 881/2002 having thus been duly complied with, it is to be held, in the light of the information and supporting documents produced by the applicant, and without objection by the Council, that the conditions for the grant of legal aid have been satisfied and that aid is to be granted to the applicant.
17 The applicant’s present lawyers, N. Garcia, Solicitor, and E. Grieves, Barrister, are designated to represent him in this case, pursuant to the first subparagraph of Article 96(3) of the Rules of Procedure. In accordance with the third subparagraph of Article 96(3) of those rules, the amount granted by way of legal aid will be paid to them direct by the cashier of the Court.
18 As regards the amount of legal aid to be granted to the applicant, the President of the Second Chamber of the Court considers that it follows both from the broad logic and from the wording of Articles 94 and 95 of the Rules of Procedure that the grant of legal aid is as a rule restricted to responsibility for the costs of proceedings incurred either at the same time as, or after, the application for aid is made. On the other hand, save in exceptional circumstances, it would be neither in keeping with the letter and spirit of those provisions nor in the interests of the sound administration of justice that it should be possible for costs incurred before that date to be covered retrospectively by legal aid. So far as such costs are concerned, it must be supposed, unless proved to the contrary, that the applicant did not find himself unable to meet them and that he therefore has not satisfied one of the conditions for the grant of legal aid.
19 In the circumstances, it is to be found that Mr Al-Faqih made his application for legal aid only seven days before the hearing was due to be held on 15 September 2009, so causing the date of the hearing to be put back, whereas he had brought his action for annulment on 5 May 2006. He has not put forward any explanation capable of justifying the belatedness of the application. In those circumstances, the applicant has not shown that he was unable to meet the costs of these proceedings in the period before his application for legal aid was lodged. The legal aid granted must, therefore, be limited to the costs incurred by the applicant for the purpose of the hearing on 15 December 2009 and after that date.
20 In the order of the President of the Second Chamber of the Court of 3 February 2003 in Case T‑253/02 AJ Ayadi v Council, not published in the ECR, paragraph 12, proceedings very similar to those in the instant case, the President of the Second Chamber considered that, having regard to the subject-matter and nature of the case, to its importance from the legal point of view and the foreseeable difficulties of the case, to the foreseeable amount of work that the contentious procedure would require of the lawyers and to the interest represented by the case for the parties, the fees and disbursements of the lawyers designated could not, in principle, exceed a sum of EUR 10 000 for the whole procedure.
21 In the case giving rise to the order of the President of the Second Chamber of the Court of 3 April 2006 in Case T‑49/04 AJ Hassan v Council, not published in the ECR, where the circumstances resembled those of the present case, the Court held that the legal aid to be paid must be fixed at EUR 4 000.
22 It is, however, to be noted that this case has been joined to Cases T‑136/06, T‑137/06 and T‑138/06, that all the applicants are represented by the same lawyers and that legal aid has also been requested by the applicants in Cases T‑137/06 and T‑138/06. The similarity of and connection between Cases T‑135/06, T‑137/06 and T‑138/06 will therefore necessarily lead to economies of scale in respect of the preparation of the cases and the costs relating to participation in the common hearing, fixed for 15 December 2009.
23 Having regard to the foregoing considerations, the amount to be paid by way of legal aid to the lawyers instructed to represent the applicant must be fixed, in accordance with Article 96(3) of the Rules of Procedure, at EUR 2 500.
On those grounds,
THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
hereby orders:
1. Mr Al-Bashir Mohammed Al-Faqih is granted legal aid.
2. N. Garcia and E. Grieves are designated as lawyers to assist the applicant.
3. A sum of EUR 2 500 shall be paid to the applicant’s lawyers.
Luxembourg, 14 December 2009.