ORDER OF THE PRESIDENT OF THE GENERAL COURT
26 March 2012 (*)
(Restrictive measures against certain officials of Belarus – Freezing of funds – Action for annulment – Legal aid)
In Case T‑196/11 AJ,
AX, residing in Polotsk (Belarus), represented initially by J. Masiokas, E. Bernotas and M. Embrektas, lawyers, and subsequently by M. Michalauskas, lawyer,
applicant,
v
Council of the European Union, represented by M. Bishop and F. Naert, acting as Agents,
defendant,
APPLICATION for legal aid,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
1 By document lodged at the Court Registry on 28 March 2011, the applicant, AX, submitted an application for legal aid pursuant to Article 94 of the Rules of Procedure of the General Court for the purposes of bringing an action against the Council of the European Union for the annulment, in whole or in part, of Council Decision 2010/639/CFSP of 25 October 2010 concerning restrictive measures against certain officials of Belarus, as amended by Council Decision 2011/69/CFSP of 31 January 2011 (‘Decision 2011/639’), in so far as that decision concerns him.
2 The applicant submits, on the basis of supporting documents which he has produced, that given, first, that his average monthly income for the period from 1 January to 28 February 2011 amounts to BYR 5 146 762 and, second, that the alimony and living allowance which he pays for the maintenance of his son amounts to a quarter of his monthly salary, he is unable to meet the costs involved in legal assistance and representation in proceedings before the Court.
3 As regards the question whether the action appears to be well founded for the purposes of Article 94(3) of the Rules of Procedure, the applicant submits that Decision 2010/639 infringes, first, the essential procedural rights set forth by the EU Treaty as it does not state the reasons on which it is based and does not guarantee the right to an effective legal remedy and, second, a number of the applicant’s fundamental rights, such as the right to an effective legal remedy, to a fair trial and to freedom of expression.
4 By letter of the Registrar of 13 May 2011, the Court invited the defendant to submit observations on the applicant’s application for legal aid.
5 In its observations, lodged at the Registry on 30 May 2011, the Council states that it is for the Court to assess whether the information and documentary evidence provided by the applicant constitute sufficient evidence of his need for legal aid, and adds that it does not raise any objection in that regard.
6 As regards the appropriate amount of legal aid to be granted, the Council finds it unsatisfactory that the applicant has not provided any estimate of the costs that will be incurred. The Council also notes that, while the present action is the first to be brought before the Court in relation to restrictive measures against certain officials of Belarus, it concerns issues similar to those raised in cases brought before the Court in relation to other restrictive measures. The Council submits that in those cases, the amount of the legal aid granted did not exceed EUR 10 000 (see, to that effect, order of the President of the Seventh Chamber of the General Court of 26 October 2009 in Case T‑127/09 AJ Abdulrahim v Council and Commission, not published in the ECR, and order of 18 August 2010 in Case T‑101/09 AJ Maftah v Council and Commission, not published in the ECR, and Case T‑102/09 AJ Elosta v Council and Commission, not published in the ECR). The Council accordingly takes the view that any legal aid granted in the present case should not exceed EUR 10 000.
7 In his comments in reply, received at the Court Registry on 7 July 2011, the applicant objects to legal aid being limited to a maximum of EUR 10 000, arguing that this amount does not take into account additional costs relating to the fact that he is unable to enter the territory of the European Union. On the basis of a preliminary estimate, the applicant submits that the cost of the proceedings should amount to at least EUR 30 000.
8 By letter received at the Court Registry on 7 February 2012, the applicant informed the Court that Mr Michalauskas had been appointed as his new representative in the present case and provided a new estimate of the cost of the proceedings, with a breakdown of the lawyers’ fees and disbursements, which, according to the applicant, amounts to EUR 11 500 to EUR 13 500 for the entire proceedings.
9 Under Article 2 of Decision 2010/639, no sum of money may in principle be paid to the applicant’s lawyer by way of legal aid, unless it has been formally established that authorisation has been granted for that purpose by the competent authority of a Member State under Article 3 of that decision (see, to that effect, Maftah v Council and Commission; Abdulrahim v Council and Commission; and orders of the President of the Second Chamber of the General Court of 14 December 2009 in Case T‑135/06 AJ Al‑Faqih v Council, Case T‑137/06 AJ Abdrabbah v Council and Case T‑138/06 AJ Nasuf v Council).
10 Accordingly, by letter of 5 July 2011, the President of the General Court invited the applicant to produce, within a period fixed by the Registrar to expire on 25 July 2011, authorisation from the competent authority of a Member State as required under Article 3(1)(b) of Decision 2010/639, establishing that the applicant had requested authorisation under Article 3 of that decision in order to obtain legal aid for the present proceedings and that that authorisation had been granted in accordance with that provision.
11 The applicant failed to produce the requested authorisation within the prescribed time-limits but, under cover of a letter lodged at the Court Registry on 25 July 2011, he produced a letter addressed to the Ministry of Foreign Affairs of the Republic of Lithuania, which is an authority competent to grant such authorisation in accordance with Annex II to Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1). In those circumstances, the Registrar of the Court set a new time-limit for the applicant to produce the requested authorisation from the competent authority of the Republic of Lithuania, expiring on 19 October 2011. By two letters received at the Registry on 19 October 2011 and 8 November 2011 respectively, the applicant submitted the replies from the Ministry of Foreign Affairs of the Republic of Lithuania to his two successive requests, by which it refused to issue the authorisation requested.
12 By measure of organisation of procedure of 24 November 2011, the President of the General Court repeated his invitation to the applicant to produce the requested authorisation from the competent authority of a Member State within a period fixed to expire on 12 December 2011. As part of the measure of organisation of procedure, the President of the General Court also stated that, on the basis of a prima facie assessment of the present case, he was considering granting legal aid to the applicant and, in that connection, he emphasised the importance of legal aid as a means of ensuring effective access to justice, in accordance with the third paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and Article 94(1) of the Rules of Procedure of the General Court.
13 The applicant failed to produce the requested authorisation but, under cover of letters lodged at the Court Registry on 10 and 23 December 2011, he produced three other requests for authorisation, addressed respectively to the Ministry of Foreign Affairs of the Republic of Lithuania, the Ministry of Foreign Affairs of the Republic of Latvia and the Ministry of Economy, Finance and Industry of the Republic of France. By letter lodged at the Registry on 7 February 2012, the applicant produced an authorisation issued on 2 February 2012 by the Ministry of Economy, Finance and Industry of the Republic of France.
14 Article 94(1) of the Rules of Procedure provides that, in order to ensure effective access to justice, legal aid granted for proceedings before the General Court is to cover, in whole or in part, the costs involved in legal assistance and representation by a lawyer before that Court.
15 Pursuant to Article 94(2) and (3) of the Rules of Procedure, the grant of legal aid is subject to the twofold condition that, first, the applicant should, because of his economic situation, be wholly or partly unable to meet the costs involved in legal assistance and representation in proceedings before the Court and that, second, his action should not appear to be manifestly inadmissible or manifestly unfounded.
16 Under 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 situation.
17 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, if refusing the aid applied for, state the reasons on which it is based.
18 As regards the first condition referred to in paragraph 15 above, it must be held that, in the light of the document produced by the applicant, his economic situation is such that he is wholly or partly unable to meet the costs involved in legal assistance and representation by a lawyer in the proceedings before the Court. As was pointed out in paragraph 2 above, the applicant’s average monthly income amounts to BYR 5 146 762 for the period from 1 January to 28 February 2011, which – as indicated by the applicant and not contested by the Council – corresponds to approximately EUR 1 200 according to the official exchange rate of the National Bank of the Republic of Belarus as at 28 March 2011. The applicant’s taxable income from 1 January until 3 December 2010, according to a certificate delivered by the Ministry of Taxes and Duties of the Republic of Belarus, amounted to BYR 81 077 890, which corresponds to approximately EUR 11 340 according to the official exchange rate of the National Bank of the Republic of Belarus as at 25 July 2011, that is to say, less than EUR 1 000 per month. From the supporting documents provided by the applicant, it appears that he does not have at his disposal any resources or income other than his taxable net salary. Moreover, the applicant must pay alimony and a living allowance for the maintenance of his son, the amount of which corresponds to a quarter of his monthly salary. In the light of those facts, it can be concluded that the applicant meets the first condition for eligibility for legal aid.
19 As regards the second condition referred to in paragraph 15 above, it must be held, in the light of the pleas and arguments put forward by the applicant and referred to in paragraph 3 above, and without prejudice to the Court’s decision in the main proceedings, that the action in respect of which legal aid is sought does not appear to be manifestly inadmissible or manifestly unfounded.
20 As regards the amount of legal aid to be granted to the applicant, it must be made clear at the outset, in accordance with the third subparagraph of Article 96(3) of the Rules of Procedure, that – in the light of the subject-matter and the nature of the dispute, of its legal importance and also of the difficulties that might be foreseen in the case, of the foreseeable extent of work which the proceedings before the Court would entail for his lawyers and of the interest which the case presents for the parties – the fees and disbursements of the lawyers appointed must not, in principle, exceed EUR 7 000 for the entire proceedings.
21 In the light of the foregoing considerations, it must be concluded that the applicant should therefore be granted legal aid, whilst the final decision on the amount of fees and disbursements, which will be fixed on the basis of a detailed breakdown to be submitted to the Court at the end of the case, should be reserved.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. AX is granted legal aid.
2. Mr Michalauskas is appointed as lawyer to act for AX.
3. An amount of fees and disbursements, fixed on the basis of a detailed breakdown, to be submitted to the General Court at the end of the case but in principle not exceeding a maximum of EUR 7 000, is granted to the lawyer appointed.
4. That amount shall be paid directly to that lawyer.
Luxembourg, 26 March 2012.