ORDER OF THE COURT OF FIRST INSTANCE
(Third Chamber)
23 April 2009 (*)
(Formal inadmissibility of the application – Name of the applicant – Legal person governed by private law – Authority – Manifest inadmissibility – Intervention)
In Case T-383/08,
New Europe, established in Brussels (Belgium), represented by Ariti‑Marina Alamanou, lawyer,
applicant,
v
Commission of the European Communities,
defendant,
APPLICATION for annulment of the Commission decision taken in the form of a letter of 2 July 2008 refusing to inform the applicant of the names of the companies and persons cited in the documents disclosed by the Commission relating to the ‘Eximo’ case,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of J. Azizi, President, E. Cremona (Rapporteur) and S. Frimodt Nielsen, Judges,
Registrar: E. Coulon,
makes the following
Order
Procedure and form of order sought in the application
1 By application lodged at the Registry of the Court of First Instance on 11 September 2008, the applicant brought the present action.
2 It claims that the Court should:
– annul the Commission decision taken in the form of a letter of 2 July 2008 refusing to communicate to the applicant the names of the companies and individuals cited in the documents disclosed by the Commission relating to the ‘Eximo’ case;
– order the defendant to pay the costs.
3 By letter of 19 December 2008, the European Data Protection Supervisor requested leave to intervene in support of the form of order sought by the applicant.
Facts and procedure
4 According to the first page thereof, the application was brought by ‘New Europe, residing in Avenue de Tervuren 96, 1040 Brussels, Belgium, represented by Alexandros Koronakis [,] hereinafter referred to as the “applicant” [,] represented by Ariti-Marina Alamanou of the Athens Bar, having an address for service in Avenue de Tervuren 96, 1040 Brussels, Belgium’.
5 The application is signed by Ms Alamanou. The documents produced pursuant to Article 44(3) to (5) of the Rules of Procedure of the Court of First Instance are, first, certification of Ms Alamanou’s rights of audience as a member of the Athens Bar and, secondly, authorisation signed by Mr Alexandros Koronakis for Ms Alamanou to ‘act on behalf of Mr Alexandros Koronakis before the Court of First Instance ... in the context of the action for annulment brought on 11 September 2008 under Article 230 EC against the Commission’s decision on public access to documents’.
6 Since Ms Alamanou had not chosen an address for service or specified a fax number or other technical means of communication to which service might be addressed, the Registry requested, on 6 October 2008, by means of a letter sent by registered post to Ms Alamanou’s address cited on the first page of the application and in accordance with the third subparagraph of Article 44(2) of the Rules of Procedure, first, production of proof of the existence in law of ‘New Europe’, secondly, production of a document establishing that the authority granted to Ms Alamanou had been properly conferred by a representative of the applicant authorised for that purpose and, thirdly, an address for service and fax number for the purposes of subsequent service.
7 Service of that letter having been unsuccessful, the Registry contacted Ms Alamanou by telephone by dialling the number indicated on her business stamp, affixed below her signature on the application, in order to request her to produce the documents in question.
8 In order to send her the letter fixing a new time-limit for the purposes of regularisation, the Registry used, on Ms Alamanou’s request, the fax number which she had communicated. Thus, on 11 November 2008, the Registry sent by fax a letter fixing 27 November 2008 as the time-limit given to the applicant to produce the documents requested.
9 By letter lodged at the Registry of the Court of First Instance on 26 November 2008, Ms Alamanou produced the following documents as proof of the existence in law of the applicant.
10 Ms Alamanou first produced two extracts from the Official Journal of the Hellenic Republic, fascicle of Limited Liability Companies (OJ No 3487 of 18 June 1997 and OJ No 10929 of 1 September 2004) providing information on the company ‘Eidiseografikos Organismos “News Corporation” Anonymi Etaireia’. It appears from those extracts that that company has its seat in the Palaia Penteli Attikis municipality (Greece) and that Mr Vasileios Koronakis and Ms Alexandra Koronaki are, respectively, the chairperson and one of the members of its board of directors.
11 Secondly, Ms Alamanou produced a copy of minutes of a meeting of the board of directors of the company ‘Eidiseografikos Organismos “News Corporation” A.E.’ which took place on 20 May 2008 at its seat in Palaia Penteli. Those minutes state that the subject of that meeting was ‘the representation of the New Europe newspaper before the European Courts’. The minutes also state that the chairperson of the board of directors of that company, Ms Alexandra Koronaki, explained why Mr Alexandros-Vasileios Koronakis, editor of the New Europe newspaper and member of the board of directors of the company ‘Eidiseografikos Organismos “News Corporation” A.E.’, should represent that company before the ‘European Courts’. Finally, the minutes state that the board of directors approved the chairperson’s motion unanimously and in accordance with Article 20 of the company’s articles of association. The minutes are signed by Ms Alexandra Koronaki, in her capacity as chairperson of the board of directors.
12 By letter of 9 December 2008, the Registry set a new time-limit for the applicant in respect of an additional regularisation. The applicant was requested to produce evidence establishing that the person who signed the authorisation given to Ms Alamanou was authorised to do so and to indicate an address for service and a fax number for the purposes of subsequent service. Since there was no address for service, and in view of the failure of the service noted at Ms Alamanou’s address in Belgium, the letter was sent by registered post to her address in Greece.
13 By letter of 14 January 2009, the letter referred to above was returned to the Registry by the Greek postal service as unclaimed. No reply was received from Ms Alamanou within the prescribed period. Despite several attempts by the Registry to reach the lawyer by telephone, it had not been possible to establish contact.
Law
14 Pursuant to Article 111 of the Rules of Procedure of the Court of First Instance, where an action is manifestly inadmissible, the Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action.
15 In the present case, the Court has decided, pursuant to that article, to give a decision without taking further steps in the proceedings.
16 Under Article 44(5) of the Rules of Procedure, an application made by a legal person governed by private law is to be accompanied by:
(a) the instrument or instruments constituting and regulating that legal person or a recent extract from the register of companies, firms or associations or any other proof of its existence in law;
(b) proof that the authority granted to the applicant’s lawyer has been properly conferred by someone authorised for the purpose.
17 The requirement to lodge the proof referred to in Article 44(5)(b) of the Rules of Procedure is one of the conditions for the application to be deemed to be in order and failure to comply with that requirement gives rise, under Article 44(6) of the Rules of Procedure, to the fixing of a reasonable period within which the applicant is required to put the application in order and produce the document in question. If the applicant fails to produce the required document within the period laid down, the Court is to decide whether the non‑compliance with that condition renders the application formally inadmissible.
18 The requirement to lodge proof that the authority granted to an applicant’s lawyer has been properly conferred by someone authorised to represent the legal person is intended to enable the Court to establish that the lawyer is authorised to act on behalf of the applicant and therefore constitutes an essential formal requirement, failure to comply with which will render the action inadmissible (order in Case T‑34/03 Hecq v Commission [2004] ECR-SC I-A-143 and II-639, paragraph 10).
19 In the present case, first, the two extracts from the Official Journal of the Hellenic Republic produced by Ms Alamanou do not prove the existence in law of any entity called ‘New Europe’ which would have standing to bring legal proceedings before the Community Courts, but rather the existence in law of the company ‘Eidiseografikos Organismos “News Corporation” A.E.’. The same is true of the minutes produced by Ms Alamanou, which refer to a meeting of the board of directors of the company ‘Eidiseografikos Organismos “News Corporation” A.E.’ of 20 May 2008 concerning ‘the representation of the New Europe newspaper before the European Courts’. It follows that ‘New Europe’ is the name of a newspaper and that proof of the existence in law of a legal person with that name has not been adduced.
20 Secondly, the minutes of 20 May 2008 refer to authorisation given to Mr Alexandros Koronakis to represent the company ‘Eidiseografikos Organismos “News Corporation” A.E.’, and not an entity called ‘New Europe’, before the ‘European Courts’. Moreover, those minutes were signed by Ms Alexandra Koronaki as chairperson of the board of directors. However, according to the two extracts from the Official Journal of the Hellenic Republic produced by Ms Alamanou and providing details of the composition of the board of directors of the company ‘Eidiseografikos Organismos “News Corporation” A.E.’, Ms Alexandra Koronaki is a member of that board and not the chairperson. In addition, inasmuch as the Court does not have available to it the articles of association of the company ‘Eidiseografikos Organismos “News Corporation” A.E.’, it is not in a position to establish whether the abovementioned authorisation conferred on Mr Alexandros Koronakis was made in accordance with those articles of association and whether, therefore, Mr Koronakis had the status to grant authority to Ms Alamanou.
21 Thirdly, it must be observed that under the terms of the authority granted to Ms Alamanou by Mr Alexandros Koronakis, the latter authorised Ms Alamanou to act in the present case, not on behalf of the company ‘Eidiseografikos Organismos “News Corporation” A.E.’ or on behalf of any entity called ‘New Europe’, but on his own behalf.
22 In those circumstances, it is not possible for the Court to establish the identity of the applicant, its intention to bring the present action, or the proof that the authority granted to Ms Alamanou was properly conferred on her by someone authorised for that purpose, as required by Article 44(5)(b) of the Rules of Procedure.
23 The Court also takes note of the numerous attempts by the Registry to secure regularisation of the application on the part of the applicant and the fact that it was impossible for the Registry, after 9 December 2008, to establish contact with the applicant’s lawyer.
24 In the light of the foregoing considerations, the present application must be dismissed as being manifestly inadmissible, without its being necessary to serve it on the defendant.
25 Accordingly, there is no need to rule on the application for leave to intervene submitted by the European Data Protection Supervisor.
Costs
26 As the present order has been adopted prior to service of the application on the defendant and before the latter could have incurred costs, it is sufficient to decide that the applicant shall bear its own costs pursuant to Article 87(1) of the Rules of Procedure.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby orders:
1. The application is dismissed as being inadmissible.
2. The applicant shall bear its own costs.
3. There is no need to rule on the application for leave to intervene submitted by the European Data Protection Supervisor.
Luxembourg, 23 April 2009.