ORDER OF THE PRESIDENT OF
THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE
27 October 2006 (*)
(Restrictive measures taken against persons associated with Usama bin Laden, the Al-Qaida network and the Taliban – Freeze of funds – Action for annulment – Legal aid – Agreement of the United Nations Security Council)
In Case T-318/01 AJ,
Omar Mohammed Othman, residing in London (United Kingdom), represented initially by J. Walsh, Barrister, and F. Lindsley and S. Woodhouse, Solicitors, and subsequently by S. Cox, Barrister, and H. Miller, Solicitor,
applicant,
v
Council of the European Union, represented by M. Vitsentzatos and M. Bishop, acting as Agents,
and
Commission of the European Communities, represented by A. van Solinge and C. Brown, acting as Agents,
defendants,
supported by
United Kingdom of Great Britain and Northern Ireland, represented initially by J. Collins, and subsequently by C. Gibbs, acting as Agents, assisted by S. Moore, Barrister,
APPLICATION for legal aid,
THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
1 By application lodged at the Court Registry on 20 December 2001, Mr Othman brought an action against the Council and the Commission for annulment of, first, Council Regulation (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000 (OJ 2001 L 67, p. 1), and, second, Commission Regulation (EC) No 2062/2001 of 19 October 2001 amending, for the third time, Regulation No 467/2001 (OJ 2001 L 277, p. 25).
2 By document lodged at the Registry on 27 May 2002, Mr Othman made an application for legal aid under Article 94 of the Rules of Procedure of the Court of First Instance, in the version then in force.
3 By order of the President of the First Chamber of the Court of First Instance of 31 May 2002, the written procedure was suspended at the applicant’s request, without opposition from the other parties, pending delivery of the final judgment in Case T-306/01 Yusuf and Al Barakaat International Foundation v Council and Commission.
4 The written procedure was resumed on 21 September 2005.
5 By letter from the Registry of 3 October 2005, Mr Othman was, in particular, requested to submit his observations on the appropriate conclusions to be drawn, for the continuing conduct of this case, from the repeal of Regulation No 467/2001 and its replacement by 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-Qaida network and the Taliban, and repealing Regulation No 467/2001 (OJ 2002 L 139, p. 9).
6 By the same letter from the Registry, Mr Othman was invited to submit an updated application for legal aid.
7 In his reply, lodged at the Registry on 14 November 2005, Mr Othman stated that he was amending his application in order to seek annulment of Regulation No 881/2002 (‘the contested regulation’), in so far as it concerned him.
8 By order of 2 December 2005, the President of the Second Chamber of the Court of First Instance granted the United Kingdom leave to intervene in support of the forms of order sought by the defendants.
9 By document lodged at the Registry on 25 April 2006, Mr Othman submitted an updated application for legal aid.
10 In support of that application, Mr Othman submits that he has been detained since 11 August 2005 in Long Lartin prison (United Kingdom), having been detained in another prison from 23 October 2002 until 13 March 2005. As the United Kingdom Government has decided to extradite him to Jordan, he remains in detention pending judgment on his application for judicial review of that decision. Mr Othman explains that, as a detained person, he is not entitled to any social security benefits. Furthermore, he does not have any other income or capital. Mr Othman requests the Court to accept, as evidence of his economic situation, two recent decisions by the competent United Kingdom authority (Legal Services Commission) granting him legal aid in the context of national proceedings. To that effect, he relies on the order of the President of the Second Chamber of the Court of First Instance of 3 April 2006 in Case T-49/04 AJ Hassan v Council and Commission, not published in the ECR.
11 Relying, in particular, on the extreme political importance and the great legal complexity of this case, Mr Othman estimates at an amount not exceeding EUR 10 000 for the entire case the approximate amount of the fees and disbursements of his lawyers, whose hourly remuneration is GBP 125 for Mr Miller, Solicitor, and GBP 155 for Mr Cox, junior counsel. Moreover, that amount corresponds to the amount granted to Messrs Ayadi and Hassan by way of legal aid by orders of the President of the Second Chamber of the Court of First Instance of 3 February 2003 in Case T-253/02 AJ Ayadi v Council, not published in the ECR, and Hassan v Council and Commission, paragraph 10 above. Mr Othman argues that Cases T-253/02, T-49/04 and T-318/01 raise similar issues and therefore justify the grant of legal aid in an equivalent amount. In that connection, Mr Othman acknowledges that there is some overlap between the three cases and that the three applicants concerned are represented by the same solicitor. He argues, however, that that should not lead to any reduction in the amount of legal aid applied for, as each case is different.
12 Furthermore, it is apparent from the application for legal aid that Mr Othman requests that his interests continue to be represented by the lawyers who have assisted him until now. In that connection, Mr Othman states that the involvement of two lawyers is necessary in this case on account of the complexity of the proceedings.
13 Mr Othman expressly acknowledges that if he is granted legal aid no payment can be made to him or his lawyers by the cashier of the Court of First Instance until he has produced the notification from a competent authority, referred to in Article 2a(2) of the contested regulation, establishing that he has made a request for an exception from Article 2 of that regulation in order to receive legal aid in these proceedings, and that that exception has been granted in accordance with those provisions. Mr Othman states that he will submit such a request for an exception if he is granted legal aid.
14 By letter from the Registry of 16 May 2006, the Court of First Instance invited the defendants to submit observations on Mr Othman’s application for legal aid.
15 In its observations, lodged at the Court Registry on 31 May 2006, the Council states that it leaves it to the Court to determine whether the information and supporting documents produced by Mr Othman prove to the requisite standard that he needs legal aid.
16 As to the form of legal aid applied for, the Council regards as acceptable Mr Othman’s request that a solicitor and junior counsel be designated to assist him.
17 As regards the appropriate amount of the legal aid to be granted to Mr Othman, the Council finds it a matter of regret that he has not produced either a breakdown of the lawyers’ fees and disbursements already incurred or an estimate of those yet to be incurred. Furthermore, the Council observes that in Case T-49/04, which concerns similar issues, the amount of legal aid was fixed at EUR 4 000. The Council further observes that, even though there are certain factual differences between Cases T-318/01, T-253/02 and T-49/04, the legal context of the three cases is identical, which, it argues, should help to reduce lawyers’ costs. Moreover, Messrs Ayadi and Othman are represented by the same barrister, while Messrs Hassan and Othman are represented by the same solicitor. The Council observes in addition that Mr Othman did not submit his application for legal aid until 27 May 2002, whereas he had brought his main application on 20 December 2001, that is to say, five months previously. The Council points out that, in the order in Hassan v Council and Commission, paragraph 10 above (paragraph 21), the President of the Second Chamber of the Court of First Instance considered that the benefit of legal aid must, as a rule, be restricted to the covering of the costs of proceedings incurred either at the same time as, or after, the making of the application for legal aid. In this case, legal aid should therefore be granted only in respect of the costs relating to the reply and the hearing.
18 Consequently, the Council takes the view that if legal aid were to be granted in this case it should not amount to more than EUR 4 000.
19 In its observations, lodged at the Registry on 31 May 2006, the Commission states that it has no objection, in principle, to the grant of the legal aid applied for, on condition that it is subject to Mr Othman’s obtaining an exception under Article 2a of the contested regulation.
20 The Commission takes the view, however, that the similarities between Cases T‑318/01, T-253/02 and T-49/04, and the involvement of the same lawyers in the three cases, allow considerable synergies.
21 Accordingly, the Commission takes the view that the amount of legal aid to be granted should be less than EUR 10 000.
22 In that connection, it is clear from Article 94(1) of the Rules of Procedure of the Court of First Instance, in the version following its amendment on 12 October 2005 (OJ 2005 L 298, p. 1), that, in order to ensure effective access to justice, legal aid granted for proceedings before the Court of First Instance is to cover, in whole or in part, the costs involved in legal assistance and representation by a lawyer in proceedings before the Court of First Instance. The cashier of the Court of First Instance is to be responsible for those costs.
23 Under Article 94(2) and (3) of the Rules of Procedure as thus amended, the grant of legal aid is subject to a twofold condition: first, that the applicant, because of his economic situation, is wholly or partly unable to meet the costs involved in legal assistance and representation by a lawyer in proceedings before the Court of First Instance and, second, that his action does not appear to be manifestly inadmissible or manifestly unfounded.
24 Under Article 95(2) of the Rules of Procedure as thus amended, 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 his economic situation.
25 Under Article 96(2) of the Rules of Procedure as thus amended, 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 on which it is based where legal aid is refused.
26 By measure of organisation of procedure of 3 August 2006, the President of the Second Chamber of the Court of First Instance informed the parties that, in the light of the information and supporting documents provided by Mr Othman, without being opposed by the Council or the Commission, he proposed to find that the conditions relating to the grant of legal aid were satisfied in principle, and to grant legal aid in part to Mr Othman. He also proposed to designate Mr Othman’s then lawyers, Messrs S. Cox and H. Miller, to represent Mr Othman in this case in accordance with Article 96(3) of the Rules of Procedure, as amended. Furthermore, he stated that, in accordance with Article 96(3) of the Rules of Procedure as amended, the sum thus granted by way of legal aid would be paid directly by the cashier of the Court of First Instance to the lawyers instructed to represent Mr Othman.
27 The President of the Second Chamber of the Court of First Instance also considered, however, that until such time as a decision has been given on the substance of the case or application of the acts contested in this case has been suspended, the provisions of Article 2(2) and (3) of Regulation No 881/2002, adopted in accordance with United Nations Security Council Resolutions 1267 (1999), 1333 (2000), 1390 (2002), 1526 (2004) and 1617 (2005), prohibited the Court, in principle, from paying any sum of money whatsoever to Mr Othman’s lawyers by way of legal aid, unless it is formally established that he has been granted an exception for that purpose under Article 2a of Regulation No 881/2002, adopted in accordance with United Nations Security Council Resolution 1452 (2002).
28 Accordingly, the President of the Second Chamber of the Court of First Instance invited Mr Othman to produce, within a period to be determined by the Court Registry, the notification by a competent authority referred to in Article 2a(2) of Regulation No 881/2002, showing that he had submitted a request for an exception from Article 2 thereof, in order to obtain legal aid in these proceedings in an amount below EUR 10 000, and that that request had been granted in accordance with those provisions.
29 With a covering letter, lodged at the Court Registry on 26 September 2006, Mr Othman produced the notification in question in the form of a ‘Licence’ issued on 14 September 2006 by the Financial Sanctions Unit of the Bank of England.
30 Since the provisions of Article 2a of Regulation No 881/2002 therefore appear to have been duly complied with, it is appropriate formally to adopt the measures referred to in paragraph 26 above.
31 As regards the amount of legal aid to be granted to Mr Othman, the President of the Second Chamber of the Court of First Instance takes the view that it follows, both from the general scheme and the wording of Articles 94 and 95 of the Rules of Procedure, that the benefit of legal aid must as a rule be restricted to the covering of the costs of proceedings incurred either at the same time as, or after, the making of the application for legal aid. By contrast, save in specific circumstances, it would not be in accordance with either the letter or the spirit of those provisions, or in the interests of the proper administration of justice, for costs incurred before that date to be covered retrospectively by legal aid. As regards such costs, it must be assumed, until the contrary is proved, that the applicant was not unable to meet those costs and that he does not, therefore, satisfy one of the conditions for the grant of legal aid.
32 In this case, it is to be found that after bringing his action for annulment, on 20 December 2001, Mr Othman waited more than five months before submitting this application for legal aid on 27 May 2002.
33 Mr Othman has not put forward any explanation as to the lateness of this application, even though he must in the normal course of events have incurred most of the costs of bringing the action over the five months in question.
34 In those circumstances, Mr Othman has not shown that he was unable to meet the costs of these proceedings during the period before his application for legal aid was made.
35 Therefore, it is appropriate to limit legal aid to the costs incurred by Mr Othman for the purposes of lodging the reply and the future hearing and thereafter.
36 In the order in Ayadi v Council, paragraph 11 above (paragraph 12), which concerns proceedings very similar to the present, the President of the Second Chamber of the Court of First Instance held that, given the subject-matter and the nature of the dispute, its legal importance and the difficulties which may be foreseen in the case, the foreseeable extent of the work which the proceedings before the Court were going to entail for the lawyers, and the interest which the case presented for the parties, the fees and disbursements of the lawyers designated could not, in principle, exceed EUR 10 000 for the proceedings as a whole.
37 Furthermore, it must be observed that Messrs Ayadi and Othman are represented by the same barrister, while Messrs Hassan and Othman are represented by the same solicitor and that, as a general rule, representation of a party by a number of lawyers is not essential (see, to that effect, orders of the Court of Justice in Case C-104/89 DEP Mulder and Others v Council and Commission [2004] ECR I-1, paragraph 62, and of 15 December 2004 in Case C-39/03 P-DEP Cambridge Healthcare Supplies v Commission, not published in the ECR, paragraph 33) and cannot, therefore, be covered by legal aid.
38 Lastly, it must be noted that, by act lodged at the Court Registry on 22 September 2006, Mr Othman applied for a further stay of the proceedings, in accordance with Article 77(a) of the Rules of Procedure, pending delivery of the judgments of the Court of Justice in Cases C-402/05 P Kadi v Council and C-415/05 P Yusuf and Al Barakaat International Foundation v Council and Commission, arguing that, in so far as those cases raise questions essentially identical to those which arise in his own case, such a suspension would enable the costs connected to these proceedings to be limited.
39 In the light of the foregoing considerations, the amount to be paid by way of legal aid to the lawyers instructed to assist Mr Othman is set at EUR 5 000, in accordance with Article 96(3) of the Rules of Procedure.
On those grounds,
THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1. Mr Omar Mohammed Othman is granted legal aid.
2. Messrs S. Cox and H. Miller are designated as lawyers to assist Mr Othman.
3. The amount of EUR 5 000 shall be paid to the lawyers instructed to assist Mr Othman.
Luxembourg, 27 October 2006.