ORDER OF THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
18 August 2010 (*)
(Restrictive measures directed against persons associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Freezing of funds – Action for annulment – Legal aid – Agreement of the United Nations Security Council)
In Case T‑101/09 AJ,
Elmabruk Maftah, residing in South Harrow (United Kingdom), represented by E. Grieves, Barrister, and A. McMurdie, Solicitor,
applicant,
v
Council of the European Union, represented by E. Finnegan and R. Szostak, acting as Agents,
and
European Commission, represented by E. Paasivirta and P. Aalto, acting as Agents,
defendants,
APPLICATION for legal aid,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
makes the following
Order
1 By document lodged at the Registry of the Court on 6 March 2009, Mr Maftah submitted an application for legal aid pursuant to Article 94 of the Rules of Procedure of the General Court for the purpose of bringing an action against the Council and the Commission for annulment of (i) 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, and repealing Council Regulation (EC) No 467/2001 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 (OJ 2002 L 139, p. 9), and (ii) Commission Regulation (EC) No 1330/2008 of 22 December 2008 amending for the 103rd time Regulation No 881/2002 (OJ 2008 L 345, p. 60), in so far as those acts concern him.
2 In support of that application, he claims, in particular, producing a number of supporting documents, that: he receives GBP 65.90 unemployment benefit and GBP 131.50 income support per week; that he has a dependent spouse; that he is financially eligible to receive legal aid in England; and that he is unable to meet the costs involved in legal assistance and representation in proceedings before the General Court.
3 In addition, it is clear from the application for legal aid that Mr Maftah requests that his interests should continue to be represented in the action he proposes to bring by the lawyers who have assisted him in connection with that application.
4 As regards the question whether the action appears to be well founded for the purposes of Article 94(3) of the Rules of Procedure, Mr Maftah claims in particular, referring to the judgment in Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, that the evidence which formed the basis for the decision to include him in Annex I to Regulation No 881/2002 was not communicated to him; that the communication of that evidence would, in any event, be insufficient to guarantee him a fair trial; and that the measures imposed under Regulation No 881/2002 infringe the general principles of proportionality and legal certainty.
5 By letter of the Registrar of 25 March 2009, the General Court invited the defendants to submit observations on Mr Maftah’s application for legal aid.
6 In its observations, lodged at the Registry on 7 April 2009, the Council declares that it leaves it to the General Court to assess whether the information and documentary evidence provided by Mr Maftah constitute sufficient evidence of the applicant’s need for legal aid.
7 So far as the form of legal aid sought is concerned, the Council finds it acceptable that Mr Maftah’s request is for aid for the instruction of a solicitor and junior counsel.
8 As regards the appropriate amount of legal aid to be granted to Mr Maftah, the Council deplores the fact that the latter has not submitted an estimate. The Council notes also, first, that the present case concerns issues similar to those which were the subject of the order of the President of the Second Chamber of the General Court of 3 February 2003 in Case T-253/02 AJ Ayadi v Council, not published in the ECR, which limited the amount of legal aid granted to EUR 10 000 and, second, that the same solicitor represents the applicant in Case T‑102/09 AJ Elosta v Council and Commission, the legal background to which is identical to that in the present case.
9 Therefore, the Council takes the view that if legal aid were granted in this case it should be for an amount less than EUR 10 000.
10 In its observations lodged at the Registry on 3 April 2009, the Commission states that it has no objection in principle to the grant of the legal aid applied for, although it must be subject to Mr Maftah’s obtaining an exception under Article 2a of Regulation No 881/2002.
11 The Commission notes also that Mr Maftah has not produced an estimate of the appropriate amount of legal aid applied for. It observes that the present case is similar to the cases which gave rise to the order of the President of the Second Chamber of the General Court in Ayadi v Council and the order of the President of the Second Chamber of the General Court of 3 April 2006 in Case T-49/04 AJ Hassan v Council and Commission, not published in the ECR.
12 In this regard, Article 94(1) of the Rules of Procedure makes clear 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. The cashier of the General Court is responsible for those costs.
13 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, because of his economic situation, should be wholly or partly unable to meet the costs involved in legal assistance and representation in proceedings before the General Court and that, second, his action should not appear to be manifestly inadmissible or manifestly unfounded.
14 Pursuant to 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.
15 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 it refuses the aid applied for, state the reasons on which it is based.
16 By measure of organisation of procedure of 23 September 2009, the President of the Seventh Chamber of the General Court informed the parties that, in the light of the information and supporting documents supplied by Mr Maftah, and without opposition from the Council or the Commission, he proposed to declare that the conditions for the granting of legal aid were in principle satisfied and to grant the applicant legal aid of an amount required to be less than EUR 10 000. He also proposed, in accordance with Article 96(3) of the Rules of Procedure, to designate Mr Maftah’s current lawyers, E. Grieves and A. McMurdie, to represent Mr Maftah in the action which he proposes to bring.
17 The President of the Seventh Chamber of the General Court also took the view, however, that until the Court had given a ruling on the merits or suspended the application of the acts contested in the present case, 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) and 1822 (2008), prohibited the Court in principle from paying any sum of money to Mr Maftah’s lawyers by way of legal aid, unless it was formally established that Mr Maftah had 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).
18 Therefore, the President of the Seventh Chamber of the Court invited Mr Maftah to produce, within a period that was fixed by the Registrar of the Court to expire on 16 October 2009, the notification from a competent authority referred to in Article 2a(2) of Regulation No 881/2002 establishing that he had requested an exception from Article 2 of that regulation in order to obtain legal aid in the course of the present proceedings for an amount required to be less than EUR 10 000, and that that request for an exception had been granted in accordance with those provisions.
19 Mr Maftah failed to produce the document thus requested within the prescribed period. Furthermore, on being questioned by the Registry, Mr Maftah’s representatives were not in a position to confirm Mr Maftah’s intentions with regard to the production of that document or to the further progress of the proceedings. In those circumstances, the Registrar of the Court set a new time-limit, expiring on 2 April 2010, for production of the document in question. That period expired without the document being produced and without any explanation being provided by Mr Maftah’s representatives in that regard. However, under cover of a letter lodged at the Registry on 26 May 2010, Mr Maftah produced a letter from HM Treasury of 18 May 2010 confirming that that authority would issue him shortly with the notification requested under Article 2a of Regulation No 881/2002. In the same letter Mr Maftah argued, however, that in the light of Case C‑340/08 M and Others [2010] ECR I‑0000 payment of the legal aid sought was not covered by that provision and should not therefore be contingent upon production of the document in question. Finally, under cover of a letter lodged at the Registry on 8 July 2010, Mr Maftah produced the notification in question, in the form of a General Licence issued by HM Treasury.
20 In those circumstances, it is appropriate that the measures referred to in paragraph 16 above should be formally adopted.
21 As regards the amount of legal aid to be granted to Mr Maftah, it should be noted that, in the order in Ayadi v Council, which related to proceedings very like these, the President of the Second Chamber of the General Court found 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 presented for the parties, the fees and disbursements of the lawyers appointed might not, in principle, exceed EUR 10 000 for the entire proceedings. The same principles were applied in the order of the President of the Second Chamber of the General Court in Hassan v Council and Commission, and in the order of the President of the Second Chamber of the General Court of 27 October 2006 in Case T‑318/01 AJ Othman v Council and Commission (not published in the ECR).
22 It is, furthermore, to be noted that Mr Maftah is represented by the same barrister and solicitor as represent the applicant in Case T‑102/09 AJ Elosta v Council and Commission, the legal context of which is the same as that in the present case, that the barrister representing Mr Maftah represented Mr Hassan in the case giving rise to the order in Hassan v Council and Commission and that, as a general rule, representation of a party by several lawyers is not necessary (see, to that effect, orders of the Court of 6 January 2004 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 DEP Cambridge Healthcare Supplies v Commission, not published in the ECR, paragraph 33) and cannot therefore be paid for out of legal aid.
23 Lastly, it should be noted that the annulment proceedings which Mr Maftah proposes to bring appear to raise questions identical, in essence, to those settled by the Court of Justice in Kadi and Al Barakaat International Foundation v Council and Commission.
24 Having regard to the foregoing considerations, it must be concluded that the conditions for granting legal aid are met and that Mr Maftah must therefore be granted legal aid, whilst reserving 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.
25 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, and of the foreseeable extent of the work the proceedings would entail for the parties, it must be made clear at the outset, in accordance with the third subparagraph of Article 96(3), that the fees and disbursements of the lawyers appointed must not, in principle, exceed a maximum of EUR 6 000.
26 In view of the restrictive measures to which Mr Maftah is subject under Regulation No 881/2002, in particular under Article 2 of that regulation, freezing his funds and economic resources, that sum will be paid directly to the two lawyers appointed to represent Mr Maftah’s interests during the proceedings he proposes to bring.
27 Whether that payment should, in principle, be allowed by way of an exception in pursuance of Article 2a of Regulation No 881/2002, is not a question to be addressed in the present order. It is sufficient to note that Mr Maftah has already supplied a licence to the competent authorities under the exception procedure laid down in Article 2a (see, also order of the Court of 2 September 2009 in Case C‑403/06 P AJ Ayadi, not published in the ECR).
On those grounds,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. Mr Elmabruk Maftah is granted legal aid.
2. Edward Grieves and Anne McMurdie are appointed as lawyers to assist Mr Maftah.
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 6 000, is granted to the lawyers appointed.
4. That amount shall be paid direct to those lawyers.
Luxembourg, 18 August 2010.