ORDER OF THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
30 June 2011 (*)
(Legal aid – Death of the applicant in the course of the proceedings – Retroactive grant)
In Case T-4/10 AJ,
Faraj Faraj Hassan Al Saadi, residing in Leicester (United Kingdom), represented by J. Jones, Barrister and M. Arani, Solicitor,
applicant,
v
European Commission, represented by M. Konstantinidis, T. Scharf and E. Paasivirta, acting as Agents,
defendant,
APPLICATION for legal aid,
THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
makes the following
Order
1 By application received at the Registry of the General Court on 7 January 2010, Mr Faraj Faraj Hassan Al Saadi brought an action in his own name for annulment in part of Commission Regulation (EC) No 954/2009 of 13 October 2009 amending for the 114th time 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, in so far as the applicant appears on the list of persons, groups and entities covered by those provisions (OJ 2009 L 269, p. 20). The action was registered under the number T-4/10.
2 By document lodged at the Registry on the same day, Mr Al Saadi applied for legal aid pursuant to Article 94 of the Rules of Procedure of the General Court. That application was registered under number T-4/10 AJ.
3 In support of that application he stated, inter alia, producing documentary evidence: that he received unemployment benefit to the value of GBP 60 a week; his spouse had no financial income; he had two dependent children; he was financially eligible for legal aid in England and Wales; and that he was unable to meet the costs involved in his legal assistance and representation by a lawyer in proceedings before the General Court.
4 Furthermore, according to the application for legal aid, Mr Al Saadi requests that the protection of his interests continue to be provided by his counsel, Mr Jones and Ms Arani.
5 With regard to whether the action appears to be well founded, in accordance with Article 94(3) of the Rules of Procedure, Mr Al Saadi invokes, in particular, the continuing and deliberate violation of his fundamental rights, allegedly by the European Commission in spite of and in defiance of the judgment of the Court of Justice in Joined Cases C-399/06 P and C-403/06 P Hassan v Council and Commission [2009] ECR I-11393. Moreover, the merits of this action are manifest in the light of the General Court’s judgment in Case T-85/09 Kadi v Commission [2010] ECR II-0000.
6 By letter from the Registry of 10 February 2010, the General Court requested the Commission to lodge its observations on Mr Al Saadi’s application for legal aid.
7 In its observations, lodged at the Registry on 23 February 2010, the Commission declared that, taking into account Mr Al Saadi’s economic situation, as described in his request for legal aid, it did not oppose the applicant’s request, provided that the award for legal aid was conditional on Mr Al Saadi’s obtaining an exemption in accordance with Article 2a of Regulation No 881/2002.
8 The exemption in question was in fact awarded to Mr Al Saadi by letter from HM Treasury of 30 October 2009, received at the Registry of the General Court on 15 January 2010.
9 By e-mail of 5 September 2010, counsel for Mr Al Saadi informed the General Court of the applicant’s accidental death.
10 By way of measures of organisation of procedure in Joined Cases T-4/10 and T‑4/10 AJ, on 17 November 2010 the General Court (Second Chamber) asked counsel for Mr Al Saadi to inform the General Court of how succession to the applicant’s estate stood and of the intentions of any possible successors as regards resuming the proceedings.
11 By letter of 2 December 2010, counsel for Mr Al Saadi informed the General Court that, following the latter’s death, his name had been removed from the list annexed to Regulation No 881/2002 and that, consequently, ‘there can be no successors as regards continuing the proceedings in this case’.
12 As regards the costs relating to the main proceedings, counsel for Mr Al Saadi request that they should be borne in their entirety by the Commission. In case this application is not granted, they request the General Court to grant the application for legal aid, amounting to GBP 8 651.40, as substantiated by the detailed breakdown attached to their letter dated 2 December 2010.
13 By letter from the Registry of 13 December 2010, the Commission was requested to submit its written observations on the counsel’s letter.
14 By letter received at the Registry on 24 January 2011, the Commission indicated its agreement to the request for an order that there was no need to adjudicate in the main proceedings, as set out in the letter in question.
15 With regard to the costs incurred in the main proceedings, the Commission objects to the claims that it should bear the costs in their entirety.
16 As regards the application for legal aid, as detailed in the letter from the counsel for Mr Al Saadi of 2 December 2010, the Commission does not consider the request for a sum total of GPB 8 651.40 to be unreasonable, and states that it has no objection to their being granted that sum by way of legal aid.
17 By order of even date, the General Court (Second Chamber) has held that there is no need to adjudicate on this action in the main proceedings in Case T-4/10 and ordered each party to bear its own costs.
18 It therefore remains to consider the application for legal aid.
19 According to Article 94(1) of the Rules of Procedure, 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 in proceedings before the General Court. The cashier of the General Court is to be responsible for those costs.
20 Under 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 be, because of his economic situation, wholly or partly unable to meet the costs involved in legal assistance and representation by a lawyer in proceedings before the General Court and, second, that the action should not appear to be manifestly inadmissible or manifestly unfounded.
21 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 his economic situation.
22 Under 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 on which it is based in the event of refusal.
23 In the present case, the President of the Second Chamber of the General Court finds that, in the light of the information and supporting documents provided by Mr Al Saadi, and in the absence of opposition by the Commission, the conditions relating to the grant of legal aid were theoretically satisfied when the application was lodged.
24 In addition, in light of the judgments relied on by Mr Al Saadi, the application in the main proceedings did not appear to be manifestly inadmissible or manifestly unfounded.
25 As regards Mr Al Saadi’s death in the course of the proceedings, which has the effect of rendering the application devoid of purpose, there being no resumption of proceedings by his successors, it does not, however, preclude the applicant from being granted retroactive legal aid, so as to guarantee him effective access to justice. Indeed, in circumstances such as those in the present case, characterised by the urgency and severity of the measures imposed on Mr Al Saadi in respect of freezing his funds, neither he nor his counsel, who agreed to provide him with legal assistance and to represent him before the General Court without waiting for the decision on the application for legal aid, should be penalised by the circumstance, beyond their control, that the decision was delivered only after the applicant’s death.
26 It is therefore appropriate to grant retroactively the application for legal aid and to appoint, also retroactively, Mr Al Saadi’s current lawyers to represent him in the main proceedings.
27 As regards the amount of legal aid to be granted to Mr Al Saadi, the President of the Second Chamber of the General Court holds that the hourly rate of fees of GBP 100 invoiced by his counsel is appropriate in circumstances such as those of the present case. In light of the detailed breakdown of disbursements and fees of the lawyers attached to their letter dated 10 December 2010, which appears to be duly substantiated, and without any opposition by the Commission, that amount must be fixed at the sum of GBP 8 651.40, specifying that it is to be paid to the lawyers directly by the cashier of the General Court.
On those grounds,
THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
hereby orders:
1. Faraj Faraj Hassan Al Saadi is granted legal aid.
2. J. Jones and M. Arani are appointed as the lawyers representing Mr Al Saadi in Case T–4/10.
3. A sum of GBP 8 651.40 in disbursements and fees is awarded to the lawyers appointed and shall be paid to them directly by the cashier of the General Court.
Luxembourg, 30 June 2011.