ORDER OF THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
6 July 2011 *
(Restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban – Act of the Commission withdrawing the name of the person concerned from the list annexed to Regulation (EC) No 881/2002, without retroactive effect – Action for annulment – Legal aid)
In Case T-175/11 AJ,
AS, residing in London (United Kingdom), represented by H. Miller, Solicitor,
applicant,
v
Council of the European Union, represented by R. Szostak, G. Étienne and E. Finnegan, acting as Agents,
and
European Commission,
defendants,
APPLICATION for legal aid,
THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
makes the following
Order
1 On 21 October 2008, Mr AS’s name was added to the list drawn up by the Sanctions Committee established by United Nations Security Council Resolution 1267 (1999) (‘the Sanctions Committee’s list’).
2 By Commission Regulation (EC) No 1330/2008 of 22 December 2008 amending for the 103rd time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (OJ 2008 L 345, p. 60), Mr AS’s name was therefore added to the list of persons and entities whose funds and other economic resources should be frozen under 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 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) (‘the list at issue’). Regulation No 1330/2008 entered into force on 23 December 2008.
3 By application, the signed original of which was received at the Court Registry on 15 April 2009, Mr AS brought an action against the Council of the European Union and the European Commission seeking essentially, firstly, the annulment in part of Regulation No 881/2002, as amended by Regulation No 1330/2008, or of the latter regulation, and, secondly, compensation in respect of the damage allegedly caused by those acts. That action was registered under number [confidential].
4 By order of the President of the Seventh Chamber of the General Court of [confidential] in Case [confidential], Mr AS was granted legal aid in Case [confidential] and Mr J. Jones and Ms M. Arani were appointed to represent him.
5 By order of the President of the Seventh Chamber of the General Court of [confidential], the order of [confidential] was amended in so far as it appointed Mr Jones and Ms Arani as lawyers to act for Mr AS in Case [confidential]. Under point 2 of the operative part of that new order, Mr H. Miller and Mr E. Grieves were designated as the lawyers instructed to represent Mr AS in this case, with effect from 11 March 2010.
6 On 22 December 2010, Mr AS’s name was removed from the Sanctions Committee’s list.
7 On 6 January 2011, Mr AS’s lawyers wrote to the Commission to seek removal of his name from the list at issue with retroactive effect from the date of removal of his name from the Sanctions Committee’s list.
8 By Commission Regulation (EU) No 36/2011 of 18 January 2011 amending for the 143rd time Regulation No 881/2002 (OJ 2011 L 36, p. 12), Mr AS’s name was therefore removed from the list at issue. That regulation came into force, without retroactive effect, on 20 January 2011.
9 By document received at the Registry on 9 March 2011, Mr AS brought a further application for legal aid under Article 94 of the Rules of Procedure in Case [confidential], for the purpose of pursuing his action in Case [confidential]. That application was granted in part by order of the President of the Second Chamber of the General Court of [confidential].
10 By document received at the Registry on 17 March 2011, Mr AS brought an application for legal aid under Article 94 of the Rules of Procedure, with a view to bringing an action, against the Commission and the Council, seeking in essence, firstly, annulment of Regulation No 881/2002, as amended by Regulation No 36/2011, or annulment of the latter regulation, in so far as his name was not removed from the list at issue with retroactive effect from the date of removal of his name from the Sanctions Committee’s list and, secondly, compensation in respect of the damage allegedly incurred as a result of keeping his name on the list at issue beyond that date. That application was registered under number T-175/11 AJ.
11 In support of that application he claims in particular that he is in receipt of a net salary of GBP 410, that he is financially eligible for legal aid in England and Wales and that he is unable to meet the costs involved in legal assistance and representation by a lawyer before the General Court.
12 Furthermore, it is apparent from the application for legal aid that Mr AS would like Messrs H. Miller, T. Tridimas and C. Brown to defend his interests in the context of the new action which he proposes to bring.
13 As to whether that action appears to be admissible or well founded, for the purposes of Article 94(3) of the Rules of Procedure, Mr AS claims in particular that his name remained on the list at issue for 29 days after its removal from the Sanctions Committee’s list, during which time he continued to be subject to the restrictive measures provided for in Regulation No 881/2002. This resulted in a breach of his fundamental rights during that period. Furthermore, the Commission exceeded the limits of its powers under Article 2(3) of Regulation No 881/2002 by maintaining the effects of Regulation No 1330/2008 during that period or, at least, by not giving retroactive effect to Regulation No 36/2011, since those powers are conditional on the existence and continued inclusion of a name on the Sanctions Committee’s list. In support of this, Mr AS refers in particular to Article 7a(5) of Regulation No 881/2002 which provides that ‘[w]here the United Nations decide to de-list [from the Sanctions Committee’s list] a person, entity, body or group, or to amend the identifying data of a listed person, entity, body or group, the Commission shall amend [the list at issue] accordingly’.
14 By letter from the Registry of 11 April 2011, the General Court invited the defendants to submit observations on Mr AS’s application for legal aid.
15 In its observations, lodged at the Registry on 20 April 2011, the Council considers that it should be possible to fix the ceiling for the amount of legal aid granted at less than EUR 10 000.
16 The Commission did not lodge observations within the period given.
17 In that regard, 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 in proceedings before the General Court. The cashier of the General Court is to be responsible for those costs.
18 Under Article 94(2) and (3) of the Rules of Procedure, the grant of legal aid is subject to the twofold condition that, firstly, the applicant is, 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, secondly, that his action does not appear to be manifestly inadmissible or manifestly unfounded.
19 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, if it refuses the aid applied for, state the reasons on which it is based.
20 As to whether the action that Mr AS intends to bring appears to be admissible, it must be borne in mind that, according to settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as the applicant has an interest in the annulment of the contested measure. Such an interest presupposes that the annulment of the contested measure must of itself be capable of having legal consequences and that the action can therefore, if successful, procure an advantage for the party who brings it (see order in Case T-387/04 EnBW Energie Baden-Württemberg v Commission [2007] ECR II-1195, paragraph 96 and the case-law cited).
21 In the present case, Mr AS has not produced any evidence to show that annulment of Regulation No 36/2011 would procure any advantage for him, in so far as the date it took effect is not retroactive to the date of removal of his name from the Sanctions Committee’s list. In those circumstances it may be wondered whether this application for legal aid should be classified as an abuse, because it is for the purpose of bringing an action from which Mr AS cannot reasonably expect to derive any advantage besides a purely formal one.
22 As the proceedings now stand, the President of the Second Chamber of the General Court considers however that it cannot be entirely excluded that Mr AS has a sufficient interest in the action which he intends to bring, since Regulation No 36/2011 contains an implied refusal of his request of 6 January 2011 that the regulation be given retroactive effect (see, to that effect and by analogy, Case T-89/00 Europe Chemi-Con (Germany) v Council [2002] ECR II-3651, paragraphs 34 and 35).
23 That being said, the President of the Second Chamber of the General Court considers, in any event, that the action which Mr AS intends to bring appears to be manifestly unfounded within the meaning of Article 94(3) of the Rules of Procedure.
24 Firstly, the Commission fully complied with the requirements of Regulation No 881/2002, and in particular that of Article 7a(5) thereof, by ensuring that Mr AS’s name was removed from the list at issue following its removal from the Sanctions Committee’s list. In addition, given the time-limits to which it is subject, particularly in its official communications with the United Nations bodies, and the Christmas and New Year holidays during which Mr AS’s name was removed from the Sanctions Committee’s list, the Commission cannot be considered to have shown a lack of diligence capable of vitiating the legality of its action or incurring the liability of the European Union, in circumstances such as those in the present case, in adopting Regulation No 36/2011 on 18 January 2011, that is less than one month after the removal of the name of the person concerned from the Sanctions Committee’s list on 22 December 2010. In that regard, it should be pointed out that, firstly, Mr AS’s lawyers themselves waited until 6 January 2011 to contact the Commission with a view to having his name removed from the list at issue and, secondly, when Mr AS’s name was first added to the Sanctions Committee’s list, in October 2008, the Commission had required twice as long to add his name to the list at issue as it did to remove it.
25 Secondly, it should be borne in mind that, in general, the principle of legal certainty precludes a European Union measure from taking effect from a point in time before that measure was published, even if it may exceptionally be otherwise where a purpose relating to the public interest so demands and where the legitimate expectations of those concerned are duly respected and, in so far as it follows clearly from the terms, objectives or general scheme of the rules of European Union law concerned, that such effect must be given to them (see Case C-256/07 Mitsui & Co. Deutschland [2009] ECR I-1951, paragraph 32 and the case-law cited).
26 In the present case, neither the drafting history nor the wording of the provisions of or the preamble to Regulation No 881/2002 contains any indication that such a retroactive effect must be given to the measure by which the Commission removes the name of a person from the list at issue. The same is true of Regulation No 36/2011.
27 Furthermore, the inclusion of a person’s name on the list at issue shares the legislative nature of Regulation No 881/2002 and is of general application (see, to that effect and by analogy, judgment of 11 July 2007 in Case T-47/03 Sison v Council, not published in the ECR, paragraphs 145 and 146). It thus leads automatically to the imposition of obligations of a legislative nature on a large category of natural and legal persons, in accordance with Regulation No 881/2002 and subject to the penalties laid down by that regulation. In those circumstances, overriding considerations relating to legal certainty and the protection of legitimate expectations and the rights of third parties could clearly have led the Commission to refuse to give retroactive effect to Regulation No 36/2011. Such a refusal cannot therefore be deemed unlawful or improper.
28 Having regard to the foregoing considerations, the conditions relating to the grant of legal aid are not fulfilled and, therefore, the application for legal aid brought by Mr AS must be refused.
On those grounds,
THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
hereby orders:
The application for legal aid in Case T-175/11 AJ is refused.
Luxembourg, 6 July 2011.