ORDER OF THE COURT OF FIRST INSTANCE (Sixth Chamber)
19 November 2009 (*)
(Action for annulment – Representation by a lawyer who is not a third party – Manifest inadmissibility)
In Case T‑94/07,
European Renewable Energies Federation ASBL (EREF), established in Brussels (Belgium), represented by D. Fouquet, lawyer,
applicant,
v
Commission of the European Communities, represented by N. Khan, acting as Agent,
defendant,
ACTION for annulment of Commission Decision C(2006) 4963 final of 24 October 2006 relating to a syndicated credit facility, and a loan, granted in the context of the construction by Framatone ANP of a nuclear power plant for Teollisuuden Voima Oy,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Sixth Chamber),
composed of A.W.H. Meij (Rapporteur), President, V. Vadapalas and L. Truchot, Judges,
Registrar: E. Coulon,
makes the following
Order
Procedure
1 By application lodged at the Registry of the Court of First Instance on 26 March 2007 the applicant, European Renewable Energies Federation ASBL (EREF), brought an action for annulment of Commission Decision C(2006) 4963 final of 24 October 2006 relating to a syndicated credit facility, and a loan, granted in the context of the construction by Framatone ANP of a nuclear power plant for Teollisuuden Voima Oy (‘the contested decision’). According to that decision, those loans did not constitute State aid.
2 By letter from the Registry of 20 November 2008, the Court requested the applicant to produce, in the context of a measure of organisation of procedure, an official copy of the act appointing Ms Fouquet, the lawyer representing the applicant in the present case and the person who signed the application, as director of EREF.
3 On 15 December 2008, the applicant complied with the Court’s request and lodged a copy of the minutes of the EREF Board meeting of 29 June 2004 (‘the minutes of 29 June 2004’) at the Registry of the Court. However, the applicant pointed out that that copy had not been officially registered in accordance with national law. Furthermore, that copy was, in part, crossed out.
4 By letter from the Registry of 16 January 2009, the Court requested the applicant to produce, in the context of an additional measure of organisation of procedure, a clean copy of the minutes of 29 June 2004, and to confirm that the act appointing Ms Fouquet as director of EREF had not been officially registered in accordance with the applicable national law.
5 On 13 February 2009 the applicant complied with the Court’s request and lodged a clean copy of the minutes of 29 June 2004 at the Registry of the Court, and confirmed that that document had not been officially registered.
6 Upon a change in the composition of the Chambers of the Court of First Instance, the Judge‑Rapporteur was assigned to the Sixth Chamber, to which the present case was consequently assigned.
7 As Judge Tchipev was unable to sit in the present case, the President of the Court designated Judge Truchot, pursuant to Article 32(3) of the Rules of Procedure, to complete the Chamber.
Forms of order sought
8 The applicant claims that the Court should:
– annul the contested decision;
– declare void the financial arrangement, which is the subject‑matter of the contested decision;
– in the alternative, order the Commission to initiate, in relation to this case, a formal procedure pursuant to Article 88(2) EC;
– order the Commission to pay the costs.
9 The Commission contends that the Court should:
– dismiss the action as inadmissible or, in the alternative, as unfounded;
– order the applicant to pay the costs.
Admissibility
10 Under Article 111 of the Rules of Procedure, where the action is manifestly inadmissible, the Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action. In the present case, the Court considers that it has sufficient information from the documents on the case‑file and rules, pursuant to that provision, to give a decision on the action without taking further steps in the proceedings.
11 The first, third and fourth paragraphs of Article 19 of the Statute of the Court of Justice, which apply to the Court of First Instance pursuant to Article 53 of that statute, state:
‘The Member States and the institutions of the Communities shall be represented before the Court by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer.
…
Other parties must be represented by a lawyer.
Only a lawyer authorised to practise before a court of a Member State or another State which is a party to the Agreement on the European Economic Area [(EEA)] may represent or assist a party before the Court.’
12 The first paragraph of Article 21 of the Statute of the Court further provides:
‘A case shall be brought before the Court by a written application addressed to the Registrar. The application shall contain the applicant’s name and permanent address and the description of the signatory
…’
13 Under the first subparagraph of Article 43(1) of the Rules of Procedure:
‘The original of every pleading must be signed by the party’s agent or lawyer.’
14 According to settled case law, it is apparent from the abovementioned provisions, and in particular from the use of the term ‘represented’ in the third paragraph of Article 19 of the Statute of the Court of Justice, that, in order to bring an action before the Court of First Instance, a party within the meaning of that article is not authorised to act itself but must use the services of a third person authorised to practise before a court of a Member State or of a State which is a party to the EEA Agreement (order of the Court in Case C‑174/96 P Lopes v Court of Justice [1996] ECR I‑6401, paragraph 11; orders of the Court of First Instance of 29 November 1999 in Case T‑131/99 Shaw and Others v Commission, not published in the ECR, paragraph 11; of 8 December 1999 in Case T‑79/99 Euro‑Lex v OHIM(EU‑LEX) [1999] ECR II‑3555, paragraph 27; and of 13 January 2005 in Case T‑184/04 Sulvida v Commission [2005] ECR II‑85, paragraph 8).
15 That requirement to have recourse to a third party is based on a conception of the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of justice, such legal assistance as his client needs. Such a conception reflects legal traditions common to the Member States and is also to be found in the Community legal order as is demonstrated by, precisely, Article 19 of the Statute of the Court of Justice (Case 155/79 AM & S v Commission [1982] ECR 1575, paragraph 24, orders in EU‑LEX, paragraph 28 and in Sulvida v Commission, paragraph 9).
16 Furthermore, according to the case law, the provisions concerning the representation of non‑privileged parties before the Court of First Instance must be interpreted, so far as possible, independently, without reference to national law (see, to that effect, order in EU-LEX, paragraph 26).
17 In the present case, it should be noted at the outset that, according to the minutes produced by the applicant in the context of measures of organisation of procedure, on 29 June 2004 Ms Fouquet was appointed director of EREF, a title which she held at the date of lodging the originating application for the present action.
18 Next, Article 20 of EREF’s statutes provides as follows:
‘The Board can appoint a director to whom it delegates the daily management of the association, together with the usage of the signature, linked to this task of management. The Board will determine the director’s power and mandate and eventually the salary or honorarium’.
19 It follows that Ms Fouquet cannot be considered, for the purposes of the present case, to be a third party, within the meaning of the order in Lopes v Court of Justice, cited above, independent of the applicant. The application in the present case was lodged on behalf of the applicant by Ms Fouquet in her capacity as a lawyer. Yet, it is clear from Article 20 of EREF’s statutes that, in her role as director, Ms Fouquet is responsible for the daily management of EREF.
20 In addition, the minutes of 29 June 2004 show that Ms Fouquet has individual authority to sign for all withdrawals of money from EREF accounts not exceeding a specific amount. Furthermore, her signature is also required, together with that of EREF’s president and another member of the Board, to make withdrawals exceeding that amount.
21 In those circumstances, it appears that Ms Fouquet is not authorised to represent EREF validly in these proceedings.
22 Accordingly, as the application was signed by Ms Fouquet, the present action has not been filed in accordance with the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice.
23 Therefore, the action must be dismissed as manifestly inadmissible.
Costs
24 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, it must be ordered to bear its own costs and pay those of the Commission, in accordance with the form of order sought by the Commission.
On those grounds,
THE COURT OF FIRST INSTANCE (Sixth Chamber)
hereby orders:
1. The action is dismissed as manifestly inadmissible;
2. European Renewable Energies Federation ASBL (EREF) shall bear its own costs and pay those of the Commission of the European Communities.
Luxembourg, 19 November 2009.