ORDER OF THE GENERAL COURT (Sixth Chamber)
6 September 2011 (*)
(Action for annulment – Representation by a lawyer who is not a third party – Manifest inadmissibility)
In Case T‑452/10,
ClientEarth, established in London (United Kingdom), represented by S. Hockman QC, and P. Kirch, lawyer,
applicant,
supported by
Kingdom of Denmark, represented by C. Vang and S. Juul Jørgensen, acting as Agents,
by
Republic of Finland, represented by H. Leppo and M. Pere, acting as Agents,
and by
Kingdom of Sweden, represented by K. Petkovska, A. Falk, S. Johannesson and C. Meyer-Seitz, acting as Agents,
interveners,
v
Council of the European Union, represented by C. Fekete and B. Driessen, acting as Agents,
defendant,
APPLICATION for annulment of the Council decision of 26 July 2010 refusing to grant the applicant full access to an opinion of the Council’s Legal Service (Document No 6865/09) on the European Parliament’s draft amendments to the Commission’s proposal for a regulation amending Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43),
THE GENERAL COURT (Sixth Chamber),
composed of E. Moavero Milanesi, President, N. Wahl (Rapporteur) and S. Soldevila Fragoso, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and procedure
1 The present action was brought on 24 September 2010 by Mr Stephen Hockman QC on behalf of the applicant, ClientEarth. The applicant is a charity registered with the Charity Commission for England and Wales since 26 March 2006. By fax of 3 February 2011, sent to the Registry of the General Court and signed by Mr Hockman, the latter stated that the name of Mr Pierre Kirch, lawyer, was to be added as the applicant’s representative.
2 It is evident from the extract from the register of the Charity Commission for England and Wales, annexed to the application in accordance with Article 44(5)(a) of the Rules of Procedure of the General Court, that Mr Hockman is one of ClientEarth’s seven trustees.
3 By letter of 30 March 2011, the Court requested Mr Hockman to provide it, in the context of a measure of organisation of procedure, with all relevant information concerning his position and functions in ClientEarth at the time when the action was lodged. Mr Hockman replied by letter of 14 April 2011.
4 By documents lodged at the Registry of the General Court on 18, 20 and 24 January 2011 respectively, the Republic of Finland, the Kingdom of Sweden, and the Kingdom of Denmark applied for leave to intervene in the present proceedings in support of the form of order sought by the applicant. By two orders of 10 and 22 March 2011, the President of the Sixth Chamber of the Court granted those applications.
5 The Kingdom of Sweden, the Republic of Finland and the Kingdom of Denmark lodged their statements in intervention on 9 May 2011 and on 6 and 9 June 2011 respectively.
Forms of order sought
6 The applicant claims that the Court should:
– declare that the Council of the European Union has infringed Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43);
– declare that the Council has infringed Article 294(6) TFEU;
– order the Council to grant full access to an opinion of the Council’s Legal Service (Document No 6865/09) on the European Parliament’s draft amendments to the Commission’s proposal for a regulation amending Regulation No 1049/2001;
– annul the decision refusing access to that document;
– order the Council to bear the costs, including those of the interveners.
7 The Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden claim that the Court should annul the decision refusing access to the document requested.
8 The Council contends that the Court should:
– dismiss the action as being partially inadmissible and partially unfounded;
– order the applicant to pay the costs.
Law
9 Under Article 111 of the Rules of Procedure, where an 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 takes the view that it has sufficient information from the case-file and has decided, pursuant to that provision, to give a decision on the action without taking further steps in the proceedings.
10 The first, third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, applicable to the General Court pursuant to Article 53 thereof, provide as follows:
‘The Member States and the institutions of the Union shall be represented before the Court of Justice 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 of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Court.’
11 The first paragraph of Article 21 of the Statute of the Court of Justice is worded as follows:
‘A case shall be brought before the Court of Justice 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 …’
12 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.’
13 According to settled case-law, it follows from the abovementioned provisions, 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 General Court, a party within the meaning of that article is not authorised to act in person, 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 Agreement on the European Economic Area (order in Case C‑174/96 P Lopes v Court of Justice [1996] ECR I-6401, paragraph 11; order of 29 November 1999 in Case T‑131/99 Shaw and Falla v Commission, not published in the ECR, paragraph 11; order in Case T‑79/99 Euro-Lex v OHIM (EU-LEX) [1999] ECR II‑3555, paragraph 27; and order in Case T‑184/04 Sulvida v Commission [2005] ECR II‑85, paragraph 8).
14 The 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 (Case 155/79 AM & S v Commission [1982] ECR 1575, paragraph 24; orders in EU-LEX, paragraph 28, and Sulvida v Commission, paragraph 9).
15 A legal person cannot for that reason be properly represented before the Courts of the European Union by a lawyer who has, within the body which he represents, extensive administrative and financial powers (see, to that effect, order of 29 September 2010 in Joined Cases C‑74/10 P and C‑75/10 P EREF v Commission, not published in the ECR, paragraphs 50 and 51).
16 Furthermore, according to the case-law, the provisions concerning the representation of non-privileged parties before the Court 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 his letter of 14 April 2011, Mr Hockman states that he is in a position properly to represent the applicant as he is neither employed by ClientEarth nor a director responsible for its daily management. He submits, in particular, that his functions as a trustee are limited to his attendance at twice yearly meetings of ClientEarth’s Board of Trustees, that he receives no financial benefit from ClientEarth, and that, in the present case, he is representing ClientEarth before the Court on a pro bono basis. He also states that the daily management of ClientEarth is exercised by its chief executive officer and other employees.
18 In that connection, it should be recalled that the requirement imposed by European Union law that a party be represented before the Court by an independent third party cannot be regarded as being a requirement designed solely to exclude representation by employees of the principal or by those who are financially dependent on it.
19 The essence of that requirement is, as is clear from paragraphs 13 and 14 above, to prevent private parties from bringing actions in person without recourse to an intermediary. So far as legal persons are concerned, the requirement of representation by a third party thus seeks to ensure that they are represented by someone who is sufficiently detached from the legal person which he is representing.
20 To that end, the financial or structural relationships that the representative has with his client cannot be such as to give rise to confusion between the client’s own interests and the personal interests of its representative. On the contrary, the representative must be objectively perceived as being a genuine intermediary between his client and the court concerned when he is entrusted with defending his client’s best interests, in accordance with the forms and limits defined by the procedural rules applicable.
21 It is clear from the facts of the present case that Mr Hockman cannot be regarded as being sufficiently detached from ClientEarth. Although he is not responsible for the day-to-day administration of ClientEarth, and does not alone decide ClientEarth’s policies, he nonetheless holds a position which leads him to assume responsibility for ClientEarth’s actions. In that connection, it must be emphasised that Mr Hockman is not a mere member of ClientEarth, but belongs to a well defined group (charity trustees) which holds all the powers in ClientEarth, including the appointment of new trustees as well as their reappointment.
22 It is, admittedly, true that the charity trustees have delegated the daily running of ClientEarth to an elected chief executive officer who is not himself a charity trustee, in accordance with ClientEarth’s memorandum of association. However, it is clear from that memorandum of association that the chief executive officer is required to exercise his functions in accordance with the policy and within the budget adopted by Mr Hockman and the other charity trustees. The chief executive officer is, in particular, required to report regularly to the trustees with regard to the activities which he undertakes.
23 Furthermore, it is impossible to regard Mr Hockman as being sufficiently detached from his client since he is involved, as a charity trustee, in the decision to appoint or remove the chief executive officer of ClientEarth, who himself has the power to grant or remove, on behalf of ClientEarth, the powers of attorney of lawyers who represent ClientEarth. In the present case, Mr Hockman’s power of attorney to represent ClientEarth before the Court for the purposes of the present dispute was granted in September 2010 by Mr James Thornton in his capacity as the chief executive officer of ClientEarth. In November 2010, Mr Hockman, in his capacity as a charity trustee, was one of the signatories to the decision reappointing Mr Thornton as ClientEarth’s chief executive officer.
24 It is clear from all of the foregoing that Mr Hockman’s role in ClientEarth is not compatible with the requirement that it be represented by a third party before the Courts of the European Union.
25 It follows that, as the originating application was signed by Mr Hockman, the present action was not brought in accordance with the provisions cited in paragraphs 10 to 12 above. The action must for that reason be dismissed as being manifestly inadmissible.
Costs
26 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Council. Finally, pursuant to the first subparagraph of Article 87(4) of the Rules of Procedure, the Kingdom of Denmark and the Republic of Finland and the Kingdom of Sweden are to bear their own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. The action is dismissed as being manifestly inadmissible.
2. ClientEarth shall bear its own costs and also pay those incurred by the Council of the European Union.
3. The Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden shall bear their own respective costs.
Luxembourg, 6 September 2011.
E. Coulon | | E. Moavero Milanesi |