Corte di giustizia UE n. 1049/2013

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 5 September 2013 ( * ) (Appeals – [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA] – Representation by a lawyer who is not a third party – Action for annulment manifestly inadmissible – Grounds of the appeal manifestly unfounded) [OSCURATO:PERSONA] C‑573/11 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 10 November 2011, ClientEarth, established in London ([OSCURATO:PERSONA]), represented by P. [OSCURATO:PERSONA], avocat, applicant, the other parties to the proceedings being: [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by C. Fekete and B. Driessen, acting as Agents, defendant at first instance, [OSCURATO:PERSONA] of Denmark, Republic of [OSCURATO:PERSONA], [OSCURATO:PERSONA] of Sweden, interveners at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of M. Berger, President of the [OSCURATO:PERSONA], A. [OSCURATO:PERSONA] and E. Levits (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: N. Jääskinen, Registrar: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, makes the following [OSCURATO:PERSONA] 1 By its appeal, ClientEarth seeks the setting aside of the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 6 September 2011 in [OSCURATO:PERSONA] T‑452/10 ClientEarth v [OSCURATO:PERSONA] (‘the order under appeal’), by which that court dismissed as manifestly inadmissible its action seeking the annulment of the decision of the [OSCURATO:PERSONA] of 26 July 2010 refusing to grant it full access to an opinion of the [OSCURATO:PERSONA] ([OSCURATO:PERSONA] 6865/09) on the draft amendments by the [OSCURATO:PERSONA] to the [OSCURATO:PERSONA]’s proposal for a regulation amending Regulation (EC) No 1049/2001 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 30 May 2001 regarding public access to [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] documents (OJ 2001 L 145, p. 43). The proceedings before the [OSCURATO:PERSONA] and the order under appeal 2 By application lodged at the Registry of the [OSCURATO:PERSONA] on 24 September 2010, [OSCURATO:PERSONA], QC lodged, on behalf of the applicant, a charitable association registered with the [OSCURATO:PERSONA] for England and Wales, an action seeking the annulment of the decision referred to in the preceding paragraph and an order that the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] grant access to the document requested. 3 In paragraphs 1 and 2 of the order under appeal, the [OSCURATO:PERSONA] found that it was evident from the extract from the register of the [OSCURATO:PERSONA] for England and Wales that [OSCURATO:PERSONA] is one of ClientEarth’s seven trustees. [OSCURATO:PERSONA] also noted that, by fax of 3 February 2011, sent to the Registry of the [OSCURATO:PERSONA] and signed by [OSCURATO:PERSONA], the latter stated that the name of [OSCURATO:PERSONA], avocat, was to be added as the applicant’s representative. 4 In paragraphs 21 and 24 of the order under appeal, the [OSCURATO:PERSONA] took the view that it is clear from the facts of the present case that [OSCURATO:PERSONA] cannot be regarded as being sufficiently detached from ClientEarth to be considered a ‘third party’ for the purposes of the first, third and fourth paragraphs of [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], applicable to the [OSCURATO:PERSONA] by virtue of [OSCURATO:PERSONA] 53 of that Statute, entitled to represent or assist a party before the [OSCURATO:PERSONA] of Justice. 5 Thus, on the basis of the first subparagraph of [OSCURATO:PERSONA] 43(1) of the Rules of Procedure of the [OSCURATO:PERSONA], requiring that ‘the original of every pleading must be signed by the party’s agent or lawyer’, the [OSCURATO:PERSONA] dismissed the action as manifestly inadmissible, without further examining the matter. Forms of order sought by the parties 6 ClientEarth requests the [OSCURATO:PERSONA] of Justice to set aside the order under appeal and to order the [OSCURATO:PERSONA] to pay the costs. 7 [OSCURATO:PERSONA] asks the [OSCURATO:PERSONA] to dismiss the appeal as unfounded and order the appellant to pay the costs. The appeal 8 [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where an appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a report from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], by reasoned order dismiss the appeal in whole or in part without opening the oral procedure. 9 In support of its appeal, ClientEarth raises a single ground of appeal, split into two parts, alleging an infringement and an incorrect interpretation of [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice. 10 By the two parts of the single ground of appeal, the appellant submits that the [OSCURATO:PERSONA] erred in law, first, in the application of the concept of ‘independence’ and, second, in the application of the concept of ‘third party’. Since those two concepts are intrinsically connected, it is appropriate to examine the two parts of the single ground of appeal together. 11 As the [OSCURATO:PERSONA] rightly noted in paragraph 14 of the order under appeal, it follows from the settled case-law of the [OSCURATO:PERSONA] of Justice that the conception of the lawyer’s role in the [OSCURATO:PERSONA] legal order, which stems from the legal traditions common to the [OSCURATO:PERSONA] and on which [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice is based, is that of collaborating in the administration of justice and of being required to provide, in full independence and in the overriding interests of justice, such legal assistance as his client needs (see, to that effect, [OSCURATO:PERSONA] 155/79 AM & S v [OSCURATO:PERSONA] [1982] ECR 1575, paragraph 24; [OSCURATO:PERSONA] C‑550/07 P [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others [2010] ECR I‑8301, paragraph 42; and order of 6 June 2013 in [OSCURATO:PERSONA] C‑535/12 P [OSCURATO:PERSONA] v Ombudsman , paragraph 19 and the case-law cited). 12 In that regard, the [OSCURATO:PERSONA] correctly noted, in paragraph 15 of the order under appeal, that a legal person cannot be properly represented before the Courts of the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] C‑74/10 P and C‑75/10 P EREF v [OSCURATO:PERSONA] , paragraphs 50 and 51). 13 Next, the [OSCURATO:PERSONA] was correct to find, in paragraph 18 of the order under appeal, that the requirement imposed by [OSCURATO:PERSONA] law that a party be represented before the [OSCURATO:PERSONA] 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. 14 The essence of that requirement is, as is clear from paragraph 12 of the present order, to prevent private parties from acting for themselves before the Courts without using an intermediary. The requirement for representation by a third party seeks to ensure that legal persons are defended by a representative who is sufficiently distant from the legal person which he represents. 15 In that context, it must be borne in mind that, in accordance with established case-law, the review of the classification of the facts by the [OSCURATO:PERSONA] in the light of [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] is a matter for the latter (see EREF v [OSCURATO:PERSONA] , paragraph 45 and the case-law cited). 16 In that regard, the [OSCURATO:PERSONA] held that, having regard to all the evidence supplied by the applicant in the proceedings at first instance and the extract from the register of the [OSCURATO:PERSONA] for England and Wales, annexed to the application in accordance with [OSCURATO:PERSONA] 44(5)(a) of the Rules of Procedure of the [OSCURATO:PERSONA], the nature of the office held by [OSCURATO:PERSONA] within ClientEarth is not compatible with his position as representative of that body before the [OSCURATO:PERSONA]. 17 None of the considerations or arguments raised by the appellant before the [OSCURATO:PERSONA] of Justice is capable of establishing that the assessment made by the [OSCURATO:PERSONA] in paragraphs 21 to 23 of the order under appeal, relating to [OSCURATO:PERSONA] functions as a charity trustee within ClientEarth, can be regarded as constituting an error of law in the light of [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice. 18 It follows that the [OSCURATO:PERSONA] was correct to hold that [OSCURATO:PERSONA] cannot give the guarantee of independence of a lawyer representing a party which is required under [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice. 19 In those circumstances, the ground of appeal relied on by ClientEarth in support of its appeal, alleging that the [OSCURATO:PERSONA] erred in law in respect of the interpretation of [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA], must be rejected as being manifestly unfounded. 20 It must, however, be pointed out that, in accordance with the established case-law of the [OSCURATO:PERSONA] of Justice, any fact which relates to the admissibility of the action for annulment brought before the [OSCURATO:PERSONA] is likely to constitute a question of public policy which the [OSCURATO:PERSONA] of Justice, hearing an appeal, is required to raise of its own motion (see, to that effect, the judgment of 29 November 2007 in [OSCURATO:PERSONA] C‑176/06 P [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] , paragraph 18, and [OSCURATO:PERSONA] C‑362/06 P Sahlstedt and Others v [OSCURATO:PERSONA] [2009] ECR I‑2903, paragraphs 21 to 23). 21 Thus, it must be stated that the [OSCURATO:PERSONA] omitted, when examining the admissibility of the action for annulment brought by [OSCURATO:PERSONA] on behalf of the applicant, to give consideration to the fact, noted in paragraph 1 of the order under appeal, that, on 3 February 2011, [OSCURATO:PERSONA] informed the Registry of the [OSCURATO:PERSONA] of a change in the representation of ClientEarth before the [OSCURATO:PERSONA] by appointing [OSCURATO:PERSONA] as the lawyer responsible for the duties previously undertaken by [OSCURATO:PERSONA], without having been requested to do so in advance. 22 Although such a change was apparently impliedly regarded, in the orders of 9 November in [OSCURATO:PERSONA] T‑120/10 ClientEarth and Others v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] T‑449/10 ClientEarth and Others v [OSCURATO:PERSONA] , as curing a defect within the meaning of [OSCURATO:PERSONA] 44 of the Rules of Procedure of the [OSCURATO:PERSONA], the fact that the [OSCURATO:PERSONA] did not take the view that that change amounted to curing a defect cannot, however, entail the annulment of the order under appeal. 23 The operative part of the order under appeal remains well-founded at law, having regard to the exhaustive nature of the conditions listed in [OSCURATO:PERSONA] 44(3) to (5) of the Rules of Procedure of the [OSCURATO:PERSONA], which may be put in order under [OSCURATO:PERSONA] 44(6). Those conditions do not, at present, include the appointment of a new lawyer such as that made by the appellant in the present case. 24 It is appropriate to substitute that legal basis for the wrongful omission of the [OSCURATO:PERSONA] to take into consideration all the facts stated in paragraph 1 of the order under appeal (see, to that effect and mutatis mutandis , order of 15 February 2012 in [OSCURATO:PERSONA] C‑208/11 P [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , paragraph 35). 25 It follows from all of the foregoing considerations that the appeal must be dismissed in its entirety as manifestly unfounded. Costs 26 [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, which applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, 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 [OSCURATO:PERSONA] has applied for costs and the appellant’s ground of appeal has been unsuccessful, the latter must be ordered to pay the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. ClientEarth shall pay the costs. [Signatures] * Language of the case: English.