CELEX: 62010CJ0137
Articles 207(2) EC and 282 EC
Representation of the European Communities before the national courts
Powers conferred on the Commission
Delegation of the power of representation to other Community institutions
Conditions

This reference for a preliminary ruling concerns the interpretation of Articles 207(2) EC and 282 EC.
The reference has been made in proceedings between, on the one hand, the European Communities, represented by the Council
of the European Union, and, on the other, the Région de Bruxelles-Capitale (‘Brussels Capital Region’) (Belgium) regarding
the validity, under the rules of the European Union, of the urban planning charges imposed on the Council by the Brussels
Capital Region. The reference concerns the conditions and methods in accordance with which an institution of the European
Communities, other than the European Commission, must be represented in proceedings before a court of a Member State.

Legal context

European Union (‘EU’) law
Given that the facts of the dispute before the referring court took place before 1 December 2009, the date on which the Treaty
of Lisbon entered into force, the relevant provisions of primary law of the European Union are those which were in force before
that date.
Paragraphs 2 and 3 of Article 207 EC provided:
‘2.      The Council shall be assisted by a General Secretariat, under the responsibility of a Secretary-General, High Representative
for the common foreign and security policy, who shall be assisted by a Deputy Secretary-General responsible for the running
of the General Secretariat. The Secretary-General and the Deputy Secretary-General shall be appointed by the Council acting
by a qualified majority.
The Council shall decide on the organisation of the General Secretariat.
3.      The Council shall adopt its Rules of Procedure.
…’
Under Article 281 EC:
‘The Community shall have legal personality.’
Article 282 EC was worded as follows:
‘In each of the Member States, the Community shall enjoy the most extensive legal capacity accorded to legal persons under
their laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings.
To this end, the Community shall be represented by the Commission.’
The wording of Article 185 EAEC was identical to that of Article 282 EC.
Article 47 TEU provides:
‘The Union shall have legal personality.’
Article 335 TFEU, which corresponds to Article 282 EC, now provides as follows:
‘In each of the Member States, the Union shall enjoy the most extensive legal capacity accorded to legal persons under their
laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings.
To this end, the Union shall be represented by the Commission. However, the Union shall be represented by each of the institutions,
by virtue of their administrative autonomy, in matters relating to their respective operation.’

National legislation
By decrees of 12 June and 18 December 2003, the Gouvernement de la Région de Bruxelles-Capitale (Government of the Brussels
Capital Region; ‘Brussels Regional Government’) ordered that, for every grant of planning permission, town planning charges
had to be paid, which the Region allocated to public services and, more specifically, to the implementation, alteration and
renovation of social housing.

The dispute in the main proceedings and the questions referred for a preliminary ruling
In order to be able to accommodate the delegations of the new Member States, the Council applied to the Brussels Regional
Government on 20 November 2002 for planning permission to carry out alterations to its main building, known as the ‘Justus
Lipsius’. The planning permission sought was granted by documents of 12 and 22 December 2003. However, it was indicated in
those same documents that, within twelve months of the permission being granted, the Council had to pay EUR 1 109 750 by way
of town planning charges.
On the view that such charges amounted to a tax from which the European Communities were exempt on the basis of Article 3
of the Protocol on Privileges and Immunities of the European Communities (originally annexed to the Treaty establishing a
Single Council and a Single Commission of the European Communities, signed on 8 April 1965, and then, by virtue of the Treaty
of Amsterdam, to the EC Treaty), the Council lodged an administrative appeal on 23 January 2004 with the Collège d’urbanisme
(Town Planning Board) of the Brussels Capital Region contesting the charges in question. As the Collège d’urbanisme did not
respond within the statutory time-limit, the Council lodged an appeal with the Brussels Regional Government on 10 November
2004, seeking amendment of the planning permission in relation to those charges.
By decision of 14 July 2005, the Brussels Regional Government declared the appeal inadmissible on the ground that it was out
of time. The Council, representing the European Communities, brought an action before the Conseil d’État (Belgian Council
of State) for annulment of that decision. The Brussels Regional Government – the defendant in that action – raised a preliminary
plea to the effect that the application was inadmissible because the Council was not properly represented.
The Conseil d’État states that, pursuant to Articles 282 EC and 185 EAEC, the Commission had in fact, by document of 23 September
2005, authorised the Council to bring an action for annulment. However, the Conseil d’État observes that, according to the
terms of the mandate, the Commission had specified a particular person as having authority to bring proceedings, namely ‘Mr
Jean Claude Piris [Director-General of the Legal Service of the Council], or any other such person as may be appointed by
him, to bring before the Belgian Conseil d’État an action for annulment of the decision of the Brussels Regional Government
of 14 July 2005’. On the other hand, the Conseil d’État notes, it is stated in the application initiating proceedings that
the action was brought by ‘the European Communities, represented by the Council of the European Union in the person of its
Deputy Secretary-General, Mr Pierre de Boissieu’. This means that the application was lodged by a person other than the person
whom the European Commission had authorised by name, although it does not appear that Mr Piris had in turn appointed Mr de
Boissieu to bring the action.
In those circumstances, on the view that the scope of Articles 207 EC and 282 EC may in fact be open to discussion, ‘particularly
in relation to the jurisdiction of the Conseil d’État to ensure that the body competent to act for the legal person constituting
the applicant took its decision to bring proceedings in compliance with the rules of representation relating to that person’,
decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)      Must Article 282 [EC], in particular the phrase “[t]o this end, the Community shall be represented by the Commission”, contained
in the [second] sentence of that article, be interpreted as meaning that an institution is properly authorised to represent
the Community simply by virtue of the existence of an authority by which the Commission has delegated to that institution
its powers of representation in legal proceedings, irrespective of whether or not that authority appointed by name a natural
person empowered to represent the delegate institution?
(2)      If not, can a national court such as the Conseil d’État verify the admissibility of an action lodged by a European institution
which has been duly authorised to bring legal proceedings by the Commission, pursuant to the [second] sentence of Article
282, [EC], by examining whether that institution is represented by the appropriate natural person empowered to bring proceedings
before a national court?
(3)      In the alternative, and in the event of an affirmative reply to the foregoing question, must the first sentence of the first
subparagraph of Article 207(2) [EC], more specifically the phrase “assisted by a Deputy Secretary-General responsible for
the running of the General Secretariat”, be interpreted as meaning that the Deputy Secretary-General of the Council may properly
represent the Council for the purposes of bringing proceedings before the national courts?’

Consideration of the questions referred

The first question
By the first question, the Conseil d’État asks, in essence, whether the mandate by which the Commission delegated to another
Community institution, in a dispute which concerned the latter, the power accruing to the Commission under Article 282 EC
to represent the Communities before a national court was validly granted, regardless of whether that mandate specified by
name a natural person as having authority to represent the institution thus empowered.
It should be noted, first, that the facts giving rise to that question relate to provisions of the EC Treaty which are no
longer in force. Moreover, the only question raised by the national court concerns the admissibility of the action brought
by the European Communities. Thus, notwithstanding the fact that the questions referred are framed in broad and abstract terms,
the examination of those questions and the Court’s reply need go no further than is necessary to enable the national court
to rule on that issue.
It should be noted, secondly, that, in accordance with the system established by the Treaties under Articles 281 EC and 184
EAEC, the Communities alone – and not their institutions – were vested with legal personality as legal persons governed by
public law. That remains true now, in accordance with Article 47 TEU, as regards the European Union. Under Articles 282 EC
and 185 EAEC, the Communities had the most extensive legal capacity accorded to legal persons under national laws; they were
able, in particular, to acquire or dispose of movable and immovable property and to be a party to legal proceedings and, to
that end, they were represented by the Commission.
It was possible for the Commission to delegate that power through a mandate granted to the other institutions ‘in matters
relating to their respective operation’.
In the Community legal order, it was also in the interests of sound administration that the Communities were in practice represented,
in the case of acts for the acquisition or disposal of goods or proceedings before the national courts, by the institution
concerned by the act or the proceedings in question. The reason for this is that the latter institution, in the context of
its administrative and operational autonomy, was better placed to assess and to defend the interests of the Communities in
those cases.
As regards the scope of the mandate referred to above, the nature of the Commission’s powers of representation and delegation
are such that it was able to give another institution a mandate, either with or without specifying a particular natural person
for the purposes of that representation. In such cases, both the institution thus empowered and the natural person – if one
were appointed – were entitled to authorise a lawyer to represent the Communities.
It should be noted that the practice of delegating authority in that way was confirmed and enshrined in Article 335 TFEU.
Thus, from then on, in accordance with that provision, each institution may, by virtue of the administrative autonomy of that
institution and in matters relating to its operation, represent the European Union.
In the case before the referring court, it seems that the natural person specified in the mandate was the legal adviser –
namely, the Head of the Legal Service of the Council – who in turn authorised a lawyer to represent the institution in the
proceedings before the national court, in so far as the presence of a lawyer was required in accordance with the procedural
rules of the Member State concerned.
Consequently, where there was a chain of successive delegations – the first being the Commission’s delegation of the Council,
with a natural person from that institution being specifically authorised to exercise the delegated power, and the second
being that person’s authorisation of a lawyer for the purposes of representing the Council before a national court – the delegation
of power was validly granted by the Commission and the institution thus empowered was properly represented.
In the light of the above considerations, the answer to the first question is that the mandate by which the Commission delegated
to another Community institution, in a dispute concerning the latter, the power accruing to the Commission under Article 282
EC to represent the Communities before a national court was validly granted, regardless of whether that mandate specified
by name a natural person as having authority to represent the institution thus empowered. In such cases, both the institution
thus empowered and the natural person – if one were specified – were entitled to authorise a lawyer to represent the Communities.

The second and third questions
In view of the answer to the first question, there is no need to reply to the second and third questions referred.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
The mandate by which the European Commission delegated to another Community institution, in a dispute concerning the latter,
the power accruing to the Commission under Article 282 EC to represent the European Communities before a national court was
validly granted, regardless of whether that mandate specified by name a natural person as having authority to represent the
institution thus empowered. In such cases, both the institutions thus empowered and the natural person – if one were specified
– were entitled to authorise a lawyer to represent the European Communities.
[Signatures]
*
Language of the case: French.