ORDER OF THE GENERAL COURT (Fourth Chamber)
17 August 2022 (*)
Action for annulment – Representation by a lawyer who is not a third party independent of the applicant – Inadmissibility
In Case T‑85/18,
Edward William Batchelor, resident in Brussels (Belgium), represented by B. Hoorelbeke, lawyer and M. Healy, Solicitor,
applicant,
v
European Commission, represented by M. Konstantinidis and C. Ehrbar, acting as Agents,
defendant,
THE GENERAL COURT (Fourth Chamber),
composed of S. Gervasoni, President, L. Madise and R. Frendo (Rapporteur), judges,
Registrar: E. Coulon,
having regard to the written part of the procedure, in particular:
–        the application lodged at the Court Registry on 15 February 2018,
–        the measure of organisation of procedure sent by the Fifth Chamber of the Court to the applicant on 25 January 2019 and the applicant’s reply lodged at the Court Registry on 18 February 2019,
–        the decision of the President of the Fifth Chamber of the Court of 4 April 2019 to stay the proceedings pending the final decision of the Court of Justice in the proceedings in PJ v EUIPO, C‑529/18 P,
–        the measure of organisation of procedure of 1 April 2022 and the replies of the Commission and the applicant on the possible impact of the judgment of 24 March 2022, PJ and PC v EUIPO (C‑529/18 P and C‑531/18 P EU:C:2022:218) on the admissibility of the action, lodged at the Registry of the Court respectively on 13 and 19 April 2022,
makes the following
Order
1        By his action under Article 263 TFEU, the applicant, Mr Edward William Batchelor, seeks the annulment of European Commission Decision C(2017) 8430 final of 5 December 2017 in so far as it refused him access to the ethics declaration of a director of the institution and indicated that it did not hold any other document falling within the scope of his application for access to documents (‘the contested decision’).
Background to the dispute
2        On 2 August 2017 the applicant applied to the Commission for access to documents on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 31 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
3        That application sought access to documents relating to Commission Delegated Regulation (EU) No 665/2013 of 3 May 2013 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of vacuum cleaners (OJ 2013 L 192, p. 1). In particular, the applicant requested access to ‘any documents relating to an alleged conflict of interest of the desk officer for the labelling regulation and/or ecodesign regulation’.
4        By decision of 15 September 2017, the Commission identified 71 documents as falling within the scope of the applicant’s application and granted access to documents Nos 1 to 70. By contrast, on the basis of the exception provided for in Article 4(1)(b) of Regulation No 1049/2001, it refused access to document No 71, consisting of an ethics declaration by one of its officials.
5        On 6 October 2017, the applicant made a confirmatory application to the Commission for access to documents pursuant to Article 7(2) of Regulation No 1049/2001. In his confirmatory application, he asked the Commission to grant him access to the ethics declaration and to examine whether other documents fell within the scope of his initial application.
6        On 5 December 2017, the Commission adopted the contested decision.
Forms of order sought
7        The applicant claims that the Court should:
–        declare the action admissible and annul the contested decision;
–        order the Commission to pay the costs.
8        The Commission contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
Law
9        Without raising a plea of inadmissibility by separate document on the basis of Article 130(1) of the Rules of Procedure of the General Court, the Commission argues that the action is inadmissible and points out, first, that the applicant is represented before the Court by two lawyers practising within the firm Baker & McKenzie CVBA/SCRL and, secondly, that he himself practises the profession of lawyer as a partner in that firm. The fact that the applicant holds that position as the sole shareholder-director of Edward William Batchelor SPRL (‘Batchelor SPRL’) and not in a personal capacity is artificial, inasmuch as the applicant, a natural person, is indissociable from that legal person.
10      The Commission therefore considers that the applicant and his lawyers are in a situation similar to that found by the Court in its judgment of 24 March 2022, PJ and PC v EUIPO (C‑529/18 P and C‑531/18 P, EU:C:2022:218). They all work in the same firm and the applicant, as a partner and director, is the hierarchical superior of his lawyers, since, at the time the action was brought, the latter were only employees.
11      Consequently, the Commission considers that the applicant’s representatives do not meet the condition of independence of lawyers within the meaning of Article 19 of the Statute of the Court of Justice of the European Union and that the action must therefore be dismissed as inadmissible.
12      Under Article 129 of its Rules of Procedure, on a proposal from the Judge-Rapporteur, the Court may, at any time, of its own motion, after hearing the parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case. In the present case, the Court, considering itself sufficiently informed by the documents in the case file, decides to give a decision without taking further steps in the proceedings.
13      It should be noted that the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union, which is applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, provides that parties other than the Member States and institutions of the European Union, the States party to the Agreement on the European Economic Area (EEA) and the EFTA Surveillance Authority referred to in that agreement must be represented by a lawyer.
14      With regard to the concept of lawyer, it should be noted that, in the absence of a reference in the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union to the national law of the Member States, it must be interpreted autonomously and uniformly throughout the Union, taking account not only of the wording of that provision but also of its context and purpose (judgments of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 57; of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 60; and order of 9 March 2022, Kirimova v EUIPO, T‑727/20, under appeal, EU:T:2022:136, paragraph 17).
15      In addition, the purpose of the requirement of legal representation by a third party is above all to protect and defend the principal’s interests to the best of one’s ability, in complete independence, and in compliance with the law and professional and ethical rules (see, to that effect, judgments of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraphs 61 and 62, and of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraphs 64 and 65).
16      In paragraph 74 of its judgment of 24 March 2022, PJ and PC v EUIPO (C‑529/18 P and C‑531/18 P, EU:C:2022:218), the Court went on to emphasise the need to limit the cases in which an action is inadmissible on the ground that the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union has been disregarded to cases in which it is clear that the lawyer is not in a position to carry out his or her task of defending his or her client.
17      Thus, the Court held, in paragraphs 67 and 69 of its judgment of 24 March 2022, PJ and PC v EUIPO (C‑529/18 P and C‑531/18 P, EU:C:2022:218), that the requirement of independence of a lawyer necessarily implied the absence of an employment relationship between the latter and his or her client, but also the absence of other links which manifestly undermined his or her ability to carry out his or her task of defending the client while acting in the client’s interests to the greatest possible extent, in compliance with the law and the rules of professional conduct and ethics.
18      In the present case, it is apparent from the formal documents attached to the application that the applicant, who is a lawyer, instructed the firm of Baker & Mackenzie, of which he is one of the partners via the company Batchelor SPRL, where he is the sole shareholder and director, to represent him in the present court proceedings and that Mr Hoorelbeke and Ms Healy, working in the firm as associates, have been entrusted with that representation.
19      The applicant claims, however, that, at the time the action was brought, Baker & Mackenzie had more than 20 partners, including Batchelor SPRL. In his view, the size of that firm distinguishes the present case from the context which gave rise to the judgment of 24 March 2022, PJ and PC v EUIPO (C‑529/18 P and C‑531/18 P, EU:C:2022:218), where there were only two partners. He adds that, in view of the Articles of Association of that firm, Batchelor SPRL alone had no decision-making powers. Moreover, the applicant maintains that the present action was brought in his personal capacity, which is distinct from that of his SPRL. He concluded that he did not exercise effective control over his legal representatives.
20      However, in the first place, it should be observed that it is apparent from the Articles of Association of Batchelor SPRL that the applicant was its sole shareholder. Thus, as the Commission points out, the distinction which he draws between himself and that company is, in the present case, artificial.
21      In the second place, as regards, more specifically, a lawyer working as an associate in a law firm, the Court held, in paragraphs 79 and 80 of its judgment of 24 March 2022, PJ and PC v EUIPO (C‑529/18 P and C‑531/18 P, EU:C:2022:218), that, in the light of the national professional rules and the rules of professional conduct, that lawyer was presumed, a priori, to satisfy, in principle, the requirements of independence. However, the Court drew a distinction according to the situation of the represented client.
22      In that regard, the Court held that the situation in which the client was a third party to the law firm in which the associate in question worked did not raise any particular problem of independence as far as the latter was concerned, but that the situation was different where the client, a natural person, was himself a co-partner and founding member of the law firm concerned and could therefore exercise effective control over the associate of that firm. In the latter case, the Court held that the links between the associate lawyer and the client partner must be considered to be such that they clearly affect the lawyer’s independence (judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 81).
23      In the present case, it is not established that the applicant one of the founding members of the firm Baker & McKenzie. However, in the judgment of 24 March 2022, PJ and PC v EUIPO (C‑529/18 P and C‑531/18 P, EU:C:2022:218), that status was linked to the circumstances of the case and is therefore not in itself decisive.
24      Therefore, in accordance with the case-law cited in paragraphs 21 and 22 above, it must be held that the links between the applicant and his lawyers are such that they clearly affect the independence of the lawyers.
25      In the third place, and in any event, that conclusion must be drawn in the light of an examination of the circumstances of the case.
26      First, under Article 14(e) and (h) and Article 17(c) of Baker & McKenzie’s Articles of Association, contracts with associate lawyers and, in particular, their appointment and exclusion are submitted to the general meeting of partners, of which the applicant is a member in the light of the finding made in paragraph 20 above.
27      Second, according to Article 10(a) of the Articles of Association of that firm, no one may become a partner unless his or her application is accepted by the general meeting of partners.
28      It follows that the partners, like the applicant, exercise control over the recruitment of associates, their dismissal and the possibility of the latter becoming partners themselves.
29      Third, account should be taken of the traditional influence that partners in large firms are likely to have over associates in practice.
30      Fourth, the applicant argues in vain that he is no longer part of Baker & McKenzie, while still being represented by Mr Hoorelbeke, which would prove that the latter was acting independently. The need to be represented by an independent lawyer when the application is lodged is a condition of admissibility and the admissibility of an action must be judged by reference to the situation prevailing at the time when the application was lodged (see, to that effect, order of 9 March 2022, Kirimova v EUIPO, T‑727/20, under appeal, EU:T:2022:136, paragraph 47).
31      Fifth, the applicant submits that the purpose of the action is not to protect his private interests but to exercise the right of every citizen of the Union to have access to documents, which is a fundamental right and an aspect of the democratic nature of the decision-making process of the institutions of the Union. The applicant concludes therefrom that to declare the action inadmissible would only lead to the bringing of a new action.
32      However, it is sufficient to note that the examination of the admissibility of an action is a necessary precondition for the assessment of the substance by the Court. The conditions of admissibility must be met for the action to be considered on the merits, and there is no provision for exceptions where the dispute is intended to protect a fundamental right or a right related to the democratic nature of the Union.
33      In the light of all the foregoing, it must be concluded that the applicant, as a partner in Baker & McKenzie and a director of that firm, was in a position hierarchically superior to that of his two lawyers, so that he was in a position to exercise effective control over them, and that the latter did not enjoy the same degree of independence in relation to him as they would have had in relation to a third party client of that firm.
34      Therefore, the links between the associate lawyers and the client partner in the present case were such that they manifestly undermined the independence of the lawyers within the meaning of paragraph 81 of the judgment of 24 March 2022, PJ and PC v EUIPO (C‑529/18 P and C‑531/18 P, EU:C:2022:218) (see paragraphs 21 and 22 above).
35      It follows that, in those circumstances, the applicant’s representatives cannot be regarded as lawyers meeting the requirements of the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union.
36      It must therefore be concluded that the action be dismissed as inadmissible.
Costs
37      Under Article 134(1) 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.
38      Since the applicant has been unsuccessful in the present case, he must be ordered to pay the costs, as applied for by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      Mr Edward William Batchelor is ordered to pay the costs.
Done at Luxembourg, 17 August 2022.
E. Coulon
S. Gervasoni
Registrar
President
*      Language of the case: English.