ORDER OF THE COURT (Sixth Chamber)
31 March 2023 (*)
(Appeal – Application for legal aid – Article 53(2) of the Rules of Procedure of the Court of Justice – Decision of the General Court of the European Union from which no appeal lies – Manifest lack of jurisdiction)
In Case C‑485/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 July 2022,
KO, represented by P. Koutrakos, dikigoros, F. Randolph, advocaat, and J. Stojsavljevic-Savic, Solicitor,
appellant,
the other parties to the proceedings being:
Council of the European Union,
European Commission,
European External Action Service (EEAS),
Eulex Kosovo,
defendants at first instance,
THE COURT (Sixth Chamber),
composed of P.G. Xuereb, President of the Chamber, T. von Danwitz and A. Kumin (Rapporteur), Judges,
Advocate General: J. Richard de la Tour,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 53(2) of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        By her appeal, KO seeks to have set aside the order of the President of the General Court of the European Union of 19 May 2022, KO v Council and Others (T‑119/22 AJ, not published, ‘the order under appeal’), by which the President of the General Court dismissed her application for legal aid.
2        By that order, the President of the General Court held, pursuant to Article 146(2) of the Rules of Procedure of the General Court, that the General Court manifestly lacked jurisdiction to hear and determine the action for damages which KO intended to bring in order to obtain compensation for the damage which she allegedly suffered as a result of various acts and omissions of the Council of the European Union, the European Commission, the European External Action Service (EEAS) and Eulex Kosovo in the implementation of Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO (OJ 2008 L 42, p. 92), and, in particular, during the investigations carried out during that mission concerning the murder of her son in Kosovo in 1999.
The appeal
3        Under Article 53(2) of the Rules of Procedure of the Court of Justice, where it is clear that the Court has no jurisdiction to hear and determine a case, it may at any time, after hearing the Advocate General, decide to give a decision by reasoned order without taking further steps in the proceedings.
4        It is appropriate to apply that provision in this case.
5        KO claims that the Court should set aside the order under appeal. She relies, in essence, on four grounds in support of her appeal.
6        By her first ground of appeal, she claims that Article 148(8) of the Rules of Procedure of the General Court, relating to decisions on applications for legal aid and according to which ‘no appeal shall lie from orders made under this Article’, is not applicable in the present case.
7        She submits that the order under appeal was adopted on the basis of Article 146(2) of the Rules of Procedure of the General Court and that that provision contains no restriction on the exercise of the right to appeal.
8        However, it is apparent from the Rules of Procedure of the General Court that Chapter 15 of those rules of procedure, entitled ‘Legal aid’, consists of Articles 146 to 150 thereof, and that Article 146 of the Rules of Procedure, entitled ‘General’, provides, in paragraph 2, for cases in which ‘legal aid shall be refused’, while Article 148 thereof, entitled ‘Decision on the application for legal aid’, specifies, inter alia, the detailed rules for the adoption of decisions on applications for legal aid and, where such an application is accepted, the content of those decisions.
9        It follows from this that Article 148(8) of those rules of procedure is applicable to a situation in which the President of the General Court decides to refuse to grant legal aid and that, consequently, the Court of Justice manifestly lacks jurisdiction to hear and determine an appeal against such a decision (see, to that effect, orders of 21 May 2019, BI v Commission, C‑99/19 P, not published, EU:C:2019:434, and of 17 May 2022, OH v European Court of Human Rights, C‑692/21 P, not published, EU:C:2022:398). Accordingly, the first ground of appeal must be rejected.
10      It therefore does not avail KO to submit, by her second ground of appeal, in essence, that Article 148(8) of the Rules of Procedure of the General Court must be read in the light of Article 58 of the Statute of the Court of Justice of the European Union and be interpreted as meaning that, although an order relating to legal aid cannot, in accordance with Article 148(8), be the subject of an appeal relating only to the amount of legal aid which has been granted, the position is different in relation to an order rejecting an application for legal aid on the ground that the General Court manifestly lacks jurisdiction to hear the action in respect of which the aid was sought. In fact, Article 58 of the Statute of the Court of Justice of the European Union must be read in the light of the first paragraph of Article 56
of that statute, which provides that an appeal may be brought against decisions of the General Court that are final, that dispose of the substantive issues in part only or
that dispose of a procedural issue concerning a plea of lack of competence or inadmissibility. A decision of the General Court refusing to grant legal aid does not come within the decisions listed in the first paragraph of Article 56 and cannot, therefore, be the subject of an appeal, as is also provided for in Article 148(8) of the Rules of Procedure of the General Court. Accordingly, the second ground of appeal must be rejected.
11      The same is true of the third ground of appeal, by which KO submits that the refusal to examine the present appeal is inconsistent and incompatible with her fundamental rights, given that the applicants for legal aid in the cases which gave rise to the orders of the Court of Justice of 24 June 2022, KS and KD (C‑29/22 P-AJ, not published), and of 24 June 2022, KS and KD (C‑44/22 P-AJ, not published), were granted legal aid in order to be able to meet the costs relating to the appeals in Joined Cases C‑29/22 P and C‑44/22 P, KS and Others v Council and Others, which, she claims, concern the same substantive issues as the appeal which she intends to bring. In fact, the appeals in those joined cases are directed against the order of the General Court of 10 November 2021, KS and KD v Council and Others (T‑771/20, not published, EU:T:2021:798), by which the General Court declared that it manifestly lacked jurisdiction to hear and determine an action brought on the basis of Article 268 TFEU. Such an order may be the subject of an appeal within the meaning of Article 56 of the Statute of the Court of Justice of the European Union. By contrast, by the present appeal, KO seeks to have set aside the order under appeal by which the President of the General Court dismissed her application for legal aid. Accordingly, the present appeal is not directed against a decision of the General Court against which an appeal may be brought under Article 56 of the Statute of the Court of Justice of the European Union.
12      Lastly, the same applies to the fourth ground of appeal, by which KO claims that depriving her of the right to bring an appeal against the order under appeal would constitute an infringement of the third paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, since it is a disproportionate limitation of her right to be granted legal aid, as is apparent from the case-law of the Court of Justice resulting from the judgment of 22 December 2010, DEB (C‑279/09, EU:C:2010:811, paragraph 47). Such a conclusion does not follow in any way from that case-law. In any event, it should be noted that KO has not sufficiently substantiated her argument that the dismissal of the present appeal would be such as to entail an infringement of that provision.
13      In the light of the foregoing, the appeal must be dismissed due to a manifest lack of jurisdiction of the Court.
Costs
14      Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to proceedings on appeal pursuant to Article 184(1) of those rules of procedure, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order has been adopted before the appeal was served on the other parties to the proceedings and, therefore, before they could have incurred costs, KO must be ordered to bear her own costs.
On those grounds, the Court (Sixth Chamber) hereby orders:
1.      The appeal is dismissed due to a manifest lack of jurisdiction of the Court.
2.      KO shall bear her own costs.
Luxembourg, 31 March 2023.
A. Calot Escobar
P. G. Xuereb
Registrar
President of the Chamber
*      Language of the case: English.