61998TO0037_EN
Parties
Grounds
Decision on costs
Operative part
Parties
In Case T-37/98,
Foreign Trade Association (FTA), established in Brussels (Belgium),
Hypermarché Auchan S.A., established in Croix (France),
Karstadt Aktiengesellschaft, established in Essen (Germany),
Kaufhof Warenhaus AG, established in Cologne (Germany),
Société Anonyme CIVAD, trading as La Blanche Porte, established in Tourcoing (France),
Otto-Versand GmbH & Co., established in Hamburg (Germany),
Quelle-Schickedanz AG & Co., established in Fürth (Germany),
Textilimportörerna, established in Stockholm (Sweden),
represented by U. Schliessner, Rechtsanwalt, Düsseldorf, with an address for service in Luxembourg at the Chambers of Arendt and Medernach, 8-10 Rue Mathias Hardt,
applicants,
v
Council of the European Union, represented by S. Marquardt, of its Legal Service, acting as Agent, assisted by H.-J. Rabe and G.M. Berrisch, Rechtsanwälte, Hamburg, with an address for service in Luxembourg at the office of A. Morbilli, Director of the Legal Department, at the European Investment Bank, 100 Boulevard Konrad Adenauer,
defendant,
supported by
Commission of the European Communities, represented by V. Kreuschitz, Legal Adviser, and N. Khan, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, also of its Legal Service, Wagner Centre, Kirchberg,
intervener,
APPLICATION for the annulment of Council Regulation (EC) No 2398/97 of 28 November 1997 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan (OJ 1997 L 332, p. 1),
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Second Chamber, Extended Composition),
composed of: J. Pirrung, President, J. Azizi, A. Potocki, M. Jaeger and A.W.H. Meij, Judges,
Registrar: H. Jung,
makes the following
Order
Grounds
Facts and procedure
1 By application lodged at the Registry of the Court of First Instance on 2 March 1998, the applicants, who are importers or associations of importers of bed linen, brought an action for the annulment of Council Regulation (EC) No 2398/97 of 28 November 1997 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan (OJ 1997 L 332, p. 1).
2 The second page of the application states that the applicants are represented by Ursula Schliessner, instructed by James Searles, of Oppenheimer, Wolff & Donnelly LLP, Brussels. The last page of the application bears the typewritten name of Ursula Schliessner, a German Rechtsanwalt authorised to practise before the courts of Düsseldorf (Germany). However, the handwritten signature which appears above that name is that of Mr Searles, a member of the Bar of the State of Ohio (United States), who appears on the List of members of foreign bar associations affiliated with the Brussels Bar and registered with the French Order of that Bar (the "B" list). Mr Searles's signature is accompanied by the abbreviation pp (per procurationem).
3 By a document lodged at the Registry of the Court of First Instance on 23 April 1998, pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance, the Council raised an objection of inadmissibility. The applicants submitted their observations on the objection on 8 June 1998.
4 By a document lodged at the Registry of the Court of First Instance on 8 July 1998, the Commission applied for leave to intervene in support of the form of order sought by the Council. That application was granted by order of the President of the First Chamber, Extended Composition, of 16 November 1998.
5 Requested to express its views solely as to the admissibility of the action, the Commission lodged its statement in intervention on 21 December 1998. The President of the Chamber decided that it was unnecessary to prescribe a period for replying to that statement and the written procedure closed on 15 January 1999.
6 By a decision of the Court of First Instance of 6 July 1999, the Judge-Rapporteur was assigned to the Second Chamber, whereupon the case was assigned to that Chamber.
Forms of order sought
7 The applicants claim that the Court should:
- declare the action admissible;
- annul Regulation No 2398/97;
- adopt such measures as it may consider necessary;
- order the Council to pay the costs.
8 The Council contends that the Court should:
- declare the application inadmissible;
- order the applicants jointly and severally to bear the costs.
9 The Commission contends that the Court should:
- dismiss the action as manifestly inadmissible.
Admissibility
10 In support of its objection of inadmissibility, the Council, supported by the Commission, puts forward three pleas in law. First, it maintains that the application does not comply with the requirements laid down by the relevant provisions of the Rules of Procedure. Secondly, it argues that the action was brought out of time by seven of the eight applicants. Thirdly, it maintains that the applicants are not individually concerned by Regulation No 2398/97. It is appropriate to examine the first plea first.
Arguments of the parties
11 The Council maintains that the application does not comply with the requirements of Article 43(1) of the Rules of Procedure of the Court of First Instance, according to which the original of every pleading must be signed by the party's agent or lawyer, or with the requirements of the third and fourth paragraphs of Article 17 of the EC Statute of the Court of Justice, which govern the procedure before the Court of First Instance pursuant to the first paragraph of Article 46 of the same Statute and which provide:
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..
12 The Council submits that an application which is not properly signed is manifestly inadmissible, save where the applicant has cured the defect before the expiry of the period prescribed for bringing the action. In support of that submission, the Council refers to the order of the Court of Justice in Case 10/81 Farrall v Commission [1981] ECR 717, the judgment of the Court of Justice in Joined Cases 220/78 and 221/78 ALA and ALFER v Commission [1979] ECR 1693, and the Opinion of Advocate General Capotorti in the same case.
13 The applicants state that they are represented by Ursula Schliessner, a Rechtsanwalt authorised to practise before the courts of Düsseldorf, Germany, as is demonstrated by the documents annexed to the application. In those circumstances, the applicants maintain that there can be no doubt either as to the identity of the person representing them in this case or as to the compliance of that person's power of representation with the third and fourth paragraphs of Article 17 of the Statute of the Court of Justice.
14 As regards the question of compliance, in this case, with Article 43(1) of the Rules of Procedure, the applicants claim that the application was validly signed by James Searles on behalf of the legal representative stated in that document, namely Ursula Schliessner. They acknowledge that if Mr Searles, who is registered on the B list of the Brussels Bar, had signed the application in his own name, typed below his signature, the application would be inadmissible. They observe that the Council does not submit that a pp signature as such is invalid.
15 The applicants go on to point out that Mr Searles is a partner in the law firm of Oppenheimer, Wolff & Donnelly LLP and that, in that capacity, he has authority to sign any document on behalf of the firm and hence on behalf of other partners such as Ms Schliessner. According to the powers of attorney signed by the applicants, Mr Searles was entitled to act on their behalf in conjunction with Ms Schliessner. They add that Mr Searles was actively involved in the preparation of the application and was fully conversant with the legal arguments set out in it.
16 Whilst recognising that the registration of Mr Searles on the B list of the Brussels Bar does not entitle him to plead before the Belgian courts, the applicants claim that it does entitle him, provided he acts in conjunction with a lawyer who is authorised to practise before those courts, to advise and represent clients in proceedings governed by Belgian law.
17 The applicants add that, on 2 March 1998, Mr Searles signed the application because Ms Schliessner was absent on a business trip that day. They offer to adduce evidence of the reason for that absence.
18 Finally, the applicants maintain that the cases which gave rise to the two judgments cited by the Council are distinguishable from the present case.
Findings of the Court of First Instance
19 Under Article 114 of the Rules of Procedure, where a party applies to the Court of First Instance for a decision on admissibility without going into the substance of the case, the remainder of the proceedings are to be oral unless the Court decides otherwise. In this case, the Court considers that it has sufficient information from the documents before it to enable it to give judgment without opening the oral procedure.
20 The effect of the third and fourth paragraphs of Article 17 of the Statute of the Court of Justice, which govern the procedure before the Court of First Instance pursuant to the first paragraph of Article 46 of the same Statute, is that 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 validly undertake procedural steps before the Court of First Instance on behalf of parties other than the States and institutions referred to in the first and second paragraphs of Article 17 cited above.
21 With regard to applications initiating proceedings, the first paragraph of Article 19 of the Statute of the Court of Justice, which also governs the procedure before the Court of First Instance pursuant to Article 46 cited above, provides:
[...] The application shall contain the applicant's name and permanent address and the description of the signatory, the name of the party or names of the parties against whom the application is made, the subject-matter of the dispute, the form of order sought and a brief statement of the pleas in law on which the application is based.
22 It follows that the application must be signed by a person entitled to represent the applicant in accordance with Article 17 of the Statute of the Court of Justice.
23 That interpretation is confirmed by the wording of the first subparagraph of Article 43(1) of the Rules of Procedure of the Court of First Instance, which requires the original of every pleading to be signed by the party's agent or lawyer.
24 In order to ensure compliance with the third and fourth paragraphs of Article 17 of the Statute, Article 44(3) of the Rules of Procedure of the Court of First Instance provides that the lawyer acting for a party must lodge at the Registry a certificate that he is authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement.
25 Those provisions are designed to ensure that responsibility for undertaking procedural steps and for determining the content of procedural documents in cases before the Community courts is assumed by a person entitled so to do; that is to say, either, with regard to the representation of institutions, Member States and other States which are parties to the EEA Agreement, by an agent, or, for the representation of other parties, by a lawyer who is authorised to practise before a court of a Member State or another State which is a party to the EEA Agreement and who is bound by the legal and ethical rules to which practice of the profession of lawyer is subject in those States.
26 As the Statute of the Court of Justice and the Rules of Procedure of the Court of First Instance stand at present, the handwritten signature of the lawyer or agent representing a party, on the original of every procedural document, constitutes the sole means of ensuring that responsibility for such a document is assumed by a person entitled to represent the party before the Community courts, in accordance with Article 17 of the Statute of the Court of Justice.
27 It follows that, for the action to be admissible, the original of the application should have borne the handwritten signature of the lawyer instructed by the applicants and entitled to represent them before the Court of First Instance, namely that of Ms Schliessner.
28 It should be added that the absence of signature of the application by a lawyer entitled to undertake procedural steps before the Court of First Instance is not among the procedural irregularities that are capable of being cured after the expiry of the period prescribed for bringing the action, in accordance with the second paragraph of Article 19 of the Statute of the Court of Justice and Article 44(6) of the Rules of Procedure of the Court of First Instance.
29 As regards the signature of Mr Searles, which the applicants say was appended on behalf of Ms Schliessner, it should be pointed out that the signature of a person who is not him- or herself entitled to undertake procedural steps before the Court of First Instance cannot validly replace that of the lawyer who is authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement, and who has been instructed by the party.
30 That being so, the applicants' arguments based on the internal organisation of the law firm to which Ms Schliessner belongs, like those concerning their relations with the various members of that firm, are of no consequence. The same applies to the arguments concerning the registration of Mr Searles on the B list of the Brussels Bar, given that such registration does not confer upon him the right to undertake procedural steps before the Court of First Instance.
31 Finally, it is not necessary to proceed on the applicants' offer to adduce evidence that, on 2 March 1998, the last day of the period prescribed for bringing the action and the date on which the application was signed, their representative was prevented from dealing with the matter. The absence of the lawyer who was instructed, on account of a business trip, cannot be regarded as constituting an unforeseeable circumstance or a case of force majeure which would enable the second paragraph of Article 42 of the Statute of the Court of Justice to be applied in order to prevent the action from being barred through lapse of time.
32 Since the application does not comply with the requirements of the third and fourth paragraphs of Article 17 and the first paragraph of Article 19 of the Statute of the Court of Justice and of Article 43(1) of the Rules of Procedure of the Court of First Instance, it must be dismissed as inadmissible, without there being any need to adjudicate on the other pleas going to admissibility raised by the Council.
Decision on costs
Costs
33 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, 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 applicants have been unsuccessful, they must be ordered to bear their own costs and, jointly and severally, to pay those incurred by the Council, in accordance with the form of order sought by the latter. Since the Commission has not applied for costs, it must be ordered to bear its own costs.
Operative part
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)
hereby orders:
1. The application is dismissed as inadmissible.
2. The applicants shall bear their own costs and, jointly and severally, pay the costs incurred by the Council.
3. The Commission shall bear its own costs.