ORDER OF THE COURT (Sixth Chamber)

5 September 2013 ( )

(Appeals – Article 19 of the Statute of the Court of Justice of the European Union – Representation by a lawyer who is not a third party – Action for annulment manifestly inadmissible – Grounds of the appeal manifestly unfounded)

In Case C‑573/11 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 November 2011,

ClientEarth, established in London (United Kingdom), represented by P. Kirch, avocat,

applicant,

the other parties to the proceedings being:

Council of the European Union, represented by C. Fekete and B. Driessen, acting as Agents,

defendant at first instance,

Kingdom of Denmark,

Republic of Finland,

Kingdom of Sweden,

interveners at first instance,

THE COURT (Sixth Chamber),

composed of M. Berger, President of the Chamber, A. Borg Barthet and E. Levits (Rapporteur), Judges,

Advocate General: N. Jääskinen,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1 By its appeal, ClientEarth seeks the setting aside of the order of the General Court of the European Union of 6 September 2011 in Case T‑452/10 ClientEarth v Council (‘the order under appeal’), by which that court dismissed as manifestly inadmissible its action seeking the annulment of the decision of the Council of 26 July 2010 refusing to grant it full access to an opinion of the Council’s Legal Service (Document No 6865/09) on the draft amendments by the European Parliament to the Commission’s proposal for a regulation amending Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

The proceedings before the General Court and the order under appeal

2 By application lodged at the Registry of the General Court on 24 September 2010, Mr Hockman, QC lodged, on behalf of the applicant, a charitable association registered with the Charity Commission for England and Wales, an action seeking the annulment of the decision referred to in the preceding paragraph and an order that the Council of the European Union grant access to the document requested.

3 In paragraphs 1 and 2 of the order under appeal, the General Court found that it was evident from the extract from the register of the Charity Commission for England and Wales that Mr Hockman is one of ClientEarth’s seven trustees. The General Court also noted that, by fax of 3 February 2011, sent to the Registry of the General Court and signed by Mr Hockman, the latter stated that the name of Mr Kirch, avocat, was to be added as the applicant’s representative.

4 In paragraphs 21 and 24 of the order under appeal, the General Court took the view that it is clear from the facts of the present case that Mr Hockman 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 Article 19 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of Article 53 of that Statute, entitled to represent or assist a party before the Court of Justice.

5 Thus, on the basis of the first subparagraph of Article 43(1) of the Rules of Procedure of the General Court, requiring that ‘the original of every pleading must be signed by the party’s agent or lawyer’, the General Court dismissed the action as manifestly inadmissible, without further examining the matter.

Forms of order sought by the parties

6 ClientEarth requests the Court of Justice to set aside the order under appeal and to order the Council to pay the costs.

7 The Council asks the Court to dismiss the appeal as unfounded and order the appellant to pay the costs.

The appeal

8 Under Article 181 of the Rules of Procedure of the Court of Justice, where an appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, 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 Article 19 of the Statute of the Court of Justice.

10 By the two parts of the single ground of appeal, the appellant submits that the General Court 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 General Court rightly noted in paragraph 14 of the order under appeal, it follows from the settled case-law of the Court of Justice that the conception of the lawyer’s role in the European Union legal order, which stems from the legal traditions common to the Member States and on which Article 19 of the Statute of the Court 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, Case 155/79 AM & S v Commission [1982] ECR 1575, paragraph 24; Case C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others [2010] ECR I‑8301, paragraph 42; and order of 6 June 2013 in Case C‑535/12 P Faet Oltra v Ombudsman, paragraph 19 and the case-law cited).

12 In that regard, the General Court correctly noted, in paragraph 15 of the order under appeal, that a legal person cannot be properly represented before the Courts of the European Union 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 Joined Cases C‑74/10 P and C‑75/10 P EREF v Commission, paragraphs 50 and 51).

13 Next, the General Court was correct to find, in paragraph 18 of the order under appeal, that the requirement imposed by European Union law that a party be represented before the General Court 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 General Court in the light of Article 19 of the Statute of the Court is a matter for the latter (see EREF v Commission, paragraph 45 and the case-law cited).

16 In that regard, the General Court 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 Charity Commission for England and Wales, annexed to the application in accordance with Article 44(5)(a) of the Rules of Procedure of the General Court, the nature of the office held by Mr Hockman within ClientEarth is not compatible with his position as representative of that body before the General Court.

17 None of the considerations or arguments raised by the appellant before the Court of Justice is capable of establishing that the assessment made by the General Court in paragraphs 21 to 23 of the order under appeal, relating to Mr Hockman’s functions as a charity trustee within ClientEarth, can be regarded as constituting an error of law in the light of Article 19 of the Statute of the Court of Justice.

18 It follows that the General Court was correct to hold that Mr Hockman cannot give the guarantee of independence of a lawyer representing a party which is required under Article 19 of the Statute of the Court of Justice.

19 In those circumstances, the ground of appeal relied on by ClientEarth in support of its appeal, alleging that the General Court erred in law in respect of the interpretation of Article 19 of the Statute of the Court, must be rejected as being manifestly unfounded.

20 It must, however, be pointed out that, in accordance with the established case-law of the Court of Justice, any fact which relates to the admissibility of the action for annulment brought before the General Court is likely to constitute a question of public policy which the Court of Justice, hearing an appeal, is required to raise of its own motion (see, to that effect, the judgment of 29 November 2007 in Case C‑176/06 P Stadtwerke Schwäbisch Hall and Others v Commission, paragraph 18, and Case C‑362/06 P Sahlstedt and Others v Commission [2009] ECR I‑2903, paragraphs 21 to 23).

21 Thus, it must be stated that the General Court omitted, when examining the admissibility of the action for annulment brought by Mr Hockman 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, Mr Hockman informed the Registry of the General Court of a change in the representation of ClientEarth before the General Court by appointing Mr Kirch as the lawyer responsible for the duties previously undertaken by Mr Hockman, 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 Case T‑120/10 ClientEarth and Others v Commission and Case T‑449/10 ClientEarth and Others v Commission, as curing a defect within the meaning of Article 44 of the Rules of Procedure of the General Court, the fact that the General Court 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 Article 44(3) to (5) of the Rules of Procedure of the General Court, which may be put in order under Article 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 General Court 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 Case C‑208/11 P Internationaler Hilfsfonds v Commission, 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 Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 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 Council 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 Court (Sixth Chamber) hereby orders:

1. The appeal is dismissed.

2. ClientEarth shall pay the costs.

[Signatures]