ORDER OF THE COURT (Seventh Chamber)

29 September 2010 ( )

(Appeal – Article 19 of the Statute of the Court of Justice – Representation of a party by a lawyer who is not a third party – Manifest inadmissibility)

In Joined Cases C‑74/10 P and C‑75/10 P,

APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, lodged on 8 and 5 February 2010 respectively,

European Renewable Energies Federation ASBL, established in Brussels (Belgium), represented by J. Kuhbier, Rechtsanwalt,

appellant,

the other party to the proceedings being:

European Commission, represented by B. Martenczuk and N. Khan, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Seventh Chamber),

composed of R. Silva de Lapuerta (Rapporteur), President of the Chamber, T. von Danwitz and D. Šváby, Judges,

Advocate General: Y. Bot,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1 By its appeals, European Renewable Energies Federation ASBL (‘EREF’) seeks to have set aside the orders of the Court of First Instance of the European Communities (now the General Court) of 19 November 2009 in Cases T‑94/07 and T-40/08 EREF v Commission (‘the orders under appeal’), by which it dismissed as manifestly inadmissible the actions for annulment brought by EREF, first, against Commission Decision C(2006) 4963 final of 24 October 2006 relating to a syndicated credit facility and loan granted in the context of the construction by Framatome ANP of a nuclear power plant for Teollisuuden Voima Oy and, second, against Commission Decision C(2007) 4323 final of 25 September 2007 concerning the measure C 45/2006 implemented by France in the context of the construction by Areva NP of a nuclear power plant for Teollisuuden Voima Oy.

2 By letter of 25 June 2010 the Court invited the parties to express their views on the possible joinder of Cases C-74/10 P and C-75/10 P for the purposes of the oral procedure and the judgment.

3 By letters received at the Court Registry on 8 July 2010, the European Commission informed the Court that it did not oppose the joinder of those cases.

4 EREF did not lodge any submissions within the period given to it for doing so.

5 As the cases are connected by reason of their subject-matter, it is appropriate to join them in accordance with Article 43 of the Court’s Rules of Procedure for the purposes of the present order.

The facts in the main proceedings and the orders under appeal

6 By applications lodged at the Registry of the General Court on 26 March 2007 (T‑94/07) and 26 January 2008 (T-40/08), EREF brought actions seeking the annulment of the two decisions mentioned in paragraph 1 of the present order. According to those decisions, the measures which gave rise to them did not constitute State aid.

7 The two applications were brought before the General Court by Ms Fouquet, a lawyer. Ms Fouquet is also director of EREF.

8 In the context of a measure of organisation of procedure, the General Court requested EREF to produce an official copy of the act appointing Ms Fouquet, the lawyer representing EREF and the person who signed those applications, as director of EREF.

9 EREF therefore lodged with the General Court a copy of the minutes of the EREF board meeting of 29 June 2004. However, EREF pointed out that that copy had not been officially registered in accordance with the applicable national law. Furthermore, the copy produced was, in part, crossed out.

10 In those circumstances, the General Court requested EREF to produce a clean copy of those minutes and to confirm that the act appointing Ms Fouquet as director of EREF had not been officially registered.

11 In response to that request, EREF lodged a clean copy of those minutes with the General Court and confirmed that that document had not been officially registered.

12 The General Court then examined the admissibility of the two applications in the light of the provisions of the Statute of the Court of Justice relating to the requirements for representation of the parties before the General Court.

13 In the grounds of the orders under appeal, the General Court observed that the term ‘represented’, in the third paragraph of Article 19 of the Statute of the Court, means that, in order to bring an action before the General Court, a party within the meaning of that provision is not authorised to act itself but must use the services of a third person authorised to practise before a court of a Member State or of a State which is a party to the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3).

14 The General Court held, in paragraphs 15 and 26 respectively of the orders under appeal, that that requirement is based on a conception of the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of justice, such legal assistance as his client needs. Such a conception reflects legal traditions common to the Member States and is also to be found in the legal order of the European Union, as is demonstrated by Article 19 of the Statute of the Court.

15 The General Court also found that, according to the minutes produced by EREF, Ms Fouquet was appointed director of EREF, a title which she held on the date on which the applications were lodged.

16 The General Court therefore held, in paragraphs 19 and 30 respectively of the orders under appeal, that Ms Fouquet could not be considered to be a third party independent of EREF. The applications were lodged on behalf of EREF by Ms Fouquet in her capacity as a lawyer. According to the General Court, however, ‘in her role as director, Ms Fouquet is responsible for the daily management of EREF’.

17 The General Court stated, in paragraphs 20 and 31 respectively of the orders under appeal, that it was clear from the minutes of 29 June 2004 that Ms Fouquet has individual authority to sign for all withdrawals of money from EREF accounts not exceeding a specific amount. Furthermore, her signature is also required, together with that of EREF’s president and another member of the board, to make withdrawals exceeding that amount.

18 Taking account of those circumstances, the General Court dismissed EREF’s two actions as inadmissible.

Forms of order sought

19 EREF claims that the Court of Justice should:

– declare the orders under appeal null and void;

– refer the cases back to the Sixth Chamber of the General Court;

– order the Commission to pay the costs.

20 The Commission contends that the Court should:

– dismiss the appeals as inadmissible;

– alternatively, dismiss the appeals as unfounded; and

– order EREF to pay the costs.

The appeals

Arguments of the parties

21 EREF challenges the General Court’s finding that Ms Fouquet could not validly represent EREF before it. The General Court, it submits, erred in its assessment of the facts surrounding the appointment of Ms Fouquet as director of EREF as that function is ‘purely nominal’.

22 EREF takes the view that, even if the function of director held by Ms Fouquet were to be regarded as making her a body of EREF, the General Court incorrectly applied the criteria for assessing a lawyer as a third party, that is to say, the requirement of independence vis-à-vis clients.

23 EREF claims that the director status of Ms Fouquet was ‘legally’ not relevant. The fact that her appointment was not registered or published affects her power of representation as regards the daily management of the association. Furthermore, EREF never intended to treat Ms Fouquet ‘formally’ as a director.

24 EREF states that Ms Fouquet was expected to carry out certain supervisory duties within the association as a director ‘without legal power of representation’. Ms Fouquet was supposed to represent EREF in Brussels (Belgium) vis-à-vis the European institutions and other organisations.

25 EREF claims that, because of Ms Fouquet’s ‘independent position’ within the organisational structure of the association, it did not have the power to give her any instructions regarding her managerial tasks. Consequently, her status as ‘an active part of the administration of justice’, on one hand, and her ‘nominal position’ as director of EREF for supervisory and other duties, on the other, could be distinguished one from the other.

26 EREF states that the provision of legal advice for the actions before the General Court was another of Ms Fouquet’s activities, for which she received a different mandate. In those circumstances, it contends, her ‘purely nominal’ role as director of EREF is compatible with the independence which she enjoys as a lawyer.

27 EREF adds that the conditions to be fulfilled in order for a person to be able to appear as a lawyer before a Court of the European Union are determined by the national laws governing the profession. The role of director of EREF, however, was designed to be a ‘minor side position’, which enabled the association to grant Ms Fouquet the mandate authorising her to bring Cases T-94/07 and T-40/08 before the General Court.

28 The Commission submits that the appeals are inadmissible or, in the alternative, unfounded.

29 It takes the view that EREF’s appeals raise a number of issues which concern the findings of fact by the General Court. In an appeal, however, the Court of Justice does not have jurisdiction to make new findings relating to the facts of the disputes.

30 Alternatively, in the Commission’s view, the General Court did not commit any error of law in the assessment of the material facts by holding that, as a director of EREF, Ms Fouquet was not a lawyer who was an independent third party for the purposes of Article 19 of the Statute of the Court of Justice.

31 According to the Commission, EREF recognises that Ms Fouquet had a significant managerial function within that association and that she had the authority necessary to represent it in carrying out its functions, both internally and towards the outside world.

32 The Commission observes that the issue whether Ms Fouquet was able to engage in other activities beside her role as director is of no relevance to the question whether she was an independent third party as regards EREF.

33 The Commission submits that, in accordance with the applicable Belgian law, the registration of decisions and other acts of associations is a precondition only for reliance on those decisions as against third parties. The appellant, however, is not a third party in relation to the appointment of Ms Fouquet as its director.

34 The Commission also submits that EREF recognises that Ms Fouquet’s role was ‘to represent EREF effectively in Brussels [vis-à-vis European] institutions and [other] associations’. The fact that other organs of EREF may take decisions on a number of issues does not mean that Ms Fouquet does not have powers and responsibilities of her own within that association.

35 The Commission adds that Article 19 of the Statute of the Court of Justice is an autonomous rule of European Union law, the interpretation of which does not depend on the specific rules of national law concerning the powers of the different constituent bodies within an association.

Findings of the Court

36 Under Article 119 of the Rules of Procedure of the Court of Justice, where the 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, dismiss the appeal by reasoned order.

37 It is appropriate to make a ruling under that provision.

38 In its appeals, the appellant relies, first, on a number of factual assertions relating to Ms Fouquet’s duties and responsibilities within EREF and, second, on a plea alleging that the General Court erred in law by reason of an incorrect legal classification of the facts of the case with respect to the interpretation of Article 19 of the Statute of the Court.

39 In the first place, as regards the factual assertions, it must be noted that the appellant’s arguments consist of factual explanations designed to clarify Ms Fouquet’s role within the association and her external duties.

40 In support of those assertions, the appellant set out before the Court a number of factual circumstances, such as the ‘purely nominal’ character of Ms Fouquet’s function as director, the nature of her duties, the management board’s intentions as regards her role, the extent of the duties entrusted to her, EREF’s administrative and financial management procedures, and details of its internal decision-making process.

41 In this regard, it is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. When the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions which it has drawn from them (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 23, and Case C-551/03 P General Motors v Commission [2006] ECR I‑3173, paragraph 51).

42 The Court of Justice has also stated that the appraisal of the facts by the General Court does not, save where the clear sense of the evidence produced before it is distorted, constitute a question of law which is subject, as such, to review by the Court of Justice (Joined Cases C‑280/99 P to C‑282/99 P Moccia Irme and Others v Commission [2001] ECR I‑4717, paragraph 78, and Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2006] ECR I‑4429, paragraph 85).

43 In the light of that case-law, it must be held that the appellant’s claims relating to the director’s role which Ms Fouquet occupied within EREF, which seek to present a different version of the facts concerning her role within that association, must be rejected as inadmissible.

44 Second, with regard to the arguments relating to the error of law supposedly committed by the General Court, the appellant claims essentially that the latter incorrectly interpreted Article 19 of the Statute of the Court of Justice with respect to the facts of the disputes.

45 As is clear from the case-law set out in paragraphs 41 and 42 of this order, 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 Case C‑204/07 P C.A.S. v Commission [2008] ECR I‑6135, paragraph 83).

46 In order to assess the function exercised by Ms Fouquet within EREF, the General Court based its findings on, in addition to the facts provided by the appellant in the proceedings at first instance, among other things, the provisions of the statutes of that association.

47 Taking account of all of those elements, the General Court held that the nature of Ms Fouquet’s specific responsibilities within EREF was not compatible with her representation of EREF before the General Court.

48 None of the considerations and assertions relied on by the appellant before the Court is capable of establishing that the General Court erred in its assessment of those elements with regard to Article 19 of the Statute of the Court of Justice.

49 As regards the provisions of EREF’s statutes relating to the categories of persons who work within the association, it should be pointed out that Article 13 of the statutes provides for the appointment, by its management board, of employees and other members of staff, while Article 14 thereof contains a specific rule under which that management board may delegate to a director the daily management of the organisation and the usage of the signature linked to that management. Furthermore, Article 15 of the statutes provides that either the management board of that association, or its director, that is to say, Ms Fouquet, has authority to act in any legal proceedings, whether as a plaintiff or as a defendant.

50 It follows from all of those provisions that the director of EREF was granted extensive administrative and financial powers which place that function at a high executive level within the association.

51 In those circumstances, having regard to the scope of the powers conferred on her by EREF’s statutes, the director of that association cannot act as its legal representative before the Courts of the European Union as an independent third party.

52 The Court has held that the requirement as to the position and status as an independent lawyer is based on a conception of the lawyer’s role as collaborating in the administration of justice of the European Union, set out in Article 19 of the Statute of the Court of Justice, which derives from the legal traditions common to the Member States (see Case 155/79 AM & S Europe v Commission [1982] ECR 1575, paragraph 24, and Case C-550/07 P Akzo Nobel Chemicals and Ackros Chemicals v Commission [2010] ECR I-0000, paragraph 42).

53 In that connection, the Court has also held, in paragraphs 44 and 45 of the judgment in Akzo Nobel Chemicals and Ackros Chemicals v Commission, that the requirement of independence of a lawyer implies that there must be no employment relationship between the lawyer and his client.

54 Consequently, the expression ‘represented by a lawyer’ in the third paragraph of Article 19 of the Statute of the Court, as interpreted by the latter in paragraph 11 of the order in Case C-174/96 P Lopes v Court of Justice [1996] ECR I-6401, means that a party and its counsel cannot be one and the same person.

55 It must be concluded that the General Court did not make an incorrect assessment of the legal circumstances in the two cases concerned when it held that Ms Fouquet could not validly represent EREF before the General Court.

56 In those circumstances, the plea relied on by EREF in support of its applications and 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.

57 Consequently, in accordance with Article 119 of the Rules of Procedure, the appeals must be dismissed in their entirety.

Costs

58 Under Article 69(2) of the Rules of Procedure, which applies to the procedure on appeal pursuant to Article 118 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 Commission has applied for costs to be awarded against EREF and the latter has failed in its submissions, EREF must be ordered to pay the costs.

On those grounds, the Court (Seventh Chamber) hereby orders:

1. The appeals are dismissed.

2. European Renewable Energies Federation ASBL shall pay the costs.

[Signatures]