ORDER OF THE CIVIL SERVICE TRIBUNAL (Third Chamber)

30 October 2008

Cases F-48/08 and F-48/08 AJ

Antonio Ortega Serrano

v

Commission of the European Communities

(Civil service – Manifest inadmissibility – Impossible for applicant to be represented by a lawyer who is not a third party – Legal aid – Application to intervene)

Application: brought under Articles 236 EC and 152 EA, and application brought under Article 95 of the Rules of Procedure, in which Mr Ortega Serrano seeks, primarily, annulment of the selection board’s decision of 10 May 2007 in competition EPSO/AD/26/05, refusing to enter him in the reserve list at the outcome of that competition, and, additionally, the award of legal aid.

Held: The action is dismissed as manifestly inadmissible. The applicant’s alternative claim, that he should be allowed to put his application in order, is dismissed. The applicant is ordered to pay the costs. It is not necessary to rule on the application to intervene submitted by the European Data Protection Supervisor in support of the applicant’s claims in the main proceedings. The European Data Protection Supervisor is to bear the costs relating to his application to intervene. The application for legal aid in Case F‑48/08 AJ Ortega Serrano v Commission is dismissed.

Summary

1. Procedure – Admissibility of actions – Lodging of a plea of inadmissibility – Tribunal’s freedom to adopt an order on the basis of Article 76 of the Rules of Procedure of the Civil Service Tribunal

(Rules of Procedure of the Civil Service Tribunal, Arts 76 and 78)

2. Procedure – Application initiating proceedings – Formal requirements – Application submitted without the service of a lawyer

(Statute of the Court of Justice, Art. 19, third para.; Rules of Procedure of the Civil Service Tribunal, Art. 34(1))

1. Even where a plea of inadmissibility has been raised by the defendant in a separate document on the basis of Article 78 of the Rules of Procedure of the Civil Service Tribunal, and where observations on that plea have been submitted by the applicant, the Tribunal remains at liberty, if the inadmissibility of the action appears manifest, to adopt an order on the basis of Article 76 of those Rules.

(see para. 23)

See:

F-105/07 R bis v Commission [2008] ECR-SC I-A-0000

2. It is apparent from the third paragraph of Article 19 of the Statute of the Court of Justice and, in particular, the term ‘represented’ that, in order to bring an action before the Civil Service Tribunal, a party within the meaning of that article 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.

Since no derogation from or exception to that obligation is provided for by the Statute of the Court of Justice or the Rules of Procedure of the Civil Service Tribunal, the submission of an application signed by the applicant himself, even if he is a lawyer authorised to plead before a national court, cannot be sufficient for the purpose of bringing an action. 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 Community legal order as is demonstrated by, precisely, Article 19 of the Statute of the Court of Justice. A lawyer who is, at the same time, the party he represents would be in danger, because of his personal connection with the case in question, of not being able to fulfil that vital role of representative of the law in the most appropriate manner.

The obligation to have recourse to a third party for the purposes of representation before the Community courts does not in any way restrict the means at the disposal of the party in question for pursuing his case and does not therefore adversely affect his rights in that regard. Furthermore, that obligation places the parties on the same footing as regards the presentation of their case, irrespective of their professional standing, and therefore does not infringe the principle of equal treatment.

(see paras 31-36)

See:

C-174/96 P Lopes v Court of Justice [1996] ECR I‑6401, paras 8 and 10 to 12

T-79/99 Euro-Lex v OHIM (EU‑LEX) [1999] ECR II‑3555, para. 28; T-184/04 Sulvida v Commission [2005] ECR II‑85, paras 8 and 9