CELEX: 62014CO0259
Language: en
Date: 2014-12-04 00:00:00
Title: Order of the Court (Sixth Chamber) of 4 December 2014. # ADR Center Srl v European Commission. # Appeal - Contracts for projects on the mediation procedure - Decision to proceed with partial recovery of an advance payment made to the appellant company following an audit - Inadmissibility of the action - Legal representation - Lawyer who is not a third party in relation to the appellant. # Case C-259/14 P.

ORDER OF THE COURT (Sixth Chamber)
      4 December 2014 (*)
      
      (Appeal — Contracts for projects on the mediation procedure — Decision to proceed with partial recovery of an advance payment made to the appellant company following an audit — Inadmissibility of the action — Legal representation — Lawyer who is not a third party in relation to the appellant)
      In Case C‑259/14 P,
      APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 23 May 2014,
      ADR Center Srl, established in Rome (Italy), represented by L. Tantalo and G. De Palo, avvocati,
      
      appellant,
      the other party to the proceedings being:
      European Commission,
      defendant at first instance,
      THE COURT (Sixth Chamber),
      composed of S. Rodin, President of the Chamber, M. Berger and F. Biltgen (Rapporteur), Judges,
      Advocate General: N. Jääskinen,
      Registrar: A. Calot Escobar,
      having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of
         the Rules of Procedure of the Court of Justice,
      
      makes the following
      Order
      1        By its appeal, ADR Center Srl (‘ADR Center’) seeks to have set aside the order of the General Court of the European Union
         in ADR Center v Commission (T‑110/14, EU:T:2014:170; ‘the order under appeal’), by which the General Court dismissed, as being manifestly inadmissible,
         ADR Center’s action for annulment of the European Commission decision, taken after an audit, to proceed with partial recovery
         of an advance payment made to ADR Center pursuant to contracts No JLS/CJ/2007‑1/18, No JLS/CJ/2007‑1/19 and No JLS/CJ/2007‑1/21
         relating to projects on the mediation procedure.
      
       Procedure before the General Court and the order under appeal
      2        By application lodged at the Registry of the General Court on 13 February 2014, ADR Center brought an action seeking annulment
         of the Commission decision cited in paragraph 1 of the present order.
      
      3        The application stated that ADR Center was represented by Mr De Palo, ‘avvocato’, a shareholder in ADR Center and president
         of its board of administration.
      
      4        The General Court, deeming ADR Center’s action to be manifestly inadmissible, decided to give a decision on the action by
         reasoned order without taking further steps in the proceedings, pursuant to Article 111 of the Rules of Procedure of the General
         Court.
      
      5        In that regard, the General Court pointed out, at paragraph 7 of the order under appeal, that it is settled case-law that —
         in accordance with Articles 19 and 21 of the Statute of the Court of Justice of the European Union, and in particular the
         third paragraph of Article 19, according to which ‘parties must be represented by a lawyer’ — a ‘party’ within the meaning
         of those provisions is not authorised to act in person before the Court but is required to use the services of a third party,
         who must be authorised to practise before a court of a Member State (order in Lopes v Court of Justice, C‑174/96 P, EU:C:1996:473, paragraph 11).
      
      6        The General Court stated, in paragraph 8 of the order under appeal, that it is apparent from paragraph 24 of the judgment
         in AM & S Europe v Commission (155/79, EU:C:1982:157) that that requirement of representation is based on the 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 the client requires. The General Court concluded from this, in paragraph 9 of the order
         under appeal, that, in the light of the Court’s case-law (order in EREF v Commission, C‑74/10 P and C‑75/10 P, EU:C:2010:557, paragraphs 50 and 51), a lawyer who has administrative and financial powers within
         the company which he represents cannot act as that company’s legal representative before the Courts of the European Union
         as an independent third party.
      
      7        The General Court added, in paragraph 10 of the order under appeal, that the provisions concerning the representation of non-privileged
         parties before the Courts of the European Union must be interpreted independently, without reference to the laws of the different
         Member States.
      
      8        Having established that Mr De Palo’s position within ADR Center was therefore not compatible with the requirements of the
         representation of non-privileged parties before the Courts of the European Union, the General Court, in paragraph 12 of the
         order under appeal, dismissed the action as being manifestly inadmissible.
      
       Form of order sought by the parties before the Court of Justice
      9        ADR Center requests the Court of Justice to set aside the order under appeal and to refer the case back to the General Court
         for a decision on the merits.
      
       The appeal
      10      Under Article 181 of the Rules of Procedure of the Court of Justice, where an appeal is, in whole or in part, manifestly inadmissible
         or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate
         General, decide to dismiss that appeal in whole or in part by reasoned order.
      
      11      In the present case, it is appropriate to make a ruling under that provision.
      
      12      ADR Center puts forward three grounds in support of its appeal. The first ground alleges an incorrect interpretation of Article 19
         of the Statute of the Court. By its second ground, ADR Center contends that the General Court infringed Article 67(1) TFEU.
         The third ground alleges an incorrect interpretation of the concept of legal privilege and a failure of the General Court
         to observe the principle of the right to respect for private life, as set out in Article 7 of the Charter of Fundamental Rights
         of the European Union (‘the Charter’) and Article 8 of the European Convention for the Protection of Human Rights and Fundamental
         Freedoms, signed in Rome on 4 November 1950 (‘ECHR’).
      
       The first ground of appeal
       Arguments of the appellant
      13      By its first ground of appeal, ADR Center criticises the General Court on the ground that it misinterpreted Article 19 of
         the Statute of the Court and distorted the facts by finding that there was an employment relationship between Mr De Palo and
         ADR Center such as to prevent Mr De Palo from acting as ADR Center’s legal representative.
      
      14      ADR Center disputes the General Court’s finding that Mr De Palo could not validly represent ADR Center before that Court.
         The General Court, it submits, incorrectly assessed the factual circumstances of the case before it. Furthermore, the case-law
         cited in support of its reasoning is not applicable to the present case.
      
      15      ADR Center claims that Mr De Palo is neither its employee nor bound to it by any employment relationship. He is an external
         consultant and is remunerated in that capacity. Moreover, although Mr De Palo is the president of the board of administration
         of ADR Center, he does not have any administrative or financial powers within the company. Furthermore, as a minority shareholder
         of ADR Center, Mr De Palo cannot influence the company’s decisions or strategy. According to ADR Center, Mr De Palo must therefore
         be regarded as independent of that company.
      
       Findings of the Court
      16      As regards, first, the factual claims raised by ADR Center in this ground relating to the duties and responsibilities of Mr De
         Palo within ADR Center, it should be noted that those claims concern, in essence, the description of the functions performed
         by the president of the board of administration of that company, the detailed rules governing that company’s administrative
         and financial management and also details about the decision-making procedures within that company.
      
      17      In that regard, it must be recalled that, under Article 256 TFEU and the first paragraph of Article 58 of the Statute of the
         Court, an appeal is limited to points of law and must be based on grounds of lack of competence of the General Court, breach
         of procedure before it which adversely affects the interests of the appellant, or infringement of EU law by the General Court
         (judgment in Poland v Commission, C‑335/09 P, EU:C:2012:385, paragraph 23 and the case-law cited).
      
      18      The General Court therefore has exclusive jurisdiction to establish the facts, except where the substantive inaccuracy of
         its findings is apparent from the documents submitted to it, and to assess the evidence relied on. The establishment of those
         facts and the assessment of that evidence do not therefore, save where they are distorted, constitute a point of law which
         is subject as such to review by the Court of Justice (see, to that effect, judgments in EIB v Hautem, C‑449/99 P, EU:C:2001:502, paragraph 44, and in Poland v Commission, EU:C:2012:385, paragraph 24).
      
      19      Furthermore, it should be pointed out that the distortion must be obvious from the documents in the case-file, without there
         being any need to carry out a new assessment of the facts and evidence (see, to that effect, judgments in General Motors v Commission, C‑551/03 P, EU:C:2006:229, paragraph 54, and in Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraph 32).
      
      20      In the present case, since it must be held that ADR Center is seeking, by its claims, to secure a re-examination of the findings
         of fact made by the General Court in the order under appeal as they relate to Mr De Palo’s position in relation to that company,
         those claims must be rejected as being manifestly inadmissible.
      
      21      In so far as ADR Center criticises the General Court on the ground that it distorted the facts by finding that there was an
         employment relationship between ADR Center and Mr De Palo, it is evident that this argument is based on a manifestly erroneous
         reading of the order under appeal. It is clear from paragraph 11 of that order that the General Court relied on the fact that
         Mr De Palo is associated with ADR Center and is, moreover, the president of its board of administration.
      
      22      Second, ADR Center claims that the General Court erred in law in the application of Article 19 of the Statute of the Court.
      
      23      The General Court, however, correctly pointed out, in paragraph 9 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, administrative
         and financial powers (see, to that effect, orders in EREF v Commission, EU:C:2010:557, paragraph 50 and 51, and in ClientEarth v Council, C‑573/11 P, EU:C:2013:564, paragraph 12).
      
      24      The requirement imposed by European Union law that a party be represented in legal proceedings by an independent third party
         cannot be regarded as being a requirement designed solely to exclude the represented party from being represented by its employees
         or by those who are financially dependent on it (order in ClientEarth v Council, EU:C:2013:564, paragraph 13).
      
      25      The essence of that requirement is, first, to prevent private parties from acting on their own behalf before the Courts without
         using an intermediary. Second, the purpose of the requirement for representation by a third party is to ensure that legal
         persons are defended by a representative who is sufficiently distant from the legal person which he represents (order in ClientEarth v Council, EU:C:2013:564, paragraph 14).
      
      26      The conception of the lawyer’s role in the legal order of the European Union, which is derived from the legal traditions common
         to the Member States, and on which Article 19 of the Statute of the Court 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 that cause, such legal
         assistance as the client needs (see, inter alia, judgments in AM & S Europe v Commission, EU:C:1982:157, paragraph 24; in Akzo Nobel Chemicals and Akcros Chemicals v Commission, C‑550/07 P, EU:C:2010:512, paragraph 42; and in Prezes Urzędu Komunikacji Elektronicznej and Poland v Commission, C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraph 23).
      
      27      The requirement that a lawyer should be independent also applies to a situation such as that at issue in the present case,
         in which the lawyer, albeit not employed by the company which he represents and in which he owns shares, is the president
         of its board of administration.
      
      28      Consequently, the General Court did not err in law in relation to Article 19 of the Statute of the Court by holding, in paragraph 11
         of the order under appeal, that, in the light of the documents submitted by ADR Center, the nature of the position held by
         Mr De Palo in ADR Center is not compatible with representation of that company before the Courts of the European Union.
      
      29      ADR Center’s first ground of appeal must, therefore, be rejected as being in part manifestly inadmissible and in part manifestly
         unfounded.
      
       The second ground of appeal
       Arguments of the appellant
      30      By its second ground of appeal, ADR Center claims that, by holding that the provisions of Article 19 of the Statute of the
         Court had to be interpreted without reference to national law, the General Court infringed Article 67(1) TFEU. 
      
      31      ADR Center points out that Article 19 of the Statute of the Court specifically refers to national law. Moreover, there are
         no specific rules of European Union law regulating the legal profession.
      
      32      ADR Center argues that, since Italian law guarantees the independence of the lawyer and allows a lawyer who is associated
         with a company to represent that company before the national courts, Mr De Palo ought to have been allowed to represent ADR
         Center before the Courts of the European Union.
      
      33      ADR Center adds that the Courts of the European Union have, on numerous occasions, denied lawyers authorised to represent
         certain organisations in their own Member State the right to represent those organisations before the Courts of the European
         Union. Consequently, the Court of Justice should reconsider its position on this point in order to take account of changes
         in the different Member States.
      
       Findings of the Court
      34      It should be noted that, with regard to the two cumulative conditions set out in the fourth paragraph of Article 19 of the
         Statute of the Court, namely, that the representative, first, be a qualified lawyer and, secondly, be 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 of 2 May
         1992 (OJ 1994 L 1, p. 3), unlike the authorisation to practise before a court of a Member State or of another State party
         to that agreement, the notion of a lawyer contains no express reference to the law of those States for the purpose of determining
         its meaning and scope. Therefore, according to settled case-law, the need for uniform application of European Union law and
         the principle of equality require that the terms of such a provision of European Union law must normally be given an autonomous
         and uniform interpretation throughout the European Union, having regard to the context of that provision and the purpose of
         the legislation in question (see, inter alia, judgments in Linster, C‑287/98, EU:C:2000:468, paragraph 43, and in Nokia, C‑316/05, EU:C:2006:789, paragraph 21; order in Comunidad Autónoma de Valencia v Commission, C‑363/06 P, EU:C:2008:99, paragraphs 21 and 25).
      
      35      The General Court therefore acted correctly in holding, in paragraph 10 of the order under appeal, that the provisions concerning
         the representation of non-privileged parties before the Courts of the European Union must be interpreted, as far as possible,
         independently, without reference to national law (judgment in Prezes Urzędu Komunikacji Elektronicznej and Poland v Commission, EU:C:2012:553, paragraph 35).
      
      36      It follows that Article 67(1) TFEU, relied on by ADR Center in order to support a claim of infringement of respect for the
         different legal systems and traditions of the Member States, is irrelevant, since Article 19 of the Statute of the Court,
         at issue in the present case, does not govern the representation of parties before national courts but deals with the representation
         of parties before the Courts of the European Union (judgment in Prezes Urzędu Komunikacji Elektronicznej and Poland v Commission, EU:C:2012:553, paragraph 36).
      
      37      Consequently, the second ground of appeal must be rejected as being manifestly unfounded.
      
       The third ground of appeal
       Arguments of the appellant
      38      By its third ground of appeal, ADR Center argues that the General Court incorrectly analysed the relationship between Mr De
         Palo and ADR Center.
      
      39      ADR Center contends that Article 8 of the ECHR must be construed as granting substantial safeguards for individuals, such
         as lawyers, who are tasked with undertakings of general interest. Thus, denying a lawyer associated with a company the protection
         of legal privilege between the lawyer and that company would amount to interference with that company’s right to privacy.
         Such a denial of the protection of legal privilege would also, ADR Center submits, amount to interference with a company’s
         right to privacy under Article 7 of the Charter.
      
       Findings of the Court
      40      First, it must be recalled that, as is clear from the case law cited in paragraph 18 of the present order, the General Court
         has exclusive jurisdiction to establish the facts.
      
      41      ADR Center’s argument that the General Court erred in its assessment of the relationship between Mr De Palo and ADR Center
         therefore does not fall within the jurisdiction of the Court of Justice, save where the facts or evidence are distorted, which,
         however, is not pleaded in the present case, and that argument must therefore be declared to be manifestly inadmissible.
      
      42      Second, it follows from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court and also from Article 112(1)(c)
         of the Rules of Procedure of the Court that an appeal must indicate precisely the contested elements of the judgment or order
         which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see,
         inter alia, judgments in Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 34, and in Poland v Commission, EU:C:2012:385, paragraph 25).
      
      43      A plea by which the appellant confines itself to alleging, by means of a mere abstract statement of legal principles, an error
         of law purportedly made by the General Court does not satisfy those requirements (see, to that effect, order in Autosalone Ispra v Commission, C‑129/06 P, EU:C:2006:775, paragraphs 30 and 31).
      
      44      In the present case, the claim that the General Court disregarded the principle of the right to respect for private life set
         out in Article 7 of the Charter and in Article 8 of the ECHR is too general and imprecise to be amenable to a legal assessment
         by the Court of Justice in the context of the present appeal.
      
      45      The third ground of appeal put forward by ADR Center must therefore also be rejected as being manifestly inadmissible.
      
      46      Since none of the grounds of appeal raised by ADR Center can thus be upheld, the appeal must be dismissed in its entirety.
      
       Costs
      47      Article 137 of the Rules of Procedure of the Court of Justice, which applies to the procedure on appeal by virtue of Article 184(1)
         thereof, provides that a decision as to costs is to be given in the order which closes the proceedings.
      
      48      Since the present order has been adopted before the appeal was notified to the European Commission, and therefore before the
         latter could have incurred costs, it is appropriate to decide that ADR Center is to bear its own costs.
      
      On those grounds, the Court (Sixth Chamber) hereby orders:
      1.      The appeal is dismissed.
      2.      ADR Center Srl shall bear its own costs.
      [Signatures]
      * Language of the case: English.