CELEX: 62003TO0253(01)
Language: en
Date: 2004-05-28 00:00:00
Title: Order of the Court of First Instance (Fifth Chamber) of 28 May 2004.#Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission of the European Communities.#Intervention - Dismissal - Entity devoid of legal personality - Non-representative association - Association which does not have as its object the protection of its members' interests - Absence of individual interest of its members.#Case T-253/03.

Case T-253/03
      Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd
      v
      Commission of the European Communities
      (Intervention – Dismissal – Entity devoid of legal personality – Non-representative association – Association which does not have as its object the protection of its members’ interests – Absence of individual interest of its members)
      Order of the Court of First Instance (Fifth Chamber), 28 May 2004. 
      Summary of the Order
      1.     Procedure – Intervention – Interested parties – Application for leave to intervene from an entity devoid of legal personality
            – Conditions
      (Statute of the Court of Justice, Arts 40, second para., and 53, first para.)
      2.     Procedure – Intervention – Interested parties – Representative association the object of which is to protect the interests
            of its members – Admissibility in cases raising questions of principle liable to affect those members
      (Statute of the Court of Justice, Arts 40, second para., and 53, first para.)
      1.     Under the second paragraph of Article 40 of the Statute of the Court of Justice, which is applicable to the Court of First
         Instance pursuant to the first paragraph of Article 53 of that statute, the right to intervene in cases before the Court is
         open not only to the Member States and the institutions of the Community but also to any person establishing an interest in
         the result of the case.
      
      Although bodies which have no legal personality may be granted leave to intervene, they must nevertheless satisfy the basic
         requirements for such personality, in particular the ability, however restricted, to undertake autonomous action and to assume
         liability.
      
      An unincorporated association of in-house lawyers employed by leading companies established in Europe which has no legal personality,
         constituted by a mere informal decision of its founders, without a constitution, and constituting merely a forum for exchanging
         information and practical experiences and for discussing matters of interest to its members, does not satisfy the minimum
         requirements for basic legal personality of legal persons.
      
      (see paras 16-19)
      2.     Under the second paragraph of Article 40 of the Statute of the Court of Justice, which is applicable to the Court of First
         Instance pursuant to the first paragraph of Article 53 of that statute, the right to intervene in cases before the Court is
         open to representative associations the object of which is to protect their members in cases raising questions of principle
         liable to affect those members. More specifically, an association may be granted leave to intervene if it represents an appreciable
         number of undertakings active in the sector concerned; if its objects include that of protecting its members’ interests; if
         the case may raise questions of principle affecting the functioning of the sector concerned; and if the interests of its members
         may therefore be affected to an appreciable extent by the forthcoming judgment.
      
      An association composed of only 25 members cannot be regarded as representing a sufficiently large number of professionals
         active in a sector such as in-house lawyers. Moreover, since the association has no constitution, it is impossible to establish
         whether its object is indeed to ensure that its members’ interests are protected.
      
      The members of an association who are not directly affected by the specific measure whose annulment is sought in the case
         before the Court of First Instance, since that measure does not directly concern the companies that they represent, do not
         have a direct and existing interest in the ruling on the contested measure but rather have a simple interest in the pleas
         raised.
      
      (see paras 21-23)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            ORDER OF THE COURT OF FIRST INSTANCE (Fifth Chamber)28 May 2004(1)
            
            
         
            (Intervention  –  Dismissal  –  Representative association which does not have as its object the protection of its members' interests)
            
          In Case T-253/03,
         
         
         Akzo Nobel Chemicals Ltd, established in Surrey (United Kingdom),Akcros Chemicals Ltd,  established in Surrey,represented by C. Swaak and M. Mollica, lawyers,
         
         
         applicants, supported byCouncil of the Bars and Law Societies of the European Union, established in Brussels (Belgium), represented by J. Flynn QC,Algemene Raad van de Nederlandse Orde van Advocaten, established in The Hague (Netherlands), represented by O. Brouwer, lawyer,andEuropean Company Lawyers Association (ECLA), established in Brussels, represented by M. Dolmans, K. Nordlander, lawyers, and J. Temple-Lang, Solicitor,
         
         interveners,
         
         v
         Commission of the European Communities, represented by R. Wainwright and C. Ingen-Housz, acting as Agents, with an address for service in Luxembourg,
         
         defendant,
         
          APPLICATION lodged by the Section on Business Law of the International Bar Association for leave to intervene in support of the form of order sought by the applicants in the present case, the object of which
         is an application for annulment of Decision C (2003) 1533 final of 8 May 2003 rejecting a claim of legal professional privilege
         for certain documents seized in the context of an investigation pursuant to Article 14(3) of Council Regulation No 17 of 6
         February 1962: First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962,
         p. 87),
         
         
         
         
         
         THE COURT OF FIRST INSTANCEOF THE EUROPEAN COMMUNITIES (Fifth Chamber),
         
         
          composed of: P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges,
         
          Registrar: H. Jung,
         
         makes the following
         
         
         Order
         1
            
          On 30 January 2003, the Commission adopted, on the basis of Article 14(3) of Council Regulation No 17 of 6 February 1962:
         First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87), Decision
         C (2003) 85/4 ordering, among other undertakings, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd (‘the applicants’) and
         their respective subsidiaries to submit to an investigation aimed at seeking evidence of possible anti-competitive practices
         (‘the decision of 30 January 2003’). On 10 February 2003, the Commission adopted, likewise on the basis of Article 14(3) of
         Regulation No 17, Decision C (2003) 559/4 (‘the decision of 10 February 2003’) amending the decision of 30 January 2003.
         
         
         
         2
            
          On the basis of those decisions, on-the-spot investigations were carried out at the premises of the applicants in Eccles,
         Manchester (United Kingdom) on 12 and 13 February 2003. During that investigation, the Commission officials copied a large
         number of documents. In the course of the investigation, the applicant’s representatives informed the Commission officials
         that certain documents might be covered by the professional privilege protecting communications with lawyers. When the documents
         in question were examined, a dispute arose in respect of five documents, which were treated in two different ways. The Commission
         officials did not reach a definitive conclusion on the spot as to whether two of the documents should be privileged. They
         therefore made copies of those documents and placed them in a sealed envelope, which they removed at the close of the investigation.
         As regards the other three documents in question, the Commission official responsible for the investigation took the view
         that they were not protected by legal professional privilege and, therefore, made copies, which were placed with the rest
         of the file without being separated in a sealed envelope.
         
         
         
         3
            
          On 17 February 2003, the applicants addressed a letter to the Commission, in which they stated why, in their view, the five
         documents were protected by legal privilege. By letter of 1 April 2003, the Commission informed the applicants that it was
         not possible to conclude, on the basis of the arguments put forward in their letter of 17 February 2003, that the documents
         were in fact protected by legal privilege. However, in its letter, the Commission pointed out that the applicants could submit
         their observations on those initial conclusions within a period of two weeks, at the end of which the Commission would adopt
         a final decision.
         
         
         
         4
            
          By application lodged at the Registry of the Court of First Instance on 11 April 2003, the applicants brought an action for,
         in essence, annulment of the Commission’s decision of 10 February 2003 and, to the extent necessary, the decision of 30 January
         2003 requiring the applicant companies and their respective subsidiaries to submit to the investigation in question (Case
         T‑125/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission).
         
         
         
         5
            
          On 8 May 2003, the Commission adopted Decision C (2003) 1533 final on the basis of Article 14(3) of Regulation No 17 (‘decision
         of 8 May 2003’). In Article 1 of that decision, the Commission refused the applicants’ request that the documents in question
         be returned to them and that the Commission confirm that all copies of those documents in its possession had been destroyed.
         Moreover, in Article 2 of the decision of 8 May 2003, the Commission stated that it intended to open the sealed envelope containing
         two of those documents.
         
         
         
         6
            
          By application lodged at the Registry of the Court of First Instance on 4 July 2003, the applicants brought an action under
         the fourth paragraph of Article 230 EC for annulment of the decision of 8 May 2003.
         
         
         
         7
            
          By applications lodged on 30 July, 7 August and 18 August 2003 respectively, the Council of Bars and Law Societies of the
         European Union (‘the CCBE’), the Algemene Raad van de Nederlandse Orde van Advocaten (‘the Netherlands Bar’) and the European
         Company Lawyers Association (‘ECLA’) applied for leave to intervene in support of the form of order sought by the applicants.
         The CCBE, the Netherlands Bar and the ECLA were granted leave to intervene by single order of the President of the Fifth Chamber
         of 4 November 2003.
         
         
         
         8
            
          On 25 November 2003, the Section on Business Law of the International Bar Association (‘the SBL’), represented by J. Buhart,
         lawyer, lodged an application for leave to intervene in support of the form of order sought by the applicants.
         
         
         
         9
            
          In its application for leave to intervene, the SBL submits that it has a major interest in the outcome of the present case.
         It argues that the dispute raises issues of principle relating to legal professional privilege and that, therefore, a judgment
         against the applicants would directly affect those of its members who are in-house lawyers. The SBL points out that, on 31
         May 2002, it approved a resolution supporting the principle of legal privilege for in-house lawyers in all jurisdictions.
         The SBL takes the view that it has a direct and specific interest in the outcome of the proceedings and that its application
         for leave to intervene satisfies the requirements laid down in the case-law which allows leave to intervene to be granted
         to representative associations the objects of which include protection of their members’ interests. Finally, the SBL asks
         the Court to order the Commission to pay the costs, including those arising in connection with its application for leave to
         intervene.
         
         
         
         10
            
          The application for leave to intervene was served on the parties in accordance with the first subparagraph of Article 116(1)
         of the Rules of Procedure of the Court of First Instance.
         
         
         
         11
            
          In observations submitted on 18 December 2003, the applicants took the view that the SBL had demonstrated that it had an interest
         in the result of the case and asked the Court to grant its application for leave to intervene. By a separate document submitted
         on the same day, the applicants applied for confidential treatment vis-à-vis the SBL. 
         
         
         
         12
            
          In observations submitted on 9 December 2003, the Commission claimed that the SBL had failed to provide sufficient information
         clearly establishing its legal existence or, at least, its capacity to act before a court of law in its own name, as is required
         under Article 44(5)(a) of the Rules of Procedure. It was not apparent from the SBL’s by-laws, for instance, that it had standing
         to bring an action before the Court. The Commission concluded by asking the Court to order the SBL to pay the costs incurred
         by the Commission in connection with the application for leave to intervene. In a separate document submitted on the same
         day, the Commission stated that it did not request confidential treatment vis-à-vis the SBL.
         
         
         
         13
            
          In its observations, which were lodged on 7 January 2004, the CCBE claimed that the SBL’s application for leave to intervene
         was inadmissible. In particular, the CCBE expressed doubts as to whether the SBL satisfied the basic requirements for legal
         personality (order of 11 December 1973 in Joined Cases 41/73, 43/73 to 48/73, 50/73, 111/73, 113/73 and 114/73 Générale sucrière and Others v Commission [1973] ECR 1465, paragraph 3), particularly since it is unable to represent its members autonomously. The CCBE pointed out
         that the SBL is merely a constituent part of the International Bar Association (‘the IBA’), which the SBL has no power to
         represent. The CCBE also argued that the SBL is not a representative association the object of which is to defend its members’
         interests. 
         
         
         
         14
            
          The other interveners did not raise any objections to the application for leave to intervene.
         
         
         
         15
            
          In accordance with the third subparagraph of Article 116(1) of the Rules of Procedure, the President of the Fifth Chamber
         referred the application for leave to intervene to the Chamber.
         
         
            
               Findings of the Court
            
         
         16
            
          The SBL is one of three sections of the IBA, which is a body representing lawyers worldwide and which comprises bar associations
         and law societies and associations of in-house lawyers, as well as individual lawyers. For its part, the SBL is composed of
         individual lawyers, in particular more than 12 500 practitioners of international commercial law, including both independent
         practitioners and in-house lawyers (more than 3 000) established in 185 countries. 
         
         
         
         17
            
          Under the second paragraph of Article 40 of the Statute of the Court of Justice, which is applicable to the Court of First
         Instance pursuant to the first paragraph of Article 53 of that statute, the right to intervene in cases before the Court is
         open not only to the Member States and the institutions of the Community but also to any person establishing an interest in
         the result of the case.
         
         
         
         18
            
          It is settled case-law that representative associations the object of which is to protect their members in cases raising questions
         of principle liable to affect those members may be granted leave to intervene (orders of the President of the Court of Justice
         of 17 June 1997 in Joined Cases C‑151/97 P(I) and C‑157/97 P(I) National Power and PowerGen [1997] ECR I‑3491, paragraph 66, and of 28 September 1998 in Case C‑151/98 P Pharos v Commission [1998] ECR I‑5441, paragraph 6; orders of the President of the Court of First Instance of 22 March 1999 in Case T‑13/99 R
         Pfizer v Council, not published in the ECR, paragraph 15, and of 28 May 2001 in Case T‑53/01 R Poste Italiane v Commission [2001] ECR II‑1479, paragraph 51). More specifically, an association may be granted leave to intervene if it represents an
         appreciable number of undertakings active in the sector concerned, its objects include that of protecting its members’ interests,
         the case may raise questions of principle affecting the functioning of the sector concerned and the interests of its members
         may therefore be affected to an appreciable extent by the forthcoming judgment (see, to that effect, the order of 8 December
         1993 dismissing the application for leave to intervene submitted by Yves Saint Laurent Parfums SA in Case T‑87/92 Kruidvat v Commission [1993] ECR II‑1375, paragraph 14).
         
         
         
         19
            
          The Court observes that, under Article II of its by-laws, the objectives of the SBL are to promote an interchange between
         its members of information and views on laws, practices and professional responsibilities relating to business and financial
         activities throughout the world, to facilitate communication between its members  and to undertake such related projects as
         may be approved by the ‘Section Council’.
         
         
         
         20
            
          The Court notes that the SBL’s by-laws do not provide, among the objectives, for the protection of its members’ interests
         or the representation of those members. The objective of the SBL is in fact merely to promote exchanges of information and
         contact between its members and to organise conferences intended to facilitate the study of certain areas of law. In its application
         for leave to intervene, the SBL states that its task is to provide the in-house lawyers among its members with a forum for
         discussions and guidance on how to function effectively within undertakings while at the same time meeting business objectives
         in accordance with the highest professional standards.
         
         
         
         21
            
          Moreover, the Court observes that, under Section 1 of Article III of its by-laws, the SBL’s members are formally members of
         the IBA, of which the SBL is one of the sections. Thus, according to Article I of its by-laws, the SBL was created within
         the IBA. It should be noted that Section 6 of Article VII provides that the SBL may not take action in the name of or purporting
         to represent the IBA without the prior authority or specific approval of the IBA ‘Council’. In its application for leave to
         intervene, the SBL stated that the application was not filed on behalf of the IBA or any other section thereof.
         
         
         
         22
            
          Accordingly, the Court finds that the SBL is not a representative association the object of which is to protect the interests
         of in-house lawyers within the meaning of the case-law cited above (see paragraph 18 above).
         
         
         
         23
            
          In the light of the foregoing, it must be concluded that the SBL has failed to establish an interest in the result of the
         case within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice.
         
         
         
         24
            
          The application for leave to intervene is therefore dismissed.
         
         
         Costs
         25
            
          Under Article 87(1) of the Rules of Procedure, the decision as to costs is to be given in the final judgment or in the order
         which closes proceedings. Since the present order closes the proceedings with respect to the SBL, it is appropriate to give
         a decision on the costs relating to its application for leave to intervene.
         
         
         
         26
            
          Under Article 87(2) of the Rules of Procedure, 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 SBL has been unsuccessful, it must be ordered to bear its own costs
         and, in accordance with the form of order sought by the Commission, to pay those incurred by the Commission in connection
         with the present intervention proceedings. Since neither the applicants nor the interveners applied for costs, they must bear
         their own costs.
         
         
         On those grounds,
         
         
         
            
            THE COURT OF FIRST INSTANCE (Fifth Chamber)
         
         
          hereby orders:
         
            
            
             
               1.
                  The application for leave to intervene lodged by the Section on Business Law of the International Bar Association is dismissed.
               
            
            
            
             
               2.
                  There is no need to rule on the application lodged by the applicants for confidential treatment vis-à-vis the Section on Business
                     Law of the International Bar Association. 
                  
               
            
            
            
             
               3.
                  The Section on Business Law of the International Bar Association shall pay the costs incurred by the Commission in connection
                     with the intervention proceedings and bear its own costs.
                  
               
            
            
            
             
               4.
                  The applicants and the interveners shall bear their own costs relating to the intervention proceedings.
               
            
             Luxembourg, 28 May 2004.
         
         
         
                  H. Jung
               
               
                  P. Lindh
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
            Language of the case: English.