CELEX: 62012TO0228
Language: en
Date: 2014-11-10 00:00:00
Title: Order of the General Court (First Chamber, Extended Composition), 10 November 2014.#DD v Council of the European Union.#Legal aid — Application lodged before an action for annulment had been brought — Restrictive measures taken in respect of certain officials of Belarus.#Case T‑228/12 AJ.

Parties
               Grounds
               Operative part
               
            
            Parties
            In Case T‑228/12 AJ,
            DD,  residing in Vitebsk (Belarus),
            applicant,
            v
            Council of the European Union,  represented by F. Naert and E. Finnegan, acting as Agents,
            defendant,
            APPLICATION for legal aid under Articles 94 and 95 of the Rules of Procedure of the General Court, lodged before an action had been brought,
            THE GENERAL COURT (First Chamber, Extended Composition),
            composed of H. Kanninen (Rapporteur), President, I. Pelikánová, E. Buttigieg, S. Gervasoni and L. Madise, Judges,
            Registrar: E. Coulon,
            makes the following
            
            Grounds
            Order 
            1. By document lodged at the Court Registry on 31 May 2012, the applicant — Mr DD — applied for legal aid under Articles 94 and 95 of the Rules of Procedure of the General Court with a view to bringing an action against the Council of the European Union for the annulment of Council Implementing Decision 2012/171/CFSP of 23 March 2012 implementing Decision 2010/639/CFSP concerning restrictive measures against Belarus (OJ 2012 L 87, p. 95) and of Council Implementing Regulation (EU) No 265/2012 of 23 March 2012 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2012 L 87, p. 37), in so far as that decision and that regulation concerned him.
            2. Specifically, Mr DD submits in support of that application — producing certain documentary evidence of his claims — that he is in receipt of an average monthly income of EUR 264 and has neither capital nor immovable property.
            3. As regards the condition set out in Article 94(3) of the Rules of Procedure, relating to the proposed action, Mr DD claims that Implementing Decision 2012/171 and Implementing Regulation No 265/2012, both of which he intends to ask the Court to annul, were adopted — in so far as they concern him — in breach of his right to a fair trial, his right to an effective remedy and the principle of judicial independence.
            4. By letter of 16 July 2012, the President of the Sixth Chamber of the General Court invited the Council to submit its observations regarding Mr DD’s application for legal aid.
            5. In its observations, lodged at the Court Registry on 30 July 2012, the Council states that it defers to the Court in the matter of whether the information and supporting documents provided by Mr DD establish that he is in need of legal aid. The Council notes that Mr DD has not provided an estimate of the likely costs and that the proposed action does not raise significant new issues. It contends that the amount of legal aid granted in the present case should not exceed EUR 7 000.
            6. By letter dated 25 April 2013, Maître A. Kolosovski informed the Court that he had been authorised to represent Mr DD.
            7. On 18 July 2013, the President of the Sixth Chamber of the General Court asked Mr DD, by way of a measure of organisation of procedure as provided for in Article 64 of the Rules of Procedure, to produce before 2 September 2013 proof that he had obtained from a competent authority authorisation for a derogation as referred to in Article 3(1) of Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures in respect of Belarus (OJ 2006 L 134, p. 1), as amended, failing which no sum could, in principle, be paid to his lawyer.
            8. Following a change in the composition of the Chambers of the General Court, the President of the Sixth Chamber of the General Court became the President of the First Chamber of the General Court.
            9. On 7 October 2013, as Mr DD had not complied with the request of 18 July 2013 within the time allowed, the President of the First Chamber of the General Court decided to allow more time for that purpose, setting a new deadline of 21 October 2013.
            10. By letter of 20 October 2013, Mr DD asked the Court to defer that deadline by two months. The President of the First Chamber of the General Court agreed to extend the prescribed period until 21 November 2013. However, Mr DD failed to produce proof within the prescribed period of having obtained authorisation for the derogation, as referred to in paragraph 7 above.
            11. On 27 March 2014, the President of the First Chamber of the General Court decided to entrust that Chamber with the task of ruling on the application for legal aid.
            12. On 11 June 2014, at the request of the First Chamber, the plenary meeting referred the case to the First Chamber (Extended Composition).
            13. First, Article 94(1) of the Rules of Procedure states that, in order to ensure effective access to justice, legal aid is to be granted for proceedings before the General Court to cover in whole or in part the costs involved in legal assistance and representation by a lawyer in those proceedings. The cashier of the General Court is to be responsible for those costs (‘legal fees’).
            14. Under Article 94(2) and (3) of the Rules of Procedure, the grant of legal aid is subject to two conditions: (i) the applicant must, because of his economic situation, be wholly or partly unable to pay his legal fees; and (ii) the applicant’s action must not appear to be manifestly inadmissible or manifestly unfounded.
            15. Under Article 95(2) of the Rules of Procedure, the application for legal aid must be accompanied by all the information and supporting documents which make it possible to assess the applicant’s economic situation, such as a certificate issued by a competent national authority attesting to his economic situation. Pursuant to that provision, if the application is made before the action has been brought, the applicant must briefly state the subject-matter of the proposed action, the facts of the case and the arguments in support of the action. The application must be accompanied by supporting documents in that regard.
            16. In the present case, it can be seen from the information before the Court relating to Mr DD’s economic situation, as set out in paragraph 2 above, that the application for legal aid satisfies the first condition, laid down in Article 94(2) of the Rules of Procedure.
            17. As regards the second condition, laid down in Article 94(3) of those Rules, it should be noted that the action in respect of which legal aid is sought does not appear to be manifestly inadmissible or manifestly unfounded.
            18. It must therefore be found that Mr DD meets the conditions which, in accordance with the Rules of Procedure, give a person the right to receive legal aid.
            19. Secondly, it should be noted that Article 2(2) of Regulation No 765/2006, in the version applicable to the present case, provides that no funds or economic resources are to be made available, directly or indirectly, to or for the benefit of the natural persons listed in Annex I to that regulation. Mr DD is one of the natural persons listed in that annex.
            20. On the other hand, Article 3(1) of Regulation No 765/2006 provides:
            ‘By way of derogation from Article 2, the competent authorities in the Member States, as indicated in the websites listed in Annex II, may authorise the release of certain frozen funds or economic resources, or the making available of certain funds or economic resources, under such conditions as they deem appropriate, after having determined that the funds or economic resources are:
            …
            (b) intended exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services;
            …’
            21. Read together, therefore, Articles 2(2) and 3(1) of Regulation No 765/2006 prohibit, in principle, the use of funds for the benefit of an applicant if no derogation is authorised by the competent authorities of a Member State.
            22. However, if — as in the present case — the use of funds for the benefit of a person listed in Annex I to Regulation No 765/2006 is not separable from a legal aid procedure before the Courts of the European Union, that regulation cannot be interpreted without account being taken of the specific r ules governing that procedure, which, in the circumstances of the present case, are the Rules of Procedure of the General Court.
            23. Since neither the Rules of Procedure nor Regulation No 765/2006 expressly provides that one set of rules is to prevail over the other in matters relating to the grant of legal aid, it is important to ensure mutual compatibility in the application of those two sets of rules so that, by being applied consistently the one with the other, the objective pursued by each is sure to be achieved.
            24. As regards the Rules of Procedure, their purpose, so far as the rules relating to the grant of legal aid are concerned, is to ensure effective access to justice, as is clear from Article 94(1) of those Rules and from the third paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, which specifically states that legal aid is to be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.
            25. As regards Regulation No 765/2006, it can be seen from recitals 1 to 4 thereto that the purpose of that regulation is to apply restrictive measures in respect of certain persons. Those measures include the prohibition, set out in Article 2(2) of that regulation, on making funds or economic resources available to such persons.
            26. However, those restrictive measures must be applied without the persons whose funds have been frozen being deprived of effective access to justice (see, to that effect, Peftiev , C‑314/13, ECR, EU:C:2014:1645, paragraph 26), particularly where the legality of the acts imposing those restrictive measures is in dispute.
            27. Thus, the Court of Justice held in Peftiev , paragraph 26 above (EU:C:2014:1645, see paragraph 25, in particular) that the competent national authority does not enjoy an absolute discretion when deciding on whether to authorise a derogation under Article 3(1)(b) of Regulation No 765/2006, but must exercise its powers in a manner which upholds the rights provided for in the second sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights, under which everyone is to have the possibility of being advised, defended and represented. In that regard, it should be borne in mind that, under the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union and the first subparagraph of Article 43(1) of the Rules of Procedure of the General Court, it is necessary to be represented by a lawyer in order to bring an action contesting the legality of restrictive measures.
            28. As regards the criteria to be taken into consideration by the competent national authority when deciding on a request for a derogation under Article 3(1)(b) of Regulation No 765/2006, it is important to note that the provision in question sets out limitations on the use of funds: they must be intended exclusively for the payment of reasonable professional fees and the reimbursement of incurred expenses associated with the provision of legal services. In that context, the competent national authority may control the use of the funds released by setting the conditions it deems appropriate in order to ensure, inter alia, that the objective of the sanction imposed is not frustrated and the derogation authorised is not misused (see, to that effect, Peftiev , paragraph 26 above, EU:C:2014:1645, paragraphs 32 and 33).
            29. However, while the case before the national court in Peftiev , paragraph 26 above (EU:C:2014:1645), concerned a request for the release of funds of persons subject to restrictive measures so that those persons could pay their lawyers, the grant of legal aid in the present case would mean that the cashier of the General Court would be responsible for Mr DD’s legal fees.
            30. In the light of the foregoing, it must be found that to refuse the present application for legal aid solely on the ground that Mr DD has not produced authorisation from a national authority, as mentioned in Article 3(1) of Regulation No 765/2006, even though the application for legal aid satisfies the conditions laid down in the Rules of Procedure, as recapitulated in paragraph 14 above, would be to impede a fundamental right, namely, the right to an effective remedy.
            31. Moreover, as regards the guarantees provided for so as to ensure the achievement of the objectives pursued by Regulation No 765/2006, it should be observed that there is no mechanism of EU law which allows the competent national authorities: (i) to determine whether the grant of legal aid by the General Court is necessary to ensure effective access to justice, which is a matter for the General Court alone to assess; (ii) to control the use, by that Court, of the funds which are necessary in that regard; or (iii) to set conditions for the General Court in order to ensure that the objective of the sanction imposed is not frustrated.
            32. Accordingly, it must be found that, in order to enable the Rules of Procedure to be applied consistently with Regulation No 765/2006 in the present case, the Court is obliged both to grant legal aid to any applicant listed in Annex I to that regulation who satisfies the conditions laid down in Article 94 et seq. of the Rules of Procedure — thus making it possible for the objective pursued by those rules to be achieved — and to ensure that the legal aid granted will be used only to cover that applicant’s legal fees and will not undermine the objective of the restrictive measure imposed, as defined in Article 2(2) of Regulation No 765/2006.
            33. In that regard, it should be added that, in the present case, the Rules of Procedure make it possible for the Court to make sure, without having to require Mr DD to produce authorisation from a national authority, that legal aid will be used only to cover his legal fees.
            34. First, only legal fees are mentioned in Article 94(1) of the Rules of Procedure as fees for which the cashier of the General Court can be held responsible.
            35. Second, under the third subparagraph of Article 96(3) of the Rules of Procedure, the General Court may, without having to fix the exact amount of the legal aid beforehand, specify in the order granting legal aid a limit which the lawyer’s disbursements and fees may not, in principle, exceed. It is accordingly open to the Court, under Article 97(2) of the Rules of Procedure, to calculate a posteriori  the amount strictly necessary to cover the legal fees where, by virtue of the decision closing the proceedings, the recipient of legal aid has to bear his own costs. In that connection, the Court may take into account the difficulty of the work carried out by the designated lawyer and, on the basis of evidence produced by that lawyer, the number of hours which he has actually had to devote to the case, as well as the various expenses which he has had to pay.
            36. In addition, it is standard practice for the General Court to pay the amount thus calculated directly to the designated lawyer, so that the applicant is not given an opportunity to divert the legal aid to serve purposes other than those for which it was granted (see, in that regard, the order in Ayadi  v Council C‑403/06 P, EU:C:2009:496, paragraph 21). As for the lawyer, Regulation No 765/2006 places him under a duty not to hand over his remuneration, in whole or in part, to the applicant; similarly, he is forbidden, more generally, to make funds or economic resources available, directly or indirectly, to the applicant.
            37. In the light of the foregoing, the legal aid applied for must be granted in the present case, despite the fact that no derogation has been authorised under Article 3(1)(b) of Regulation No 765/2006, but the necessary measures must also be taken to ensure that that legal aid will not be diverted.
            38. Lastly, given the subject-matter and nature of the dispute, its significance from a legal point of view, as well as the foreseeable difficulties presented by the case and the amount of work that the proceedings are likely to represent for the parties, it should immediately be made clear, in accordance with the third subparagraph of Article 96(3) of the Rules of Procedure, that the amount representing disbursements and fees of the lawyer designated to defend Mr DD’s interests in the proceedings which he proposes to bring may not in principle exceed EUR 6 000, to cover the entirety of those proceedings.
            39. An amount representing those disbursements and fees will be paid to Maître Kolosovski directly and fixed on the basis of a detailed account to be submitted to the Court.
            
            Operative part
            On those grounds,
            THE GENERAL COURT (FIRST CHAMBER, EXTENDED COMPOSITION)
            hereby orders:
            1. Mr DD is granted legal aid. 
            2. Maître A. Kolosovski is designated as the lawyer to represent Mr DD in Case T‑228/12. 
            3. An amount representing Maître Kolosovski’s disbursements and fees shall be paid to him directly and shall be fixed on the basis of a detailed account to be submitted to the General Court upon conclusion of the case, but may not in principle exceed EUR 6 000. 
            Luxembourg, 10 November 2014.