In Case T-49/04

ORDER OF THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE

3 April 2006 (*)

(Restrictive measures directed against persons connected with Usama bin Laden, the Al-Qaeda network and the Taliban – Freezing of funds – Action for annulment – Legal aid – Agreement of the Security Council of the United Nations)

In Case T-49/04 AJ,

Faraj Hassan, currently held at Brixton (United Kingdom), represented by E.Grieves, Barrister, and H. Miller, Solicitor,

applicant,

v

Council of the European Union, represented by S. Marquardt and E.Finnegan, acting as Agents,

and

Commission of the European Communities, represented by J. Enegren and C.Brown, acting as Agents, with an address for service in Luxembourg,

defendants,

APPLICATION for legal aid,

THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES

makes the following

Order

1By application lodged at the Registry of the Court of First Instance on 12 February 2004, Mr Hassan brought an action against the Council and the Commission for, first, annulment of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2001 L 139, p. 9), as amended by Commission Regulation (EC) No 2049/2003 of 20 November 2003 amending for the 25th time Council Regulation (EC) No 881/2002 (OJ 2003 L 303, p. 20) and, second, for damages.

2By act lodged at the Registry of the Court of First Instance on 21 October 2005, Mr Hassan applied to the Court for legal aid under Article 94 of the Rules of Procedure of the Court of First Instance, in the version then in force.

3In support of that application he claimed that he had been detained since 16 July 2002 and therefore received no social security benefits. Furthermore, he has no other income or capital either, not even a bank account. In those circumstances, it is impossible for him to produce a certificate issued by the competent authority attesting to his lack of means for the purposes of the second subparagraph of Article 94(1) of the Rules of Procedure in the version then in force. He has, however, requesting the Court to regard them as equivalent to such a certificate, produced two documents attesting to the grant of legal aid by the competent British authorities. The first, issued on 24 July 2003 by the Greater London Magistrates’ Court Authority, relates to extradition proceedings. The other, issued on 7 February 2005 by the Legal Services Commission of the London Region, relates to proceedings for habeas corpus.

4Arguing, in particular, that this case is of the highest political importance and the greatest legal complexity, Mr Hassan sets at a sum not to exceed EUR 10000 the approximate amount of his lawyers’ fees and disbursements. That sum corresponds to that granted by way of legal aid to Mr Ayadi by order of the President of the Second Chamber of the Court of First Instance of 3 February 2003 in Case T-253/02 AJ (not published in the ECR). In Mr Hassan’s view, Cases T‑253/02 and T-49/04 raise similar issues.

5In addition, it is clear from the application for legal aid that Mr Hassan requests that his interests should continue to be represented by the lawyers who have assisted him until now.

6By letter of the Registrar of 25 October 2005, the Court of First Instance invited the other parties to submit observations on Mr Hassan’s application for legal aid.

7The Commission did not take any steps in response to that invitation.

8In its observations lodged at the Registry of the Court of First Instance on 16 November 2005 the Council expressed surprise at the belatedness of the application for legal aid, but waived any formal objection, in the light of the wording of Article 94 of the Rules of Procedure in the version then in force.

9With regard to the evidence relied on in support of the application, the Council declared that it left it to the Court to assess whether these elements constitute sufficient evidence of the applicant’s need of assistance.

10So far as the form of legal aid sought is concerned, the Council found it acceptable that the applicant’s request was for aid for the instruction of a solicitor and junior counsel.

11As regards the appropriate amount of legal aid to be granted to Mr Hassan, the Council deplores the fact that the latter has not submitted to the Court a breakdown of the costs already incurred, or an estimate of those yet to be incurred. It notes also that the legal context of this case is the same as that of Case T‑253/02, which ought in its view to lead to a reduction in legal costs. As a result, the Council considers that it ought to be possible for the maximum amount of legal aid granted to be less than EUR 10 000.

12In this regard Article 94(1) of the Court of First Instance’s Rules of Procedure, in its version as amended on 12 October 2005 (OJ 2005 L 298, p. 1), makes it clear that, in order to ensure effective access to justice, legal aid granted for proceedings before the Court of First Instance is to cover, in whole or in part, the costs involved in legal assistance and representation by a lawyer before the Court. The cashier of the Court of First Instance is responsible for those costs.

13Pursuant to Article 94(2) and (3) of the Rules of Procedure thus amended, the grant of legal aid is subject to the twofold condition that, first, the applicant, because of his economic situation, should be wholly or partly unable to meet the costs involved in legal assistance and representation in proceedings before the Court of First Instance and that, second, his action should not appear to be manifestly inadmissible or manifestly unfounded.

14Pursuant to Article 95(2) of the Rules of Procedure thus amended, the application for legal aid must be accompanied by all information and supporting documents making it possible to assess the applicant’s economic situation, such as a certificate issued by the competent national authority attesting to that situation.

15By virtue of Article 96(2) of the Rules of Procedure thus amended, the decision on the application for legal aid is to be taken by the President by way of an order, which must, if it refuses the aid applied for, state the reasons on which it is based.

16By measure of organisation of procedure of 24 January 2006, the President of the Second Chamber of the Court of First Instance informed the parties that, in the light of the information and supporting documents provided by Mr Hassan, and without opposition on the part of the Council or the Commission, he proposed to find that the conditions relating to the grant of legal aid had, in principle, been satisfied and to grant in part Mr Hassan’s application for aid. He also proposed to designate Mr Hassan’s present lawyers, Edward Grieves and Henry Miller, to represent the applicant in the present case, pursuant to Article 96(3) of the Rules of Procedure as amended. He further stated that in accordance with Article 96(3) of the Rules of Procedure as amended, the sum granted by way of legal aid would be paid directly by the cashier of the Court of First Instance to the lawyers instructed to represent Mr Hassan.

17Nevertheless, the President of the Second Chamber of the Court of First Instance also held that, until such time as a decision should have been given on the substance or operation of the contested measures should have been suspended in the present case, the provisions of Article 2(2) and (3) of Regulation No 881/2002, adopted pursuant to Resolutions 1267 (1999), 1333 (2000), 1390 (2002), 1526 (2004) and 1617 (2005) of the Security Council of the United Nations, prohibited the Court in principle from paying any sum of money whatsoever to Mr Hassan’s lawyers by way of legal aid, unless it is formally established that the applicant has been granted a derogation to that end under Article 2a of Regulation No 881/2002, adopted in accordance with Resolution 1452 (2002) of the Security Council of the United Nations.

18The President of the Second Chamber of the Court of First Instance therefore requested Mr Hassan to produce, within a period to be fixed by the Registry of the Court of First Instance, notification issued by one of the competent authorities referred to in Article 2a(2) of Regulation No 881/2002, establishing that he had made an application for a derogation from Article 2 of that regulation in order to obtain legal aid in these proceedings, in a sum that must be less than EUR 10000, and that that application had been granted in compliance with those provisions.

19Enclosed with a letter registered at the Registry of the Court of First Instance on 7 March 2006 Mr Hassan produced the notification in question, in the form of a licence issued on 21 February 2006 by the Financial Sanctions Unit of the Bank of England.

20The provisions of Article 2a of Regulation No 881/2002 apparently having been properly complied with, the measures referred to in paragraph 16 above are to be formally adopted.

21As regards the amount of legal aid to be granted to Mr Hassan, the President of the Second Chamber of the Court of First Instance considers that it follows from both the broad logic and the wording of Articles 94 and 95 of the Rules of Procedure that the benefit of legal aid must as a rule be restricted to the covering of the costs of proceedings incurred either at the same time as, or after, the making of the application for aid. In contrast, save in exceptional circumstances, it is neither in keeping with the letter and spirit of those provisions nor in the interests of the proper administration of justice for legal costs incurred before that date to be chargeable to legal aid. Unless or until the contrary is proved, it must be supposed that the applicant did not find himself unable to meet those costs and that he does not, therefore, satisfy one of the conditions for the grant of legal aid.

22In the circumstances, it is to be found as a fact that, after lodging his action for annulment on 12 February 2004, Mr Hassan waited more than 20 months, after the close of the written procedure and four days before the hearing of 25 October 2005 closing the oral procedure, before making this application for legal aid.

23Mr Hassan has advanced no explanation of the belatedness of this application, whereas he must in the normal course of events have had to incur most of the legal costs during that period of 20 months.

24That being so, Mr Hassan has not proved that he was, in the period before he applied for legal aid, unable to meet the costs of these proceedings.

25The legal aid must therefore be limited to the costs incurred by Mr Hassan for the purposes of the hearing of 25 October 2005 and subsequently.

26In the order in Ayadi v Council and Commission, paragraph 4 above (paragraph 12), which related to proceedings very like these, the President of the Second Chamber of the Court of First Instance considered that, in light of the subject-matter and the nature of the dispute, of its legal importance and also of the difficulties that might be foreseen in the case, of the foreseeable extent of the work which the proceedings before the Court would entail for his lawyers and of the interest which the case presented for the parties, the fees and disbursements of the lawyers appointed might not, in principle, exceed EUR 10 000.

27It is furthermore to be noted that Mr Ayadi and Mr Hassan are represented by the same solicitor, that the Court of First Instance has held a joint hearing in Cases T‑253/02 and T‑49/04 and that, as a general rule, representation of a party by several lawyers is not necessary (see, to that effect, the orders of the Court of Justice of 6 January 2004 in Case C-104/89 DEP Mulder and Others v Council and Commission [2004] ECR I‑1, paragraph 62, and of 15 December 2004 in Case C-39/03 P-DEP Cambridge Healthcare Supplies v Commission (not published in the ECR), paragraph 33, and cannot therefore be paid for out of legal aid.

28Having regard to the foregoing considerations, the amount to be paid by way of legal aid to the lawyers instructed to assist Mr Hassan, in accordance with Article 96(3) of the Rules of Procedure, must be fixed at EUR 4000.

On those grounds,

THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE

hereby orders:

1.Mr Faraj Hassan is granted legal aid.

2.Edward Grieves and Henry Miller are appointed as lawyers to assist Mr Hassan.

3.A sum of EUR 4000 shall be paid to the lawyers instructed to assist the applicant.

Luxembourg, 3 April 2006.

* Language of the case: English.