In Case T-18/01 R,
Anthony Goldstein, resident in Harrow, Middlesex (United Kingdom), represented by R. St. John Murphy, Solicitor,
applicant,
v
Commission of the European Communities, represented by P. Oliver, acting as Agent, with an address for service in Luxembourg,
defendant,
APPLICATION for interim measures in the context of an action for annulment under Article 230 EC of the Commission's decision of 12 January 2001 rejecting the applicant's complaint concerning alleged infringement of Articles 81 and 82 EC by the General Council of the Bar of England and Wales,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Facts and procedure
1 The applicant is a British national resident in the United Kingdom of Great Britain and Northern Ireland. He is a qualified medical practitioner who, in 1999, completed the Bar Vocational Course, a prerequisite for admission to the Bar of England and Wales and the practice of law as a barrister in that jurisdiction.
2 On 30 May 1995, the applicant lodged a complaint with the Commission under Article 3 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the EEC Treaty (now Articles 81 and 82 EC) (OJ, English Special Edition 1959-1962, p. 87) in respect of certain allegedly anti-competitive rules applied by the General Council of the Bar of England and Wales (Bar Council), the professional regulatory authority in respect of the provision of legal services by barristers in that jurisdiction.
3 The complaint related, in particular, to the requirement, arising from Rule 210 of the Bar Council's Code of Conduct of the Bar of England and Wales (the Code), that a barrister practising at that Bar should supply legal services only if briefed or instructed by a professional client, to wit by a solicitor or by a member of certain specified professional bodies. This rule is generally referred to as the direct-access rule. The applicant contends that the rule constitutes a restriction of competition contrary to Article 81 EC, inasmuch as it deprives consumers of legal services of the ability to have direct access to the services provided by barristers practising at that Bar.
4 By letter of 16 June 2000, the Commission informed the applicant that it considered it unlikely that Article 81(1) EC could be applicable to the practices to which reference was made in the complaint, since, in its view, they did not affect trade between Member States to any appreciable extent. The Commission nevertheless invited the applicant, pursuant to Article 6 of Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC, OJ 1998 L 354, p. 18), to present any further comments he considered appropriate.
5 Those comments were submitted by the applicant on 14 July 2000 and supplemented by further material submitted on 12 October 2000.
6 On 12 January 2001, the Commission communicated a final decision to the applicant, pursuant to Article 3(2) of Regulation No 17, rejecting his complaint concerning the alleged infringements of Articles 81 and 82 EC by the Bar Council (the contested decision), including the further assertions made by the applicant in his reply to the Commission's letter of 16 June 2000.
7 By application lodged at the Registry of the Court of First Instance on 25 January 2001, the applicant has brought an application seeking the annulment of the contested decision and an order that the Commission bear the costs.
8 By separate application lodged at the Court's Registry on 31 January 2001, the applicant, in accordance with Articles 242 and 243 EC, brought the present application for interim measures in respect of the abovementioned main case. He claims that the President of the Court should:
- declare [that] the application of Community competition rules to the regulatory framework set up by Council [sic] Directives 77/249/EEC and 98/5/EC is based on an obligation of sincere cooperation between the national courts, on the one hand, and the Commission and the Community courts, on the other, in the context of which each acts on the basis of the role assigned to it by the Treaty;
- declare [that] the contested decision sanctions the maintenance in force of an unlawful economic sector in the market for legal services throughout the territory of the United Kingdom;
- declare [that] the contested decision fetters the jurisdiction of the national competition authorities and the national courts throughout the territory of the Community thereby leading to the prohibition of the dismantling of the unlawful economic sector and the prohibition of the creation of a lawful economic sector on the relevant market;
- declare [that] the contested decision appears to be a measure which lacks even the appearance of legality to the extent that it is not open to the Commission, when assessing the exercise of a right arising from a provision of Community law, namely a Council Directive, to alter the scope of that provision or to compromise the objectives pursued by it;
- order the operation of the contested decision to be suspended forthwith, until the Court has given judgment on the main application, to the extent to which the Commission conceals the Community nature and effects of the specific legal framework regulating the legal profession, in order to rob Directive 84/450/EEC of 10 September 1984 of its substance in the field of misleading advertising of legal services insofar as the Member States are deprived of all possibility of adopting combative measures against such misleading advertising by the Bar Council in contradiction with the express intention of the Community legislature;
- order the Commission to pay the costs.
9 The application was notified to the Commission. On 23 February 2001, the latter submitted written observations wherein it seeks the dismissal of the application and an order requiring the applicant to pay the costs.
10 Following the notification of the present application to the Commission, but prior to the receipt of its observations, the applicant lodged, on 14 February 2001, at the Court's Registry a further interim-measures application in respect of the main case to which this application relates. That additional application, which was not notified to the Commission, was registered with the roll-number T-18/01 R III and is the subject of a separate order adopted today.
11 Oral observations in respect of the present application were submitted on behalf of the applicant and the Commission at the interlocutory hearing before the President of the Court on 8 March 2001. The applicant was represented by Mr Peter Marks, Barrister, who had been appointed by the applicant's solicitor, Mr St. John Murphy, to represent the applicant at the hearing. During the hearing the parties' legal representatives replied to questions put by the President, who also expressly referred the applicant's counsel to the obligations incumbent upon him and, in particular, upon Mr St. John Murphy, his instructing solicitor, under Article 41(1) of the Rules of Procedure of the Court of First Instance (the Rules).
Law
12 Under the combined provisions of Articles 242 EC and 243 EC and Article 4 of Council Decision No 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision No 93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 21), the Court of First Instance may, if it considers that the circumstances so require, order that the operation of a contested measure be suspended or may prescribe any necessary interim measures.
13 The first paragraph of Article 19 of the Statute of the Court of Justice, applicable to the Court of First Instance by virtue of Article 46 thereof, specifies that a case brought before the Court set out, inter alia, the subject-matter of the dispute, the submissions and a brief statement of the grounds on which the application is based. A similarly worded obligation is imposed by Article 44(1)(c) of the Rules.
14 Article 104(1) of the Rules specifies that an application to suspend the operation of any measure adopted by an institution is admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. Article 104(2) thereof provides that applications for interim measures must state the circumstances giving rise to the urgency and the pleas of fact and law establishing a prima facie case such as to justify the interim measures applied for. The interim measures sought must, in accordance with Article 107(3) and (4) of the Rules, be provisional inasmuch as they must not prejudge the points of law or fact in issue or neutralise in advance the effects of the decision subsequently to be given in the main action (see, inter alia, the order of the President of the Court of Justice in Case C-149/95 P(R) Commission v Atlantic Container Line [1995] ECR I-2165, paragraph 22, and the order of the President of the Court of First Instance of 12 December 2000 in Case T-335/00 R Goldstein v Commission, not published in the ECR, paragraph 11, confirmed, on appeal, by the President of the Court of Justice in the order of 14 February 2001 in Case C-32/01 P(R) Goldstein v Commission, not published in the ECR). They must not fall outside the scope of the final decision which the Court may reach on the main application (see, inter alia, the orders of the President of the Court of First Instance of 27 October 1998 in Case T-100/98 R Goldstein v Commission, not published in the ECR, paragraph 15, and, on appeal, of the President of the Court of Justice of 11 February 1999 in Case C-4/99 P(R) Goldstein v Commission, not published in the ECR, paragraph 11).
15 Article 41(1) of the Rules provides, inter alia, for the exclusion, by order, of lawyers whose conduct towards the Court of First Instance is incompatible with the dignity of the Court.
The applicant's arguments
16 In respect of the requirement that applications for interim measures state the legal grounds establishing a prima facie case, the applicant contends, in essence, that the contested decision is manifestly illegal. First, he asserts that it fails to satisfy the legal conditions imposed by Regulation No 17, since it distorts the clear intention of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (OJ 1977 L 78, p. 17) and Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ 1998 L 77, p. 36). Second, he alleges that the Commission wrongly ascribes to itself therein the power to deny him an effective legal remedy before a national judicial authority.
17 Regarding the supposed distortion of Directives 77/249 and 98/5, the applicant submits that they harmonise the national laws governing the relationship between lawyers and their clients and that the Community legislature thereby intended to create equivalent conditions of competition for those carrying on the profession of lawyer throughout the Community. He asserts, by reference to the judgment of the Court and the Opinion of Advocate General Léger in Case C-164/94 Aranitis [1996] ECR I-135, that the contested decision fails to have proper regard to the legal framework established by Directives 77/249 and 98/5 for the regulation of the legal profession, especially as regards the conditions to be satisfied for conferring the professional title of lawyer and the Community nature and effects thereof. He also alleges that by defining the market for legal services to include two categories of undertakings, to wit lawyers known as barristers and solicitors, on the one hand, and those known as Queen's Counsel, on the other, the contested decision applies the competition rules in a manner incompatible with the regulatory framework established by Directives 77/249 and 98/5.
18 As regards the denial of an effective legal remedy, the applicant claims, in substance, that the contested decision withholds from the national court having jurisdiction to apply Community competition law the power to set aside national legislative provisions which are capable of hindering, even temporarily, the application of Community law.
19 Insofar as the urgency of his application is concerned, the applicant contends, by reference to the order in Joined Cases 60/81 and 190/81 R IBM v Commission [1981] ECR 1857, that where a decision, such as the contested decision, is so tainted by obvious and serious defects that it is manifestly devoid of any legal basis, the nature and gravity of such an illegality suffices to satisfy the requirement of urgency for the purpose of an interim-measures application. Citing the order in Case 46/87 R Hoechst v Commission [1987] ECR 1549, he submits that this is a fortiori the case where, as in the present case, the contested decision is not only illegal but also unconstitutional. The manifest illegality of the contested decision results from the fact that the Commission failed to cooperate in good faith with the United Kingdom Permanent Representative to the European Communities, while its unconstitutionality flows from the fact that it breaches his fundamental right to a fair trial.
The Commission's arguments
20 The Commission contends that the application is manifestly inadmissible on several grounds.
21 As concerns the first four interim measures claimed by the applicant, the Commission submits, having regard to the nature of the declarations sought by the applicant, that the Court has no jurisdiction to grant such declarations.
22 Furthermore, the first and fourth declarations claimed are, in reality, in the nature of final and not interim relief and are, thus, also beyond the scope of the Court's jurisdiction. The Commission also submits that the first and second declarations sought are also inadmissible because they are manifestly not confined to the specific legal situation of the application but, instead, are capable of applying erga omnes.
23 The claim for the first and fourth declarations, as well as his request for the suspension of the contested decision which constitutes the fifth relief sought, are also inadmissible to the extent that they are directed at Directives 77/249 and 98/5 and Council Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative advertising (OJ 1984 L 250, p. 17), since the contested decision relates exclusively to the rejection of a complaint concerning possible violations of Articles 81 and 82 EC. The Commission recalls that the Court has no jurisdiction to order any interim measure that is unrelated to the claims made in the main action (order of the President of the Court of First Instance of 15 December 1999 in Case T-262/99 R Goldstein v Commission, not published in the ECR, paragraph 15).
24 As regards the application for suspension of the contested decision, the Commission, citing Case T-507/93 R Branco v Court of Auditors [1993] ECR II-1013, paragraph 21, and T-213/97 R Eurocoton v Council [1997] ECR II-1609, paragraph 41, contends that it is also inadmissible because the Court has no jurisdiction in interlocutory proceedings to suspend the operation of a negative act, namely the rejection of the applicant's complaint of 10 August 1993 contained in the contested decision.
25 Finally, the application is inadmissible, in the Commission's opinion, for failing to respect the formal requirements of Article 19 of the Statute of the Court and Article 44(1) of the Rules. Referring, inter alia, to Case T-262/97 Goldstein v Commission [1998] ECR II-2175, the Commission contends that the applicant plainly fails to satisfy the condition of setting out clearly and precisely in the text of the application the essential facts and law on which it is based. In fact, it is drafted in such convoluted and ambiguous terms that the purpose of the measures sought and their supposed link to the main case cannot be determined with clarity.
26 In the alternative, the Commission submits that, insofar as the claim for the suspension of the contested decision is not inadmissible, it is manifestly unfounded.
27 The Commission observes that, as regards the condition that a prima facie case be made out in respect of the main action, the applicant's case is based entirely on the view, expressed in various ways, that the contested decision misinterprets Directives 77/249 and 98/5 thereby breaching the rights which he allegedly enjoys thereunder. It maintains that his interpretation of those Directives is entirely erroneous and, moreover, has recently been fully recognised as such by the Court of Justice in relation to Directive 98/5 in Case C-168/98 Luxembourg v Parliament and Council [2000] ECR I-9131, since it follows from paragraphs 46 to 60 of that judgment that the Directive does not govern the professions with regard to training and conditions of access for natural persons within the meaning of the second sentence of Article 47(2) EC. The Commission also denies that the contested decision, in any respect, operates to deprive the applicant of an effective judicial remedy before the national courts.
28 Consequently, there is no prima facie case to justify the suspension sought.
29 As regards the requirement of urgency, the Commission points out that the applicant has not sought to show that he will suffer any serious or irreparable harm if the measures requested are not granted. His case rests entirely on the assertion that, in effect, there exists an exception to the rule that urgency must be shown by an applicant seeking interim measures in circumstances where the contested decision is manifestly unlawful. While contradicting the existence of any such exception, the Commission submits that the applicant has not even made out a prima facie case that the contested decision is unlawful, let alone that its illegality is manifest and serious.
30 At the hearing, the Commission, whilst acknowledging the applicability of Article 41(1) of the Rules to the conduct of the applicant's solicitor, expressly invited the Court to consider whether the applicant's solicitor had fulfilled his duty as an officer of the court - a duty which the Commission submitted applied as much to the Community judicature as to United Kingdom courts - to act with due diligence and care both as regards the Court and the applicant. Reference was made to the 14 main actions lodged by the applicant prior to the main action to which the present application relates, all of which have been rejected as manifestly inadmissible or unfounded by the Court of First Instance, to his numerous interlocutory applications in respect of each main case, all of which have also been dismissed by the President of the Court of First Instance, and to his almost systematic, but equally unsuccessful, appeal of each order adopted by the Court of First Instance or its President to the Court of Justice. In total, the Commission noted that, following the adoption, on 12 December 1995, pursuant to section 42 of the Supreme Court Act 1981 of a vexatious-litigant order against the applicant by the High Court of England and Wales, the Community judicature has, since 27 February 1996, adopted 36 orders in respect of the applicant's various main proceedings, interlocutory applications and appeals, all of which have been adverse to the applicant. In the Commission's opinion, the continued support by the applicant's solicitor of such frivolous and vexatious applications amounts to a contempt of the Community judicature.
Findings of the President of the Court
31 The inadmissibility of the four declarations sought by the applicant by way of interim measures in the present application (see paragraph 8 above) is clear beyond peradventure.
32 It is settled case-law that in interlocutory proceedings the judge hearing the application has no jurisdiction to order any interim measure unrelated to the claim made by the applicant in the main case. The main proceedings to which the present application relates comprise an action for annulment of a Commission decision rejecting a complaint made by the applicant that certain rules of the Bar Council infringe Articles 81 or 82 EC. The four declarations sought by the applicant have only an indirect, if any, connection with the form of order he is seeking in the main proceedings.
33 It is also settled case-law that the relief sought in an interim-measures application must be interlocutory and not final in nature. It must therefore be of such a nature as not to prejudge the outcome of the main proceedings. The second, third and fourth declarations sought plainly fail to satisfy this requirement.
34 Furthermore, as the Court of First Instance has already had prior occasion to find, in its order dismissing the first main case brought before it by the applicant against the Commission, an individual applicant has no standing under the fourth paragraph of Article 230 EC to obtain remedies which apply erga omnes but is, on the contrary, only entitled to relief in so far as the act whose annulment is sought is capable of bringing about a significant change in his own legal situation (see Case T-235/95 Goldstein v Commission [1998] ECR II-523, paragraph 37; order confirmed on appeal by the order of the Court of Justice of 8 July 1999, Case C-199/98 P Goldstein v Commission, not published in the ECR). The same reasoning applies to interlocutory relief. Since the first three declarations sought by way of interim measures in the present application are either incapable of specifically affecting the applicant's own legal situation or are not limited to his particular situation, they are, for this reason also, manifestly inadmissible.
35 Consequently, as regards the four declarations sought in the form of order submitted by the applicant, the present application is manifestly inadmissible. Although it is unnecessary to consider whether the application, in this respect, is so obviously inadmissible that it falls to be considered as vexatious, in the sense of seeking only to annoy the defendant, there can be little doubt that it is frivolous.
36 It follows that the merits of the application need only be considered insofar as it seeks the suspension of the contested decision.
37 It is apposite first to consider whether the present application satisfies the requirement of urgency.
38 No specific form of material harm has been pleaded and the applicant has not provided any information which could enable this Court to determine whether he is liable to suffer any serious or irreparable harm if the contested decision is not suspended pending the outcome of the main case. The applicant refused, in particular, to permit his legal representative to answer questions put at the hearing regarding his present sources of professional income and, how, if at all, they have been affected by the contested decision.
39 It is clear from the applicant's submissions that, to justify the urgency of the suspension sought, he relies uniquely on the alleged non-material damage which he claims to be suffering as a result of the manifest illegality and unconstitutionality of the contested decision.
40 The applicant's submission is based on a reproduction, mutatis mutandis, of certain arguments advanced before the President of the Court of Justice in Joined Cases 60/81 and 190/81 R IBM v Commission [1981] ECR 1857 and in Case 46/87 R Hoechst v Commission [1987] ECR 1549. However, no order for interim measures was made in those cases and the President of the Court of Justice, clearly without taking a view on the correctness in law of the applicants' submissions, found that no obvious illegality or unconstitutionality was established (IBM, paragraph 7, Hoechst, paragraph 31).
41 In the present application, the far-reaching allegation of manifest illegality advanced by the applicant is almost entirely unsubstantiated. It is based on a particular view of the scope of Directives 77/249 and 98/5 which is not shared by the Commission. There is nothing in the information provided in the application that provides even a shred of support for the applicant's bald assertion that the Commission's interpretation of those Directives is so flagrantly wrong, or motivated by bad faith, that it renders the contested decision manifestly illegal. Indeed, on a preliminary examination the contested decision does not even appear to turn on any such interpretation but on an assessment of the possible applicability of Articles 81 and 82 EC to the impugned conduct of the Bar Council.
42 The applicant's interpretation of Directives 77/249 and 98/5 is based almost exclusively on a quotation from the Opinion of 11 May 2000 of Advocate General Léger in Case C-381/98 Ingmar GB [2000] ECR I-9305. Citing in particular paragraph 33 of the Opinion, the applicant substitutes - without drawing the attention of the Court to the alteration - the words lawyer for the expression commercial agent and Directives 77/249 and 98/5 for the Directive. However, the Directive to which the Advocate General referred was Council Directive 86/653 of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents (OJ 1986 L 382, p. 17). As confirmed by the Court of Justice in Ingmar, it is clear, especially from the second recital in the preamble to Directive 86/563/EEC, that the harmonising measures laid down by [that] Directive are intended, inter alia, to eliminate restrictions on the carrying-on of the activities of commercial agents, to make the conditions of competition within the Community uniform and to increase the security of commercial transactions (paragraph 23). The reference to Ingmar thus provides no support for the view that the Commission's more limited reading of the scope of Directives 77/249 and 98/5 is so obviously incorrect as to constitute a manifest error.
43 Consequently, without its being necessary to decide whether the applicant is correct in asserting that, in cases of patent illegality, an exception exists to the normal rule that in interlocutory proceedings the condition of urgency must be established by reference to the personal circumstances of the applicant, it is clear that the contested decision in the main case is neither manifestly illegal nor unconstitutional.
44 Since the applicant has not referred to any grave or irreparable harm that would be occasioned to him personally by the maintenance in force of the contested decision pending the outcome of the main action, the present application must be rejected without there being any need to consider whether it satisfies the further requirement of demonstrating the existence of a prima facie case in the main action that the contested decision should be annulled. It is therefore unnecessary to consider the Commission's submission that the Court would, even if the requirements of urgency and the existence of a prima facie case were satisfied, have no jurisdiction to order the suspension of a negative decision such as that contained in the contested decision.
45 As regards the Commission's submission that the Court enjoys an inherent power to penalise lawyers who insist on bringing frivolous and vexatious actions before it, it is unnecessary to consider whether such a power exists in the present application. However frivolous, if indeed not vexatious, the present application may be as regards the four heads of declaratory relief claimed, the genuineness of the applicant's interest in seeking the suspension of the contested decision cannot readily be called into question. It is nevertheless appropriate to point out that the conduct of a lawyer who persists in bringing, in respect substantially of the same facts, a series of manifestly inadmissible and/or unfounded applications both for interim and final relief, particularly where those applications almost invariably contain unsubstantiated assertions of manifest illegality against the contested decisions of the Community institution concerned, bad faith or dereliction of duty on the part of that institution, clearly constitutes an abuse of procedure. In that respect, the Court would draw specific attention to Article 41(1) of the Rules under which:
Any adviser or lawyer whose conduct towards the Court of First Instance, the President, a Judge or the Registrar is incompatible with the dignity of the Court of First Instance, or who uses his rights for purposes other than those for which they were granted, may at any time be excluded from the proceedings by an order of the Court of First Instance; the person concerned shall be given an opportunity to defend himself.
The order shall have immediate effect.
46 Whilst it is unnecessary for the purposes of dismissing the present application to invoke the power conferred by Article 41(1) of the Rules, if further applications for interim measures of a frivolous and/or vexatious nature, or which contain sweeping, but unsubstantiated, allegations of manifest illegality, bad faith or other similarly scandalous pleas, continue to be lodged on behalf of the present applicant concerning the subject-matter of the main case, the Court will consider exercising the powers conferred upon it by Article 41(1).
47 It follows from all of the above that the present application for interim measures must be dismissed in its entirety.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The application for interim measures is dismissed;
2. Costs are reserved.
