ORDER OF THE PRESIDENT OF THE COURT
6 November 2013 (*)
(Appeals – Application to intervene – Representation by a lawyer – Interest in the result of the case – Rejection)
In Case C-28/13 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 16 January 2013,
Gabi Thesing, residing in London (United Kingdom),
Bloomberg Finance LP, established in Wilmington (United States),
represented by M. Stephens, solicitor,
appellants,
the other party to the proceedings being:
European Central Bank (ECB), represented by M. López Torres and S. Lambrinoc, acting as Agents,
defendant at first instance,
THE PRESIDENT OF THE COURT,
having regard to the proposal from T. von Danwitz, Judge-Rapporteur,
after hearing the Advocate General, M. P. Mengozzi,
makes the following
Order
1 By their appeal, Mrs Thesing and Bloomberg Finance LP seek to have set aside the judgment of the General Court of the European Union of 29 November 2012 in Case T-590/10 Thesing and Bloomberg Finance v ECB, by which the General Court dismissed their action for annulment of the decision of the Executive Board of the European Central Bank (ECB) of 21 October 2010 rejecting Mrs Thesing’s application for access to two documents concerning the public deficit and the public debt of the Hellenic Republic.
2 By documents lodged at the Court Registry respectively on 3, 6 and 16 May 2013, Media Legal Defence Initiative (‘MLDI’), a body governed by the law of England and Wales established in London (United Kingdom), represented by N. Jansen, senior legal counsel, Access Info Europe (‘AIE’), an association governed by Spanish law established in Madrid (Spain), represented by E. López-Herce, abogado, and Guardian News and Media Ltd (‘GNM’), a company governed by the law of England and Wales established in London, represented by J. Clements, senior legal adviser, applied, on the basis of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, for leave to intervene in the present case in support of the forms of order sought by Mrs Thesing and Bloomberg Finance LP. The latter have not submitted observations concerning the applications to intervene.
3 By documents lodged at the Court Registry on 7 June 2013, the ECB stated that it contests those applications for leave to intervene. It contends, first, that the applications of MLDI and GNM do not satisfy the requirement of representation by a lawyer set out in the third paragraph of Article 19 of the Statute of the Court, a requirement which makes it necessary to engage a third person who is not in an employment relationship with the client. Secondly, the ECB contends that the three applicants for leave to intervene have failed to show that they have a direct interest in the result of the case pending before the Court.
4 Concerning the applications for leave to intervene submitted by MLDI and GNM, it should be noted that those applications were submitted not by a lawyer, but by an employee carrying out the duties of senior legal counsel for MLDI and senior legal adviser for GNM. Under Article 130(3) of the Rules of Procedure of the Court, applicable to appeal procedures pursuant to Article 190(1) thereof, the intervener must be represented in accordance with Article 19 of the Statute of the Court. Under the third paragraph of Article 19, parties other than the institutions and the Member States referred to in the first and second paragraphs of that article must be represented by a lawyer. Since MLDI and GNM are among those parties, it follows that their respective applications for leave to intervene were not submitted in accordance with Article 130(3) of the Rules of Procedure and they should be dismissed as inadmissible.
5 By contrast, the application for leave to intervene made by AIE was submitted in accordance with Articles 130 and 190(1) and (2) of the Rules of Procedure of the Court.
6 Pursuant to the second paragraph of Article 40 of the Statute of the Court, the right to intervene in cases before the Court is open to any person establishing an interest in the result of this case.
7 AIE claims in that regard that it is a non-profit non-governmental association whose object is, according to its Articles of Association, the promotion and protection of the right of access to information in Europe as a means for the defence of civil liberties and the rights of man, in order to encourage public participation in decision making and to hold governments accountable. AIE points out that it works regularly with journalists and assists them to obtain access to documents of the institutions of the European Union and, in particular, of the ECB.
8 According to settled case-law, the concept of ‘an interest in the result of the case’, within the meaning of the second paragraph of Article 40 of the Statute of the Court, must be defined in the light of the precise subject-matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law put forward. The term ‘result of the case’ refers to the operative part of the final judgment which the parties ask the Court to deliver (see, in that regard, inter alia, order of 15 November 1993 in Case C-76/93 P Scaramuzza v Commission [1993] ECR I-5715, paragraphs 6 and 9; and Orders of the President of the Court of 23 July 1998 in Case C-155/98 P Alexopoulou v Commission [1998] ECR I-4935 and I-4943, paragraphs 11 and 12; of 9 February 2007 in Case C-301/05 P Wilfer v OHIM, paragraph 6; and of 19 February 2013 in Case C-365/12 P Commission v EnBW Energie Baden-Württemberg, paragraph 7).
9 The Court has also held that the interest in question cannot be evaluated in the light of abstract legal arguments which go beyond the ruling on the specific act whose annulment is sought (see, in that regard, Orders of the President of the Court 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 53; of 6 April 2006 in Case C-130/06 P(I) An Post v Commission, paragraph 9; and of 5 February 2009 in Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission, paragraph 9).
10 Furthermore, the mere fact of being in a similar situation gives the applicant for leave to intervene only an indirect interest in the result of the case (see the orders in Scaramuzza v Commission, paragraph 11, and Commission v EnBW Energie Baden-Württemberg, paragraph 8).
11 Finally, the Court has also stated that an application for leave to intervene submitted by a professional association may be admitted where it is a representative association whose object is the protection of its members in cases raising questions of principle liable to affect those members (see, inter alia, Orders of the President of the Court of 28 September 1998 in Case C-151/98 P Pharos v Commission [1998] ECR I-5441, paragraphs 6 and 8; and Akzo Nobel Chemicals and Akcros Chemicals v Commission, paragraph 10).
12 That case-law concerning the right of representative associations to intervene cannot be applied to the specific situation of AIE, whose object is the promotion and protection of the right of access to documents.
13 In that regard, it should be recalled that Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), as is apparent from recital 4 in the preamble and from Article 1, is intended to give the fullest possible effect to the right of public access to documents held by one of those institutions (see Case C-135/11 P IFAW Internationaler Tierschutz-Fonds v Commission [2012] ECR I-0000, paragraph 49). Thus, under Article 2(1), that regulation grants the right of access to documents to ‘[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State’. Therefore, the circle of persons who may request access to those documents is, in principle, unlimited.
14 As a result of the very wide access to the documents of those institutions, the promotion of such access is not such as to confer on associations such as AIE a right of intervention as representative associations.
15 Furthermore, even if AIE, like Mrs Thesing, but independently of her, had the right to request access to the same documents to which Mrs Thesing requested access, in view of the case-law referred to in paragraph 10 of the present order, it would in principle not have a direct interest in the result of the case between Mrs Thesing and the ECB for the purposes of the second paragraph of Article 40 of the Statute of the Court.
16 In those circumstances, AIE does not have a direct and existing interest in the ruling on the forms of order sought by the appellants in the context of the present appeal.
17 In the light of the foregoing, the application for leave to intervene submitted by AIE must also be dismissed.
Costs
18 Under Article 138(1) of the Rules of Procedure of the Court, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since MLDI, AIE and GNM have been unsuccessful in their applications for leave to intervene, but the ECB did not seek an order that they pay the costs of the present proceedings, the parties must be ordered to bear their own costs.
On those grounds, the President of the Court hereby orders:
1. The applications for leave to intervene submitted by Media Legal Defence Initiative, Access Info Europe, Guardian News and Media Ltd are dismissed.
2. Media Legal Defence Initiative, Access Info Europe, Guardian News and Media Ltd and the European Central Bank (ECB) are ordered to bear their own costs relating to the present proceedings.
[Signatures]
* Language of the case: English.
© European Union
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