Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE GENERAL COURT (Eighth Chamber)

20 June 2022 (*)

(Action for annulment - Preliminary issue - Lack of representation by a lawyer authorised to practise solely before the courts or tribunals of the United Kingdom in one of the situations exhaustively provided for by Article 91(2) of the Agreement on the withdrawal of the United Kingdom from the Union and from Euratom - Lack of representation by a lawyer authorised to practise before the courts or tribunals of a Member State or of another State which is a party to the EEA Agreement - Article 19 of the Statute of the Court of Justice of the European Union)

In Case T-449/21,

Natixis, established in Paris (France), represented by J.-J. Lemonnier, L. Ghebali, lawyers, J. Stratford, E. Neil, Barristers-at-Law, and M. García, Solicitor,

applicant,

v

European Commission, represented by M. Farley, T. Franchoo and I. Söderlund, acting as Agents,

defendant,

THE GENERAL COURT (Eighth Chamber),

composed of J. Svenningsen (Rapporteur), President, R. Barents and C. Mac Eochaidh, Judges,

Registrar: E. Coulon,

having regard to the applicant’s application, made pursuant to Article 130(2) of the Rules of Procedure of the General Court, on 14 March 2022, that the Court should recognise Mr R. Howell, Barrister, and Mr E. Davis, Solicitor, as its representatives in the present case, together with the Commission’s observations on that application,

makes the following

Order

1 By its action based on Article 263 TFEU, the applicant, Natixis, seeks the annulment of Commission Decision C(2021) 3489 final of 20 May 2021 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.40324 - European Government Bonds) (‘the contested decision’), in so far as that decision relates to it.

Legal framework

2 The Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 7; ‘the Withdrawal Agreement’) entered into force on 1 February 2020, in accordance with Article 185 thereof. Consequently, since that date, the United Kingdom of Great Britain and Northern Ireland has no longer been a Member State of the European Union.

3 The Withdrawal Agreement provided, in Article 126, for a transition period, which ended on 31 December 2020, during which EU law was applicable to the United Kingdom, unless otherwise provided for in that agreement.

4 Relations between the European Union and the United Kingdom are now governed, inter alia, by the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (OJ 2021 L 149, p. 10; ‘the Trade and Cooperation Agreement’).

Law

5 In the application lodged in the present action on 30 July 2021, the applicant stated that it was represented by J. Stratford and R. Howell, Barristers, J.-J. Lemonnier, lawyer, and by E. Davis and M. García, Solicitors.

6 As regards Mr Howell, Mr Davis and Ms Garcia, the Court received, as evidence of entitlement to practise as required by Article 51(2) of its Rules of Procedure, a certificate from the General Council of the Bar of England and Wales (United Kingdom), as evidence of Mr Howell’s status as a barrister, a certificate from the Solicitors Regulation Authority (United Kingdom) declaring Mr Davis’s status as a solicitor as well as a certificate from that authority attesting to Ms Garcia’s status as a solicitor and a certificate from the Paris Bar declaring that she is registered with the Paris Bar under her original title (solicitor) pursuant to 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).

7 By letter of 11 October 2021, the applicant asked the Court for an explanation of the reasons for the decision of the President of the General Court of 7 September 2021 refusing to authorise Mr Howell, Mr Davis and Ms Garcia to represent it in the present proceedings, on the ground that, having regard to the practising certificates produced, they were entitled to practise only before the courts of the United Kingdom.

8 By measures of organisation of procedure, adopted on the basis of Articles 89 and 90 of its Rules of Procedure and Article 24(2) of the Statute of the Court of Justice of the European Union, the General Court, first, asked the parties about the situation of Ms Garcia, who relied on a practising certificate issued by the Paris Bar pursuant to Directive 98/5, and, second, asked the French Government for information on whether a lawyer entitled to practise in the United Kingdom could practise before the French courts and tribunals.

9 In response, the applicant informed the Court that Ms Garcia was also entitled to practise before the Irish courts and tribunals and provided the practising certificate to that effect.

10 In view of that new factor, Ms Garcia has been authorised to represent the applicant in the present proceedings.

11 By letter of 14 March 2022, the applicant again requested the Court to provide it with explanations as to why Mr Howell and Mr Davis had not been authorised to represent it in the present proceedings.

12 Under Article 130(2), (5) and (7) of the Rules of Procedure, if a party, by a separate document, applies for a decision on a preliminary issue, the Court is to give a decision on that application as soon as possible, after having prescribed a time limit for the other parties to submit their observations on it in writing.

13 Since the Commission submitted its observations within the prescribed time limit, it is necessary to rule on the applicant’s application that it be represented by Mr Howell and Mr Davis, in respect of whom documents were submitted to the Court solely certifying that Mr Howell and Mr Davis are entitled to practise before the courts and tribunals of the United Kingdom.

14 As a preliminary point, it should be noted that, in the present action, the applicant is validly represented by several lawyers, barristers-at-Law and one solicitor.

15 Consequently, this preliminary issue has no effect on the admissibility of the action.

16 As regards the substance, it should be recalled, as regards the representation before the Courts of the European Union of a party not covered by the first and second paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, that the third and fourth paragraphs of Article 19 of that Statute, applicable to proceedings before the General Court in accordance with Article 56 of that Statute, lay down two separate and cumulative conditions, namely, the first, that parties not referred to in the first and second paragraphs of Article 19 must be represented by a lawyer, and, second, that only a lawyer authorised to practise before the courts or tribunals of a Member State or of another State which is a party to the Agreement on the European Economic Area (EEA) (OJ 1994 L 1, p. 3) may represent or assist a party in proceedings before the Courts of the European Union (see judgment of 24 March 2022, PJ and PC v EUIPO, C-529/18 P and C-531/18 P, EU:C:2022:218, paragraph 58 and the case-law cited, and order of 7 December 2021, Daimler v EUIPO - Volkswagen (IQ), T-422/21, EU:T:2021:888, paragraph 15 and the case-law cited).

17 Nonetheless, in the case of an action such as the present action, it is necessary to take into account at the outset any relevant provisions of the international agreements between the United Kingdom and the European Union, namely the Withdrawal Agreement and the Trade and Cooperation Agreement.

18 In the first place, it should be noted that Articles 87, 90 to 92 and 95 of the Withdrawal Agreement, read together, provide, in essence, that a lawyer authorised to practise before the courts or tribunals of the United Kingdom may represent or assist a party before the General Court in cases which are exhaustively listed.

19 First, in accordance with Article 91(1) of the Withdrawal Agreement and in the light of the current division of competencies between the Court of Justice and the General Court, such a lawyer who represented a party on 31 December 2020 may continue to represent or assist that party in an action before the General Court.

20 Secondly, in accordance with the first sentence of Article 91(2) of the Withdrawal Agreement, read in conjunction with Article 95(1) and (3) of that agreement, and in the light of the current division of competencies between the Court of Justice and the General Court, a lawyer authorised to practise before the courts and tribunals of the United Kingdom may represent or assist a party before the General Court in an action for annulment brought against decisions adopted by the EU institutions, bodies, offices and agencies before 31 December 2020 and addressed to the United Kingdom, or to natural and legal persons residing or established in the United Kingdom.

21 The same applies to decisions of the institutions, bodies, offices and agencies of the European Union and addressed to the United Kingdom or to natural and legal persons residing or established in the United Kingdom and which are adopted after 31 December 2020, either in the context of procedures applying Articles 107 and 108 TFEU to aid granted before 31 December 2020 and initiated before 31 December 2024, or, as in the present case, in the context of proceedings applying Article 101 or 102 TFEU initiated before 31 December 2020, or in the context of proceedings applying Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) initiated before 31 December 2020, or in the context of investigations by the European Securities and Markets Authority (ESMA) into certain alleged infringements listed exhaustively and initiated before 31 December 2020, or in the context of investigations by the European Anti-Fraud Office (OLAF) initiated before 31 December 2024.

22 Third, in accordance with the second sentence of Article 91(2) of the Withdrawal Agreement, read in conjunction with Article 90 thereof, and in the light of the current division of competencies between the Court of Justice and the General Court, lawyers authorised to practise before the courts or tribunals of the United Kingdom may represent or assist that State before the General Court in proceedings in which that State has decided to intervene in accordance with point (c) of the second paragraph of Article 90 of the Withdrawal Agreement.

23 Contrary to what the applicant claims, the present action does not correspond to any of the situations exhaustively provided for by the Withdrawal Agreement and referred to in paragraphs 18 to 22 above.

24 It is true that this action was brought after 31 December 2020 and is directed against a decision adopted following proceedings in progress on 31 December 2020 and applying Article 101 TFEU.

25 However, it is apparent from the contested decision and from the documents produced by the applicant pursuant to Article 78(4) of the Rules of Procedure that the applicant is a French joint stock company, société anonyme, incorporated under French law and established in France.

26 Therefore, the contested decision cannot be regarded, vis-à-vis the applicant, as being addressed to a legal person established in the United Kingdom, as required by the first sentence of Article 91(2) of the Withdrawal Agreement, read in conjunction with Article 95(1) and (3) of that agreement.

27 That conclusion cannot be called into question by the fact that other addressees of the same decision, namely NatWest Group plc and Nomura International plc, are, for their part, established in the United Kingdom, since, according to settled case-law, a decision adopted by the Commission on the basis of Article 101 TFEU, although drafted and published as a single decision, must be regarded as a group of individual decisions establishing, in relation to each of the undertakings to which it is addressed, the breach or breaches which that undertaking has been found to have committed and, where appropriate, imposing on it a fine (see, to that effect, judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P, EU:C:2002:582, paragraph 100 and the case-law cited).

28 The same applies to the applicant’s claim that it is ‘established’ in the United Kingdom as an ‘overseas company’, since it is apparent from the documents provided by the applicant, and in particular from the documents issued by Companies House (United Kingdom), that it is solely registered and not established in that State.

29 Moreover, contrary to what the applicant claims, it is in no way apparent from the order of 7 December 2021, IQ (T-422/21, EU:T:2021:888), that lawyers who are only entitled to practise before the courts and tribunals of the United Kingdom could represent the applicant in the present action. The action in the case which gave rise to that order was rejected as being manifestly inadmissible, in the absence of representation of the applicant by a lawyer authorised to practise before the courts or tribunals of a Member State or of another State which is a party to the EEA Agreement.

30 Finally, even if the applicant were to rely on Article 94(2) of the Withdrawal Agreement, suffice it to note, as is apparent from the title under which that article is placed, that the right of representation or assistance conferred by that provision on lawyers authorised to practise before the courts or tribunals of the United Kingdom applies only in the context of administrative procedures referred to in Articles 92 and 93 of the Withdrawal Agreement, to the exclusion of any subsequent court proceedings, governed by Article 91 of that agreement (see, by analogy, order of 7 December 2021, IQ, T-422/21, EU:T:2021:888, paragraph 23).

31 Consequently, as the Commission has argued, the applicant cannot validly maintain that, under the Withdrawal Agreement, Mr Howell and Mr Davis, who are solely authorised to practise before the courts and tribunals of the United Kingdom, are entitled to represent it before the General Court in the present action.

32 Nor can the applicant rely on any provision of the Trade and Cooperation Agreement.

33 It is true that Article 194(1) of the Trade and Cooperation Agreement provides that a party thereto is to allow a lawyer of the other party to that agreement to supply in its territory designated legal services under that lawyer’s home jurisdiction professional title in accordance with Articles 128, 129, 135, 137 and 143 of that agreement. However, Article 193(a) and (g) of that agreement states that legal services relating to EU law, which covers Article 101 TFEU at issue in the contested decision, and legal representation before, inter alia, the courts and other duly constituted official tribunals of a party to that agreement, including the General Court, are to be excluded from the benefit of that scheme.

34 Having ruled out the possibility for the applicant to rely on the Withdrawal Agreement or the Trade and Cooperation Agreement, it is necessary to ascertain, in the second place, whether, pursuant to Article 19 of the Statute of the Court of Justice of the European Union, to which Article 51(1) of the Rules of Procedure of the General Court refers, Mr Howell and Mr Davis, respectively, barrister and solicitor, may nevertheless be authorised to represent the applicant.

35 To that end, they must be recognised as having the status of a ‘lawyer’ within the meaning of the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union.

36 As regards their entitlement to practise before the courts or tribunals of a Member State or of another State which is a party to the EEA Agreement, it should be noted that the present action was brought on 30 July 2021, that is to say after the expiry, on 31 December 2020, of the transition period provided for in Article 126 of the Withdrawal Agreement and during which, unless otherwise provided in that agreement, EU law was to be applicable to and in the United Kingdom despite its status as a third State.

37 It follows that the question whether lawyers designated by the applicant authorised to practise only before the courts and tribunals of the United Kingdom must be considered to be entitled to practise before a court of a Member State or of another State which is a party to the EEA Agreement, for the purposes of the fourth paragraph of Article 19 of the Statute of the Court of Justice of the European Union, can now no longer be examined having regard to the provisions or acts of EU law, including those applicable to the profession of lawyers, such as Directive 98/5 or 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).

38 Therefore, such an examination must be carried out in the light of any specific legislation of a Member State unilaterally authorising those lawyers to practise before its courts and tribunals (see, to that effect, judgment of 24 March 2022, PJ and PC v EUIPO, C-529/18 P and C-531/18 P, EU:C:2022:218, paragraph 59).

39 The applicant has not referred to any legislation of that kind.

40 In that regard, it may be noted, in the light of the French Government’s reply to the measure of organisation of procedure, that such legislation does not exist in France.

41 French law allows such a lawyer to represent a party before the French courts and tribunals either if he or she has been entered, prior to the expiry of the transition period, on the roll of a French Bar under the title of French avocat, or if, prior to the expiry of the transition period, he or she has submitted an application for recognition of his or her professional qualifications and that application is being processed, or if, after the expiry of the transition period, he or she has successfully completed the examination of knowledge of French law provided for by the applicable legislation and he or she has been validly entered on the roll of a French Bar under the title of French avocat.

42 Consequently, neither Mr Howell nor Mr Davis can be regarded as the applicant’s representative in the context of the action brought by the applicant against the contested decision, whether under the Withdrawal Agreement or the Trade and Cooperation Agreement or Article 51(1) of the Rules of Procedure, read in conjunction with the fourth paragraph of Article 19 of the Statute of the Court of Justice of the European Union.

43 It follows that the present application must be rejected.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby orders:

1. The application seeking that the General Court recognise Mr R. Howell and Mr E. Davis as the representatives of Natixis is rejected.

2. The costs are reserved.

Luxembourg, 20 June 2022.

* Language of the case: English.