Provisional text

ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT

23 May 2019 (*)

(Legal aid — Application made before an action has been brought — Financial situation — Insufficient information and supporting documents — Dismissal of application)

In Case T‑630/18 AJ,

OP,

applicant,

European Commission, represented by R. Lyal, L. Mantl and B. Conte, acting as Agents,

defendant,

APPLICATION for legal aid under Article 147 of the Rules of Procedure of the General Court,

THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT

makes the following

Application and procedure

1.1 By application lodged at the Registry of the General Court on 24 October 2018, the applicant, OP, applied for legal aid pursuant to Article 147 of the Rules of Procedure of the General Court, with a view to bringing an action (i) for annulment of the European Commission’s implicit decision rejecting a request for access to documents relating to the administrative measures adopted between registration Ares(2015)2298835 of 5 June 2015 and registration Ares(2015)3272640 of 5 August 2015, concerning the applicant and her complaint lodged under Article 22 of Council Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ 2003 L 11, p. 1) and (ii) for an interim measure ordering the Commission to grant access to those documents forthwith.

2.2 By letter of 22 November 2018, the Commission was invited to submit written observations on the applicant’s application for legal aid.

3.3 In its observations lodged at the Court Registry on 10 December 2018, under Article 148(1) of the Rules of Procedure, the Commission contended that the application for legal aid should be dismissed.

Law

4.4 Under Article 146(1) and (2) of the Rules of Procedure, the grant of legal aid is subject to the dual requirement, first, that the applicant, because of his financial situation, must be wholly or partly unable to meet the costs involved in legal assistance and representation by a lawyer in proceedings before the General Court and, secondly, that his action must not appear to be manifestly inadmissible or manifestly lacking any foundation in law.

5.5 Regarding the financial resources requirement, Article 147(3) of the Rules of Procedure provides that the application for legal aid must be accompanied by all information and supporting documents making it possible to assess the applicant’s financial situation, such as a certificate issued by a competent national authority attesting to that financial situation. That requirement is also clearly laid down in the legal aid application form.

6.6 In the present case, the act by which the applicant made her application for legal aid comprises a number of documents: a covering letter dated 12 October 2018, in which she briefly states the subject matter of her claims. To that letter she attaches, as Annex 1, a 20-page summary of the subject matter of the action for annulment and of the application for an interim measure, in respect of which she requests legal aid, accompanied by attached documents; as Annex 2, the legal aid application form (‘the form’), accompanied by attached documents; and, as Annex 3, a request for recusal of certain members of the Court.

7.7 As a preliminary point, with regard to the form it should be noted that the applicant did not complete it in full. Indeed, the applicant did not fill in any of the boxes in the three columns of the table concerning ‘financial resources’, contained in the section of the form concerning the ‘financial situation of the applicant’ (‘the financial resources table’).

8.8 Article 147(2) of the Rules of Procedure provides that the application for legal aid must be made using the form which is published in the Official Journal of the European Union, and that an application for legal aid submitted without the form will not be taken into consideration. In addition, at the end of the form the applicant is requested to sign and date the application form, ‘solemnly declar[ing] that the information contained in [that] application for legal aid is correct’. Accordingly, where a form is not completed in full, as in the present case, the application for legal aid may be rejected as inadmissible.

9.9 However, with regard to the applicant’s own financial resources at least it is clear from the ‘additional sworn statement concerning the [applicant’s] outgoings and means of supporting herself’, dated 12 October 2018 and attached as Annex 5 to the form (‘the additional statement’) that according to the applicant she has no income. She provides various pieces of information concerning her financial situation and the ways in which she supports herself. It should be pointed out that that information is partly the same as the data asked for in the first column of the financial resources table.

10.10 It must therefore be concluded, as regards her financial situation, that the applicant claims in respect of her own resources that she has no personal income, and that, in accordance with the instruction given in the footnote on page 4 of the form, she attempts to explain in the additional statement how she manages to support herself.

11.11 Primarily, as regards consideration of the applicant’s financial situation, Article 147(3) of the Rules of Procedure provides that the information and supporting documents accompanying the application for legal aid must make it possible to assess whether, in view of that situation, the applicant is wholly or partly unable to meet the costs involved in legal assistance and representation by a lawyer before the Court. Such an assessment necessarily requires that the applicant should provide information and documents with a date sufficiently close to the date on which the application is made that it is possible to assess, objectively, the applicant’s financial capacity to meet those costs. Accordingly, it is stated in particular, in the ‘financial resources’ section of the form, that ‘if, at the time of [the] application, [the] financial resources have remained unchanged since [the preceding] year, the resources taken into account will be those declared to the national authorities in respect of the period running from 1 January to 31 December of [the preceding] year’ and that ‘if [the] financial situation has changed, [the] resources [at the time of the application] will be taken into account, from 1 January [that] year until the date of [the] application’.

12.12 In the present case, first, the applicant asserts that ‘[the legal aid application] document is complete, since, on the basis of the same information and documents, legal aid [was] granted [to her] in Cases [confidential] (1) and T‑478/16 AJ’. That is why she attached to her application, as Annex 1, a statement of income for 2015 and, as Annex 2, a letter from the Deutscher Akademischer Austauschdienst (German Academic Exchange Service) confirming that she was in receipt of a grant until 31 January 2016. Although, as the Court held, those documents, with regard to the period at issue and the date of submission of the applications for legal aid in the cases closed by orders [confidential] and of 16 February 2017, OP v Commission (T‑478/16 AJ, not published), were relevant for assessing the applicant’s financial capacity at that time, that is not so in the present case. The application for legal aid was made in October 2018, almost 3 years after those documents were drawn up. As is stated expressly in the instructions in the ‘financial resources’ section of the form, which are mentioned in paragraph 11 above, the applicant should have provided information concerning her financial resources in 2017, or even 2018 (‘the relevant period’).

13.13 Secondly, neither the statement relating to the bank account the applicant held at the Sparda-Bank Baden-Württemberg eG, dated 22 June 2017, and the letter she sent to that bank on 26 June 2017 challenging the closure of her account, nor the decision of the Sozialgericht Köln (Social Court, Cologne, Germany) of 9 February 2018 granting legal aid, nor the documentary proof, dated 17 July 2017, of the reimbursement of costs by the Amtsgericht Esslingen (Local Court, Esslingen, Germany), nor the documentary proof, dated June 2017, of a request for recovery of a claim against the applicant by the Land Baden-Wurttemberg (Germany), nor the documentary proof of a seminar from 19 to 23 April 2015, nor the certificate of the applicant’s time working at the University of Tübingen (Germany) from 19 to 25 April 2015, attached to the form as Annexes 3, 4, and 5a to 5d, establish what the applicant’s resources were during the relevant period in order to assess her financial situation and thereby assess her capacity to meet the costs of the proceedings.

14.14 Thirdly, in the additional statement the applicant states, first of all, that she works as a university lecturer in the Land Baden-Wurttemberg, but has not received any financial consideration since 2015 because of ongoing disputes between herself and the University of Tübingen, and also that she works in an honorary capacity or as a guest lecturer within international bodies, which does not involve any remuneration. Next, she states that her needs are covered through reimbursement of the costs she has incurred in connection with legal proceedings. Lastly, she does not have a bank account and there is no tax return for the relevant period because of the litigation costs she has to pay.

15.15 Those pieces of information provided in the additional statement are extremely sketchy, if not ambiguous.

16.16 First of all, the assertions about resources derived from the reimbursement of costs clearly focus on one-off events connected with legal proceedings, so they do not show how the applicant, in the absence of any income, manages to meet her basic everyday needs, in particular food, clothing and housing. As the applicant herself acknowledges in the additional statement, payments of that type are not the same as a financial resource that will enable a person to meet their everyday needs.

17.17 Moreover, it should also be said that the reimbursement of the costs she claims to have incurred in connection with legal proceedings must, inevitably, by its nature and in any event partly, be in return for expenditure that she or another person has had to incur previously. However, the applicant does not provide any document to show on what basis the reimbursement was made or the circumstances in which, or how, such expenditure was incurred. If, as she says, she was not in receipt of any income she could not have incurred such costs previously.

18.18 Next, the assertion made in the additional statement that the applicant is not able to produce a tax return for the relevant period because of the litigation costs she has to pay, which she lists in that statement, cannot be accepted for the purposes of considering the present application. The existence of such costs, which, according to the applicant, are being challenged before the national court in the present case, does not justify failure to complete a tax return, and in any case or at the very least, given the express instructions of the form, does not justify failure to produce a certificate issued by a competent national authority attesting to her current financial situation.

19.19 Lastly, the fact remains that the applicant did not state, although expressly requested to do so in the financial resources table, whether she was in receipt of any benefit, allowance or pension, or what resources were received by any spouse or cohabitee or by any other dependant normally living with her.

20.20 For the sake of completeness, it should be noted that it is clear from the case file that nearly all the documents prepared by the applicant in 2017 and 2018 — the covering letter, Annexes 1 and 3 to that letter, the documents provided in Annexes 3, 5 and 6 to the application, and the documents, such as the letters or emails attached in Annexes A, B, G and H, in support of the summary provided as Annex 1 to the application — show expressly, in particular in the headings of some of those documents or in the description of the capacity and contact details of the signatory, that is to say the applicant, that, at least since 2018, the latter appears to have worked in the Department of Physics and Astronomy of Rutgers State University in New Jersey (United States), the postal address of which is 136 Frelinghuysen Road, Piscataway, NJ 08854-8019. Moreover, the contact details she gave in the abovementioned Annex G contain a mobile telephone number in the United States.

21.21 In the light of that supplementary statement for the sake of completeness, which also applies at least with regard to 2018, and in the absence of any explanation on the part of the applicant, there are grounds for questioning whether the latter did indeed work on a regular basis at Rutgers State University. In that regard, it is incumbent on her in any event to explain the material and financial conditions under which she carries out such work and, in accordance with the instructions contained in the ‘financial resources’ section of the form, to provide information and evidence regarding her current financial resources, since 1 January 2018, in connection with carrying out that work.

22.22 It follows from the above considerations that it is not possible to identify the resources that enabled the applicant to support herself during the relevant period.

23.23 In the light of those factors, the conclusion must be drawn that the applicant has not established to the requisite legal standard that, because of her financial situation, she was wholly or partly unable to meet the costs involved in legal assistance and representation by a lawyer in proceedings before the Court.

24.24 In those circumstances, since the condition laid down in Article 146(1) of the Rules of Procedure is not met, the present application for legal aid must be dismissed, without it being necessary to adjudicate on whether the proposed action appears to be manifestly inadmissible or manifestly lacking any foundation in law.

On those grounds,

THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT

hereby orders:

The application for legal aid in Case T‑630/18 AJ is dismissed.

Luxembourg, 23 May 2019.

Registrar

President

Language of the case: German.

1Confidential data omitted.