OPINION OF ADVOCATE GENERAL

delivered on 13 January 2011 (1)

Case C‑137/10

(Reference for a preliminary ruling from the Conseil d’État, Belgium)

(Law governing the institutions – Functioning – Conditions governing the delegation by the Commission to another institution of authority to represent the European Union in legal proceedings – Validity of the authority in the absence of appointment by name of a natural person empowered to represent the delegating institution – Jurisdiction of the national court to decide on the matter – Validity of the authority of the Deputy Secretary-General of the Council to represent the Council in legal proceedings)

1.The instant case raises two issues very different in nature and scope. The first, concerning conferment of the power to represent the European Union for its ordinary appearance in proceedings before a national court, is no longer up-to-date in the precise terms in which it has been formulated. The power to represent the Community, conferred expressly and exclusively on the Commission for all proceedings by Article 282 EC, has been replaced, in Article 335 TFEU, by a power granted to each of the institutions of the European Union in matters relating to their respective operation. Article 282 EC applies to these proceedings only <i>ratione temporis</i>.

The scope of the second issue, on the other hand, is unaffected by time, for it concerns such an important matter of principle as the jurisdiction of national courts to examine the validity of acts of the Union.

I – Legal framework

A – European Union law

2.In accordance with Article 7(1) EC, <i>in fine</i>:

‘Each institution shall act within the limits of the powers conferred upon it by this Treaty.’

3.In accordance with Article 207(2) and (3) EC:

‘2. The Council shall be assisted by a General Secretariat, under the responsibility of a Secretary-General, High Representative for the common foreign and security policy, who shall be assisted by a Deputy Secretary-General responsible for the running of the General Secretariat. The Secretary-General and the Deputy Secretary-General shall be appointed by the Council acting by a qualified majority.

The Council shall decide on the organisation of the General Secretariat.’

‘In each of the Member States, the Community shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. To this end, the Community shall be represented by the Commission.’

5.Pursuant to Article 59(1) of the Financial Regulation: (2)

‘The institution shall perform the duties of authorising officer.’

6.Article 60(1) to (3) of the Financial Regulation provides:

‘1. The authorising officer shall be responsible in each institution for implementing revenue and expenditure in accordance with the principles of sound financial management and for ensuring that the requirements of legality and regularity are complied with.

7.Article 23(2) and (5) of the Council’s Rules of Procedure (3) is worded as follows:

‘2. The Council shall decide on the organisation of the General Secretariat.

Under its authority the Secretary-General and the Deputy Secretary-General shall take all the measures necessary to ensure the smooth running of the General Secretariat.’

‘5. The Secretary-General, assisted by the Deputy Secretary-General, shall have full responsibility for administering the appropriations entered in Section II – Council of the budget and shall take all measures necessary to ensure that they are properly managed. He shall implement the appropriations in question in accordance with the provisions of the Financial Regulation applicable to the general budget of the European Communities.’

B – National law

8.In accordance with Articles 1 and 2(1) of the Decree of the Regent of 23 August 1948 establishing the procedure before the Administrative Section of the Conseil d’État:

Article 1

‘The Conseil d’État shall hear and determine the actions, matters and appeals referred to in Articles 7(1), 8, 9 and 10 of the Law, brought by application signed by the party or by a lawyer of Belgian nationality registered in the bar roll.’

Article 2

‘The application shall be dated and shall include:

II – Facts

9.On 20 November 2002, the Council of the European Union applied to the Gouvernement de la Région de Bruxelles-Capitale (‘the Government of the Brussels-Capital Region’) for planning permission to carry out certain work on the ‘Justus Lipsius’ building. The permission was granted by decisions of 12 and 22 December 2003, and included the condition that the applicant pay a town planning charge of EUR 1 109 750 in total.

10.Taking the view that the charge in question constitutes a tax from which the European Communities are exempt pursuant to Article 3 of the Protocol on Privileges and Immunities of the European Communities, (4) the Council of the European Union lodged the relevant appeal with the Town Planning Board (Collège d’urbanisme) of the Brussels-Capital Region. As the Board did not reply, the Council lodged an appeal with the Government of the Brussels-Capital Region on 10 November 2004.

11.By decision of 14 July 2005, the Government of the Brussels-Capital Region declared the appeal brought by the Council inadmissible on the grounds that it was out of time. It held that the time-limit for contesting the town planning charge was determined by the date on which it was notified to the sole designated person at the Council of the European Union, who had appeared in the proceedings. In that connection, the Council had argued that only its Secretary-General and Deputy Secretary-General could represent it and incur liability on its part.

12.The Council of the European Union brought an action for annulment of the decision of the Government of the Brussels-Capital Region before the Belgian Conseil d’État on 14 July 2005. In response, so far as the present proceedings are concerned, the Government of the Brussels-Capital Region raised a plea of lack of capacity to bring proceedings, arguing that, although the appeal had been brought by ‘the European Communities, represented by the Council of the European Union in the person of its Deputy Secretary-General, Mr Pierre de BOISSIEU’, the case-file contained a power of attorney in which the Commission explicitly authorised ‘Mr Jean-Claude PIRIS, or such other person as may be appointed by him, to bring before the Belgian Conseil d’État an application for the annulment of the decision’ at issue.

13.The Belgian Conseil d’État, taking the view that the scope of Articles 282 EC and 207 EC is open to debate, particularly in relation to the jurisdiction of the Conseil d’État to ensure that the competent body of the European Union has taken its decision to act in accordance with the rules of representation relating to it, has decided to refer the following questions to the Court of Justice of the European Union for a preliminary ruling in accordance with Article 234 EC:

III – The questions referred

14.‘(1) Must Article 282 of the Treaty establishing the European Community, in particular the phrase “[t]o this end, the Community shall be represented by the Commission”, contained in the second sentence of that article, be interpreted as meaning that an institution is properly authorised to represent the Community simply by virtue of the existence of an authority by which the Commission has delegated to that institution its powers of representation in legal proceedings, irrespective of whether or not that authority has appointed by name a natural person empowered to represent the delegating institution?

(2) If not, may a national court such as the Conseil d’Etat determine the admissibility of an action brought by a European institution duly authorised to bring legal proceedings by the Commission, pursuant to the second sentence of Article 282 EC, by examining whether that institution is represented by the appropriate natural person empowered to bring proceedings before the national court?

(3) In the alternative, and in the event of an affirmative reply to the foregoing question, must the first sentence of the first subparagraph of Article 207 EC, more specifically the phrase “assisted by a Deputy Secretary-General responsible for the running of the General Secretariat”, be interpreted as meaning that the Deputy Secretary-General of the Council may properly represent the Council for the purposes of bringing proceedings before the national courts?’

IV – The procedure before the Court of Justice

15.The reference for a preliminary ruling was received by the Registry of the Court on 15 March 2010.

16.Observations were submitted by the Belgian Government, the Council and the Commission.

17.At the hearing held on 10 November 2010, oral argument was presented by the representatives of the Belgian Government, the Council and the Commission.

V – Arguments

18.The written observations of the Commission begin by making two preliminary points. First, the Commission states that it is sure that, in accordance with the Council’s internal rules of procedure, it was Mr Piris, a legal advisor with the Council, or a member of the Council’s Legal Service appointed by him, who entrusted Mr de Briey, a lawyer, with bringing proceedings before the Conseil d’État, from which it follows that it would have been sufficient for the Conseil d’État to have established that that was the case in order to be able to dismiss outright the objection raised by the Brussels-Capital Region. For the Commission, the mere reference to the Deputy Secretary-General as it appears on the first page of the application was quite unnecessary and could have been considered legally irrelevant. In its opinion, if the Court shares that view, and for the purposes of providing the referring court with a helpful reply, it would be appropriate to answer to that effect before examining the questions referred for a preliminary ruling as they have been formulated.

19.Next, by way of its second preliminary point, the Commission expresses its astonishment that the Brussels-Capital Region, as a public authority of a Member State, should adopt such a course of action in the proceedings before the national court, in which it seeks to rely on an alleged procedural defect of that nature, when there can be no reasonable doubt concerning the intention to bring proceedings manifested by the Council and it is perfectly well aware of the spheres of competence of the Deputy Secretary-General and the legal advisor to the Council.

20.So far as the first question referred is concerned, the Commission argues that, in order to temper the exclusive nature of the power of representation conferred on it by Article 282 EC, it makes it a rule to grant an authority to the other institutions to represent the Communities in legal proceedings in matters relating to their respective operation. The Treaty of Lisbon adopted that approach by providing, in Article 335 TFEU, for the Union to be represented directly by each of the institutions in matters relating to their operation, without the need for an authority from the Commission. (5)

21.There is no specific legislation laying down the conditions and the manner in which that practice of granting authority, which has not been disputed in the instant case, must be effected. In any event, the Commission submits that the practice may not be made subject to the particular conditions of the Member States and that instead, in the interests of uniformity, it must be European Union law that lays down a uniform body of rules to be observed by the Commission. In that connection, the Commission submits that, for the purposes of granting an authority to another institution, it is necessary and sufficient that: (1) the rules governing its internal decision-making be observed; (2) the purpose and scope of the authority be sufficiently defined and, lastly, (3) the institution to which authority is granted be clearly identified. In the Commission’s opinion, all those conditions have been satisfied in the instant case.

Further, the Commission maintains that, while that is the generally observed practice, no provision or general principle requires it to appoint a specific natural person in the delegate institution as the sole person empowered to represent it. The appointment is always made in agreement with the institution concerned, for, were the Commission to make the appointment unilaterally, it would encroach unjustifiably on the scope of that institution’s administrative autonomy.

23.In the present case, the Commission claims that it mentioned the Council’s legal advisor specifically by name in response to the suggestion made to it by the Council in that connection. However, such a mention was not necessary in law to ensure the validity of the authority granted to the Council, which, furthermore, permits the appointment of any other person.

24.So far as concerns the second question, the Commission argues that, once it has been established that the institution is duly authorised by the Commission to bring proceedings, the national court is not required, in principle, to carry out any further examination. It could, at most, in the event of any uncertainty, satisfy itself that the person who has entered an appearance before it acts on behalf of the institution, a matter which, in the instant case, is not open to question.

25.On the contrary, the Commission takes the view that the national court may not review the validity of the appointment, whether by reference to the authority granted by the Commission or by reference to the rules of procedure of the delegated institution. Thus, the national court may not determine whether the natural person who appears before it satisfies the conditions required for appointment or whether that person has been correctly appointed by the competent bodies and in the proper manner. A review of that kind would amount to an encroachment on the internal organisation of the institution and would lead to the national court interpreting that institution’s rules of procedure.

31.In the instant case, it has been established that the natural person who brought the action before the referring court was not the person appointed by the Commission, namely, Mr Piris, nor was it someone appointed by him, as moreover permitted by the authority granted by the Commission by means of a form of subdelegation of powers the validity of which, in the opinion of the Belgian Government, may be lawfully called into question. In short, the Belgian Government submits that the person who brought the action before the national court acted without any authority at all.

32.In relation to the second question, the Belgian Government maintains that, in accordance with the Court’s case-law, the principle of the autonomy of the institutions of the European Communities prevents a national court from encroaching on their powers by replacing them in the exercise of their decision-making power. However, it is clear from that case-law that national courts may establish whether an institution has acted in accordance with the rules applicable to it. Accordingly, the Belgian Government submits that a national court is entitled to verify the admissibility of proceedings brought by an institution by checking whether that institution acts through the natural person whom the Commission has empowered to bring the proceedings.

39.So far as concerns the third question, the Council argues that, in view of its position regarding the second question, there is no need to give a reply. Nevertheless, after pointing out that the object of the main proceedings concerns the fiscal immunity of the Communities, the Council states that, in accordance with Article 207(2) EC, Article 59(1) of the Financial Regulation, Article 23(2) and (5) of the Council’s Rules of Procedure, and the internal rules concerning the implementation of the Council’s budget adopted on 20 December 2002, the Deputy Secretary-General, as the representative of his institution, performs the duties of authorising officer for the section of the Communities’ budget relating to the Council. As authorising officer, and in accordance with Article 60(1) and (3) of the Financial Regulation, he is required to implement the revenue and expenditure set out in the budget in accordance with the principles of sound financial management and to ensure that the requirements of legality and regularity are complied with. That is the framework applicable to the decision of the Deputy Secretary-General, as the person responsible for the management of the appropriations of his institution, to bring proceedings before the national court to ensure that the Council does not have to pay, from its budget, the sum claimed by the Brussels-Capital Region, which, in its opinion, is not due.

VI – Assessment

41.It is necessary to begin by stating that the three questions referred in these proceedings do not require the Court to settle the specific case brought before the referring court, that is to say, whether the Community is properly represented in the proceedings of which the Belgian Conseil d’État is seised. The very wording of the three questions referred makes clear that what is expected of the Court is a reply in the abstract to questions which are similarly abstract. Accordingly, it is not a case of determining whether the individuals who have appeared on behalf of the Community in the main proceedings were lawfully entitled to do so but rather of identifying the rules governing the representation of the Community when it is a party to proceedings before a national court in accordance with Article 282 EC. It is the Belgian Conseil d’État which, on the basis of the ruling to be given by the Court on that question of law and by applying the law so stated by the Court to the case, must give the judgment it considers appropriate in order to resolve the dispute before it.

42.Article 282 EC conferred on the Commission the status of the Community’s representative for the sole purpose of enabling the exercise ‘[i]n each of the Member States’ of the legal capacity granted to the Community as a legal person. The article specifically provides that that capacity includes the right to ‘be a party to legal proceedings’.

43.It is, therefore, an organic power of representation pursuant to which the Commission became the sole person authorised to speak for the Community in its relations with the Member States governed exclusively by the respective national legal systems. In other words, in those relations in which the Community acts as a legal person governed by private law, lacking, therefore, as it were, all imperium, it is subject to national law like any other individual.

44.In its capacity as the Community’s representative under Article 282 EC, the Commission exercised a specific power of representation purely ad extra in the sphere of national law, independent of the powers vested in it ad intra under Community law. In the exercise of that representative function, the Commission acted as if it were the Community, by asserting in the relevant national order the will of the Community deriving from the procedures for adopting provisions and legal acts laid down in Community law. The will manifested was not, therefore, that of the Commission but rather that formed through the proper exercise of the powers conferred by the Treaties on the various Community bodies which could, therefore, ultimately be traced back to the Community itself.

45.Representation of the Community by one of its bodies does not strip the other bodies of any of their powers, nor may it be detrimental to them in the exercise of those powers or impede the fulfilment of their responsibilities when, in order to carry out those responsibilities, it is necessary for the Community to act as a legal person under the national law of a Member State. The Commission is a party to legal proceedings, as the Community’s representative, when that is in the interests of the Community in the opinion of one of its bodies whose powers, for their proper exercise, require it to appear and plead before the national courts.

46.That is, in any event, the reasoning followed by Article 335 TFEU, not applicable to the instant case but of some relevance for the purposes of interpretation, in so far as it formalised the practice followed in the application of Article 282 EC.

by providing that, without prejudice to the general authority to represent the European Union which is exercised by the Commission, the Union ‘shall be represented by each of the institutions, by virtue of their administrative autonomy, in matters relating to their respective operation.’ That connection between holding a power, on the one hand, and being a party to legal proceedings as a means of ensuring the exercise of that power, on the other, contributes not only to greater effectiveness in the exercise of the power but is also in the interests of the proper administration of justice in so far as the parties to the proceedings may define the subject-matter of the dispute before the court in terms which best reflect the particular situation in which they find themselves as the holders of conflicting interests. In that regard, the Court has observed that it is in the interests of the administration of justice that where Community liability is involved by reason of the act of one of its institutions, the Community should be represented before the court by the institution against which the matter giving rise to liability is alleged (judgment in Werhahn Hansamühle, paragraph 7).

47.Therefore, so far as the present case is concerned, the power conferred on the Commission by Article 282 EC is restricted to the representation of the Community before the courts of the Member States by one of its institutions. The will represented is not the Commission’s own will but that of the Community; in other words, in each case, that of the Community body whose sphere of competence covers the Community action which, in order to be effective in law, requires the intervention of a national court. Therefore, far from reducing the many responsibilities entrusted ad intra to the institutions to a single unit in favour of the Commission, the power of representation under Article 282 EC must be construed as an instrumental power in the interests of the responsibilities of the institutions as they extend ad extra before the courts of the Member States.

48.In turn, it has become the settled unchallenged practice of the Commission to grant authority to the other institutions to represent the Community in legal proceedings when their respective operation so requires. As stated above, it is that practice which was eventually formalised by Article 335 TFEU now in force. No one has disputed – or could seriously dispute – that that, as it were, ‘internal’ authority is not open to objection in law, for it is not precluded by Article 282 EC, nor does the nature of the authority provided for in that article prevent the institution actually concerned from representing the Community in legal proceedings to protect its interests as a legal person. In short, the best defence of the Community’s interests is that which appears to underpin the practice whereby representation of the Community in legal proceedings is entrusted, as a matter of course, to the institution which may best defend those interests.

49.Obviously, it is only since the entry into force of Article 335 TFEU that direct representation of the Union by the institution specifically concerned, other than the Commission, has been possible, but the previous system did not preclude delegation of the power of representation if effected by the appropriate ‘internal’ authority from the Commission was in place.

50.The decisive matter is, therefore, the manner in which that authority is to be formalised. Naturally, there must be an unequivocal, clear intention to entrust the power of representation of the Community to another institution. However, it must be presumed that that intention to empower another institution is in all cases preceded by, and directed specifically to, the fulfilment of another intention, which is to be a party to legal proceedings; such an intention does not have to be solely and exclusively that of the Commission and instead it may also be that of the institution whose operation requires the bringing of legal proceedings as the most appropriate means of ensuring the proper performance of its tasks.

51.Naturally, there is nothing to prevent the Commission, in the lawful exercise of its competence under Article 282 EC, from directly representing the Community even for the purposes of defending the more immediate interests of another institution. It is clear that the approach of rationally allocating the tasks of the institutions for the benefit of the higher interest of the Community would lead – as in fact it did in the past – to the practice which has now acquired legislative status in Article 335 TFEU.

52.Whilst it is true that there is no duty whatsoever to give another institution authority to represent the Community in legal proceedings, once the Commission has decided to do so, it does not, however, appear that it may make the power of representation granted subject to any conditions concerning either the manner of exercising the defence of the Community’s interests before the courts or the individuals who may act on behalf of the delegate institution. Any other conclusion would amount to unacceptable encroachment on the sphere of the institutional and organisational autonomy of that institution. Further, it would also come into conflict with the very reason for the authority which, as has already been pointed out, is to enable the defence of the Community’s interests by the institution which, in each case, is most capable of protecting those interests.

53.It may be concluded from the foregoing that the Commission was merely required to grant a formal authority to the institution on which it conferred the power to represent the Community in legal proceedings, to defend interests relating directly to that institution, without appointing ‘by name a natural person empowered to represent the delegate institution’, to use the wording of the first question referred by the Conseil d’État.

54.A different question is whether, if a named appointment is made but is not observed, that in itself invalidates a specific authority. If, as appears to be the case according to the Commission, the practice has been to make such an appointment in agreement with the institution concerned, its effect must be limited to the purely internal sphere of the Community in connection with the organisation of the work of defending its interests.

55.Therefore, in accordance with Article 282 EC, the Community has been properly represented before the national courts either by the Commission or by the institution which the Commission has formally empowered for the purposes of specific court proceedings. As the delegate of a power, the institution concerned will exercise the power of representation granted to it as that institution and, therefore, in accordance with the established procedure for deciding and acting upon its institutional interests; that is to say, through the individuals authorised to act in its name and, therefore, to represent it.

56.It follows from the foregoing that the third question referred by the Conseil d’État calls for an affirmative reply. The individuals who are lawfully entitled to act in the name of the Council must include its Deputy Secretary-General if, as is the case, the Community interest requiring the Community to be a party to legal proceedings concerns the latter’s budget, the administration and implementation of which is the sole responsibility of the Deputy Secretary-General in accordance with Article 23(2) and (5) of the Council’s Rules of Procedure.

57.Although, in view of the way in which it has been formulated, the second question requires an answer only if the first question has received a negative reply, it is none the less appropriate to point out that the courts of the Member States are not entitled to review the lawfulness of an authority granted by the Commission to another Community institution. Applying to the instant case the case-law on the conferment of the status of official or servant of the Union, it is clear that any review of an authority granted by the Commission to the Council comes within the exclusive jurisdiction of the Community courts, for any involvement in the matter on the part of national courts would constitute an unlawful encroachment on the autonomy of the European Union institutions.

58.For which reason, even if an authority is manifestly invalid, a national court cannot do other than refer the appropriate question for a preliminary ruling under Article 267 TFEU.

59.The jurisdiction of national courts is limited, therefore, to reviewing the lawfulness of the act pursuant to which the Community – through the body which represents it under European Union law – grants to a specific lawyer the power to appear and plead before a court of a Member State when national procedural rules so require. Since it is a strictly national requirement which does not concern the status of the individual appearing but rather the form in which he must appear, the Union, which in these circumstances acts solely as a legal person devoid of any imperium, may not disregard it. Similarly, it is clear that the Union may not disregard the judgment which is finally given by the court of the Member State to whose jurisdiction it has submitted.

VII – Recapitulation

60.It follows from all of the foregoing that, in line with the abstract terms in which the Belgian Conseil d’État has framed its questions, the authority provided for in Article 282 EC does not require the appointment by name of a specific natural person, nor, if a named person is expressly appointed, does the appearance of a different person in the proceedings invalidate the authority granted to the delegate institution, provided that that person is entitled to act generally on behalf of that institution, as is the case of the Deputy Secretary-General of the Council. Further, only the Court of Justice may rule on the validity of the internal authority in question. National courts, on the other hand, have exclusive jurisdiction to review the power which, as the case may be, national law requires for representation by a lawyer.

VIII – Conclusion

61.In the light of the foregoing considerations, I propose that the Court should reply to the questions referred by the Belgian Conseil d’État in the following terms:

Article 282 EC, in particular the phrase ‘[t]o this end, the Community shall be represented by the Commission’, must be interpreted as meaning that an institution other than the Commission is properly authorised to represent the Community simply by virtue of the fact that the Commission has delegated to that institution its powers of representation of the Community in legal proceedings, irrespective of whether or not that authority has appointed by name a natural person empowered to represent the delegate institution.

The first sentence of the first subparagraph of Article 207 EC, more specifically the phrase ‘assisted by a Deputy Secretary-General responsible for the running of the General Secretariat’, must be interpreted as meaning that the Deputy Secretary-General of the Council may properly represent the Council for the purposes of bringing proceedings before the national courts.

A national court such as the Belgian Conseil d’État may not review the lawfulness of an ‘internal’ authority granted under Article 282 EC, and must, where appropriate, refer the relevant question to the Court of Justice for a preliminary ruling.

Original language: Spanish.

Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities

Council Decision of 5 June 2000 adopting the Council's Rules of Procedure

Annexed to the EC Treaty pursuant to the Treaty of Amsterdam.

Article 335 TFEU: ‘In each of the Member States, the Union shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. To this end, the Union shall be represented by the Commission. However, the Union shall be represented by each of the institutions, by virtue of their administrative autonomy, in matters relating to their respective operation.’

As the Commission observed, the principle of administrative autonomy was recognised by the Court, in the context of the ECSC Treaty, in Joined Cases 7/56, 3/57 to 7/57 Algera and Others v Assemblée commune [1957] ECR 39.

Joined Cases 63 to 69/72 [1973] ECR 1229.

For example, Case C-288/04 AB [2005] ECR I-7837, paragraph 31.