Case T-184/04

Sulvida – Companhia de alienação de terrenos, L^da

v

Commission of the European Communities

(Manifest inadmissibility – Action for failure to act – Proposal for a directive –Representation of the applicant by a lawyer who is not a third party not permitted)

Order of the Court of First Instance (Third Chamber), 13 January 2005 

Summary of the order

Procedure – Originating application – Formal requirements – Conditions relating to a signatory – Third party capacity in relation to the parties – Company represented by its managing director in his capacity as a lawyer – Inadmissible

(Statute of the Court of Justice, Arts 19, third para., and 53, first para.)

In order to bring an action before the Court of First Instance, a party within the meaning of the third paragraph of Article 19 of the Statute of the Court of Justice, which applies to proceedings before the Court of First Instance by virtue of the first paragraph of Article 53 of that Statute, must use (if the action is not to be inadmissible) the services of a third person authorised to practise before a court of a Member State or of a State which is a party to the Agreement on the European Economic Area.

A lawyer who is also a managing director of a company and who thus acts as its ‘governing body’ cannot be regarded as a ‘third person’ and so is not authorised to sign the application initiating proceedings on behalf of that company.

(see paras 8, 10-12)

ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)

13 January 2005 (*)

(Manifest inadmissibility – Action for failure to act – Proposal for a directive –Representation of the applicant by a lawyer who is not a third party not permitted)

In Case T-184/04,

Sulvida – Companhia de alienação de terrenos, L^da, established in Lagoa (Portugal), represented by N. Buchbinder, lawyer,

applicant,

v

Commission of the European Communities,

defendant,

APPLICATION for an order directing the Commission to propose a directive on cross-border transfers of seats of companies with share capital and of partnerships,

 

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of M. Jaeger, President, J. Azizi and E. Cremona, Judges,

Registrar:  H. Jung,

makes the following

Order

 Procedure

1       By application lodged at the Registry of the Court of First Instance on 26 May 2004, the applicant, relying on Article 232 EC, brought the present action against the Commission for failure to act, seeking a declaration that the Commission is required to adopt, with respect to the Member States, legislation authorising and facilitating cross-border transfers of seats of companies with share capital and of partnerships without the legal orders of the Member States being able to make such transfers more difficult or impossible and, in particular, to convert into a directive the ‘proposal for a Fourteenth Company Law Directive of the European Parliament and of the Council on cross-border transfers of seats of companies with a change of the applicable law’.

2       The applicant is a company governed by Portuguese law, represented by its managing director, Mr N. Buchbinder. It has appointed as its representative ad litem the company Pro-Videntia Rechtsanwaltsaktiengesellschaft, represented by its director, Mr N. Buchbinder, a lawyer with sole power to represent that company, who is the same person as the managing director of the applicant. The application is signed by Mr Buchbinder in his capacity as a lawyer and as director of Pro‑Videntia Rechtsanwaltsaktiengesellschaft.

 Law

3       Under Article 111 of the Rules of Procedure of the Court of First Instance, where it is clear that the Court of First Instance has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court of First Instance may give a decision on the action by reasoned order, without taking further steps in the proceedings.

4       The Court considers that in this case it has sufficient information from the documents in the file and hereby decides, in the light of the incurable nature of the formal defect contained in the application, to give a decision of its own motion without taking further steps in the proceedings.

5       Under the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice, which applies to the Court of First Instance by virtue of Article 53 of that Statute:

‘... parties must be represented by a lawyer.

Only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Court.’

6       The first paragraph of Article 21 of the Statute of the Court of Justice provides, in addition, that:

‘A case shall be brought before the Court by a written application addressed to the Registrar. The application shall contain the applicant’s name and permanent address and the description of the signatory ... ’

7       Finally, according to the first paragraph of Article 43(1) of the Rules of Procedure:

‘The original of every pleading must be signed by the party’s agent or lawyer.’

8       It is apparent from those provisions, and in particular from the use of the term ‘represented’ in the third paragraph of Article 19 of the Statute of the Court of Justice, that, in order to bring an action before the Court of First Instance, a party within the meaning of that article must use the services of a third person authorised to practise before a court of a Member State or of a State which is a party to the Agreement on the European Economic Area (order of the Court of Justice in Case C‑174/96 P Lopes v Court of Justice [1996] ECR I‑6401, paragraph 11; order of the Court of First Instance of 29 November 1999 in Case T‑131/99 Shaw and Others v Commission, not published in the ECR, paragraph 11).

9       That requirement to have recourse to a third party is based on a conception of the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of justice, such legal assistance as his client needs. Such a conception reflects legal traditions common to the Member States and is also to be found in the Community legal order as is demonstrated by, precisely, Article 19 of the Statute of the Court of Justice (Case 155/79 AM & S v Commission [1982] ECR 1575, paragraph 24, and the order of the Court of First Instance in Case T-79/99 Euro-Lex v OHIM (EU-LEX) [1999] ECR II‑3555, paragraph 28).

10     It follows that Mr Buchbinder, the lawyer representing the applicant, cannot be regarded, for the purposes of these proceedings, as a ‘third person’ within the meaning of the order in Lopes v Court of Justice. The application was made on behalf of the applicant by Mr Buchbinder in his capacity as a lawyer. However, it is clear from the decision of the applicant’s shareholders (‘Gesellschafterbeschluss’) of 17 February 2003 that Mr Buchbinder is also the managing director of the applicant and that he therefore acts as a ‘governing body’ of the latter. In those circumstances, Mr Buchbinder is not authorised to represent the applicant in these proceedings.

11     Since the application initiating proceedings was signed by Mr Buchbinder, the present action has not been brought in conformity with either the third and fourth paragraphs of Article 19 and the first paragraph of Article 21 of the Statute of the Court of Justice or Article 43(1) of the Rules of Procedure.

12     Consequently, the application must in any event be dismissed as manifestly inadmissible.

13     For the sake of completeness, the application is also manifestly inadmissible inasmuch as the applicant claims that the Court should direct the Commission to submit to the Member States a proposal for legislation with a specific content relating to cross-border transfers of seats of companies with share capital and of partnerships. According to settled case‑law, the Community judicature is not entitled, when exercising judicial review of legality, to issue directions to the institutions or to assume the role assigned to them (see, inter alia, Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Services and Others v Commission [1998] ECR II‑3141, paragraph 53, and Case T‑127/98 UPS Europe v Commission [1999] ECR II‑2633, paragraph 50).

14     Moreover, a mere proposal for a directive, such as the applicant is demanding from the Commission, on cross-border transfers of seats of companies with share capital and of partnerships would not be an act producing binding legal effects vis-à-vis third parties, but a purely intermediate preparatory measure. Such a measure is not a measure which may be the subject of an action for annulment under Article 230 EC, and the failure to adopt such a measure may likewise not be challenged by an action for failure to act under Article 232 EC (Case 90/78 Granaria v Council and Commission [1979] ECR 1081, paragraph 12 et seq.; orders in Case T-167/95 Kuchlenz-Winter v Council [1996] ECR II‑1607, paragraph 20 et seq.; Case T-175/96 Berthu v Commission [1997] ECR II‑811, paragraph 18 et seq.; and of 1 December 1999 in Case T‑198/99 Buchbinder and Nöcker v Commission, not published in the ECR, paragraph 11).

15     It must also be recalled that an action for annulment brought by an individual is not admissible when it is directed against the refusal to adopt a generally applicable regulation (order in Case T‑22/98 Scottish Soft Fruit Growers v Commission [1998] ECR II‑4219, paragraph 41). That rule applies by analogy to the present case, in so far as the substance of the directive which the applicant seeks to have the Commission directed to propose would also be of a generally applicable legislative nature. It follows that an action for failure to act brought by a natural or legal person, seeking a declaration that the Commission has unlawfully refrained from proposing the adoption of a directive, is also inadmissible.

16     It follows from all the foregoing considerations that the present application must be dismissed as manifestly inadmissible, without there being any need to notify it to the defendant.

 Costs

17     Pursuant to Article 87(1) of the Rules of Procedure, the applicant must bear its own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby orders:

1.      The application is dismissed as manifestly inadmissible.

2.      The applicant shall bear its own costs.

Luxembourg, 13 January 2005.

H. Jung

M. Jaeger

Registrar

President

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* Language of the case: German.