Case T‑664/16

PJ

v

European Union Intellectual Property Office

(EU trade mark — Representation by a lawyer who is not an independent third party with regard to the applicant — Replacement of a party to the proceedings — Transfer of the rights of the EU trade mark applicant — Representation by a lawyer who is not an independent third party with regard to the applicant for replacement — Inadmissibility)

Summary — Order of the General Court (Fourth Chamber), 30 May 2018

1. Judicial proceedings — Absolute bar to proceeding — Representation of the applicant

   (Rules of Procedure of the General Court, Art. 129)

2. Judicial proceedings — Application initiating proceedings — Formal requirements — Conditions relating to a signatory — Status of a third party in relation to the parties — Party represented by a lawyer employed by a body related to the party — Non-compliance with the requirement of independence

   (Statute of the Court of Justice, Arts 19, third and fourth paras, 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 73(1))

3. Judicial proceedings — Application initiating proceedings — Formal requirements — Conditions relating to a signatory — Status of a third party in relation to the parties — Independent interpretation

   (Statute of the Court of Justice, Art. 19, third para.)

4. EU law — General principles of law — Legal certainty

5. Judicial proceedings — Application initiating proceedings — Formal requirements — Conditions relating to a signatory — Status of a third party in relation to the parties — Legal certainty

   (Statute of the Court of Justice, Art. 19, third para.)

1.  The question of the applicant’s representation is a matter of public policy and may, on that basis and under Article 129 of the Rules of Procedure, be examined by the General Court of its own motion at any time.

   (see para. 47)

2.  Under Article 19, third and fourth paragraphs, and Article 21, first paragraph, of the Protocol on the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to Article 53, first paragraph thereof and, according to Article 73(1), first subparagraph, of the Rules of Procedure of the General Court, parties, other than the Member States and institutions of the European Union, the Surveillance Authority of the European Free Trade Association (EFTA), or the States which are parties to the Agreement on the European Economic Area (EEA), must be represented by a lawyer who is authorised to practise before a court of a Member State or of another State which is party to the EEA Agreement. Further, the application must contain the applicant’s name and permanent address and a statement of the signatory’s capacity. The original of every pleading must be signed by the party’s agent or lawyer.

   According to settled case-law, it is clear from the abovementioned provisions and, in particular, the use of the word ‘represented’ in Article 19, third paragraph of the Statute of the Court of Justice of the European Union that, for the purposes of bringing an action before the General Court, a ‘party’ within the meaning of that article, in whatever capacity, is not permitted to act itself but 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 EEA Agreement.

   In that connection, it must be recalled that the lawyer’s role in the European Union legal order, which is derived from the legal traditions common to the Member States, and on which Article 19 of the Statute of the Court of Justice of the European is based, is that of collaborating in the administration of justice and being required to provide, in full independence and in the overriding interests of justice, such legal assistance as his client requires. That assistance is provided by a lawyer who, structurally, hierarchically and functionally, is a third party in relation to the undertaking receiving that advice. That interpretation of the requirement of the independence of lawyers is relevant in the context of representation before the Courts of the European Union.

   Thus, it has already been held that the requirement that lawyers should be independent means the absence of any employment relationship between the lawyer and his client. The concept of the independence of lawyers is determined not only positively, that is by reference to professional ethical obligations, but also negatively, that is to say, by the absence of an employment relationship.

   That reasoning applies with the same force in a situation in which the lawyers are employed by an entity connected to the party they represent.

   It has also been held that the lawyer of a party, within the meaning of Article 19, third paragraph, of the Statute of the Court of Justice of the European Union, must not have any personal connection to the case in question or any relationship of dependence with his client of such a nature as to place him at risk of being unable to fulfil his vital role of representative of the law in the most appropriate manner. In particular, the Court has held that the financial or structural relationships that the representative has with his client cannot be such as to give rise to confusion between the client’s own interests and the personal interests of its representative.

   The requirement imposed by EU law that a non-privileged party must be represented before the Court by an independent third party cannot therefore be regarded as being a requirement designed solely to exclude representation by employees of the principal or by those who are financially dependent on it. It is general requirement, the observance of which must be examined on a case-by-case basis.

   (see paras 51-57)

3.  Although the conception of the lawyer’s role in the legal order of the European Union derives from the legal traditions common to the Member States, in the context of disputes brought before the Courts of the European Union that conception is implemented objectively and is necessarily independent from the national legal orders. Therefore, the provisions concerning the representation of non-privileged parties before the Courts of the European Union must be interpreted, as far as possible, independently and without reference to national law. The concept of the independence of lawyers in European Union law is defined not only in a positive manner, on the basis of membership of a Bar and adherence to a Code of Conduct and Code of Ethics, but also negatively.

   (see para. 67)

4.  The general principle of legal certainty requires that rules should be clear and precise, so that individuals may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly. However, in order to determine whether the requirements which derive from that principle are satisfied, account must be taken of all the relevant elements which emerge from the terms, objectives or general scheme of that legislation and, if need be, with the assistance of the interpretation of it given by the courts.

   (see para. 70)

5.  The expression ‘[o]ther parties must be represented by a lawyer’, in Article 19, third paragraph, of the Statute of the Court of Justice of the European Union, therefore precludes a party and his representative from being one and the same person. Further, the conception of the lawyer’s role in the EU legal order, and in particular, the requirement of independence, the observance with which must be examined on a case by case basis derives from the legal traditions common to the Member States. Finally, it follows from settled case-law of the EU judicature that ‘fully independent legal assistance’ is that provided by a lawyer who, structurally, hierarchically and functionally, is a third party in relation to the undertaking receiving that advice. Therefore, the fact that the requirement of independence are not expressly provided by the Statute of the Court of Justice of the European Union or the Rules of Procedure cannot undermine the principle of legal certainty.

   (see para. 71)