Case T‑527/14

Paul Rosenich

v

European Union Intellectual Property Office

(Internal market — Decision of EUIPO rejecting a request for inclusion on the list of professional representatives — Condition relating to the existence of a place of business within the European Union — Article 93(2)(b) of Regulation (EC) No 207/2009 — Freedom to provide services — Article 36 of the EEA Agreement — Consistent interpretation)

Summary — Judgment of the General Court (Fifth Chamber), 13 July 2017

1. International agreements — European Union Agreements — Primacy over secondary EU legislation — Obligation to interpret acts of secondary law in the light of international agreements — Direct effect — Conditions

   (Art. 216(2) TFEU; EEA Agreement)

2. International agreements — Agreement establishing the European Economic Area — Freedom to provide services — Restrictions — Prohibition — Legal scope identical to that of EU provisions — Uniform interpretation — Limits

   (Art. 56 TFEU; EEA Agreement, preamble, fifth para., and Art. 36(1))

3. International agreements — Agreement establishing the European Economic Area — Freedom to provide services — Restrictions — Prohibition — Direct effect

   (Art. 56 TFEU; EEA Agreement, Art. 36(1))

4. International agreements — Agreement establishing the European Economic Area — Freedom to provide services — Restrictions — Prohibition — Condition that a professional representative of EUIPO have a place of business within the EU — Not permissible — No justification

   (Art. 56 TFEU; EEA Agreement, Art. 36(1); Council Regulation No 207/2009, Art. 93(2)(b); Council Regulation 2015/2424)

5. EU trade mark — Appeals procedure — Action before the EU judicature — Power of the General Court to alter the contested decision — Limits

   (Council Regulation No 207/2009, Art. 65(3))

1.  It is clear from Article 216(2) TFEU that international agreements concluded by the European Union bind the institutions of the European Union and the Member States.

   It is clear from settled case-law that the provisions of such agreements form an integral part of the legal order of the European Union as from their entry into force.

   On that basis, the Court of Justice has already stated that the primacy of international agreements concluded by the European Union over provisions of secondary EU legislation meant that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements.

   It is also clear from settled case-law that the provisions of such an agreement may have direct effect if they are unconditional and sufficiently precise. However, in order for the EU judicature to be able to undertake an examination of the alleged incompatibility of an act of the European Union with the provisions of such an agreement, it is also necessary that the nature and the broad logic of that act do not preclude it.

   (see paras 52-55)

2.  As regards the Agreement creating the European Economic Area (EEA Agreement), its provisions, including as regards Liechtenstein, form an integral part of the EU legal system.

   In accordance with the fifth paragraph of its preamble, the EEA Agreement is intended, in particular, to provide for the fullest possible realisation of the free movement of goods, persons, services and capital within the whole EEA, so that the internal market established within the European Union is extended to the EFTA States.

   In that regard, the rules applicable to relations between the Contracting Parties in the fields covered by the EEA Agreement essentially correspond to the parallel provisions of the TFEU and the measures adopted in pursuance of that treaty.

   From that angle, several provisions of the EEA Agreement are intended to ensure as uniform an interpretation as possible thereof throughout the EEA. It is for the EU judicature, in that context, to ensure that the rules in the EEA Agreement which are identical in substance to those of the Treaty are interpreted uniformly in the EU legal order.

   It has already been held that the rules prohibiting restrictions on the freedom to provide services laid down in Article 36(1) of the EEA Agreement have the same legal scope as those imposed by Article 56 TFEU. Accordingly, in the field at issue, the rules laid down by the EEA Agreement and those laid down by the TFEU must be given a uniform interpretation.

   However, EU case-law relating to restrictions on the exercise of freedom of movement within the European Union cannot be transposed in its entirety to the freedoms guaranteed by the EEA Agreement, since those latter freedoms are exercised within a different legal context.

   (see paras 56-59, 61, 62)

3.  Article 56 TFEU, which, like Article 36(1) of the EEA Agreement, enshrines the freedom to provide services, is sufficiently precise and unconditional, so that it has direct effect. As regards the nature and the broad logic of the EEA Agreement, neither the Board of Appeal nor EUIPO has put forward any arguments capable of demonstrating that it cannot be relied on directly by individuals. On the contrary, that possibility arises from the eighth paragraph of the preamble to the EEA Agreement, which emphasises the important role that individuals play in the EEA through the exercise of the rights conferred on them by that agreement and through the judicial defence of those rights. Furthermore, it is important to point out the Court of Justice has already examined the compatibility of an EU act in the light of the EEA Agreement.

   (see para. 65)

4.  Article 56 TFEU requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction — even if it applies to national providers of services and to those of other Member States alike — which is liable to prohibit, to impede or to render less advantageous the activities of a provider of services established in another Member State in which he lawfully provides similar services.

   It is clear from the case-law of the Court of Justice that the requirement that a patent agent, qualified as a representative before the patent office in another Member State and wishing to supply services, have a place of business in the host Member State, or even that he appoint a person authorised to accept service, constitutes a restriction on the freedom to provide services.

   The condition set out in Article 93(2)(b) of Regulation No 207/2009 that a professional representative have a place of business in the EU therefore constitutes a restriction on the freedom to provide services within the European Economic Area (EEA).

   Nevertheless, national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the TFEU are considered to be compatible with that treaty if they fulfil four conditions: they must be applied in a non-discriminatory manner, they must be justified by imperative requirements in the general interest, they must be suitable for securing the attainment of the objective which they pursue, and they must not go beyond what is necessary to attain it.

   Although it is true that a conforming interpretation of secondary EU law cannot serve as the basis for an interpretation of that law that is contra legem, that is not the case as regards the condition that a professional representative have a place of business in the EU.

   It is not apparent either from Regulation No 207/2009 in the version applicable before the entry into force of Regulation 2015/2424 or from the elements of fact and of law put forward by EUIPO that it was the specific intention of the EU legislature to prevent persons with a place of business in an EFTA State within the EEA, such as Liechtenstein, from being entered on the list of professional representatives.

   The intention of the EU legislature was, rather, to ensure that communications between EUIPO and the interested parties should be of a specific quality and reliability. Such an objective does not necessarily require the person concerned to have a place of business in the territory of the European Union.

   That interpretation is supported by Regulation 2015/2424, by which references to the territory of the European Union were replaced by references to the territory of the EEA with regard, in particular, to conditions for inclusion on the list of professional representatives in Article 93 of Regulation No 207/2009. Although that is an amendment with a significant practical impact, there is nothing to indicate that it is follows from an intention to change policy in relation to EFTA States within the EEA. First, that amendment does not appear in the Commission’s legislative proposal COM(2013) 161 final of 27 March 2013, and was introduced only later in the legislative process. Secondly, the legislature in no way clarified its approach in the preamble to Regulation 2015/2424. Accordingly, that amendment must be regarded as a technical adjustment, with no purpose other than to bring secondary EU law into line with the obligations arising from the EEA Agreement.

   (see paras 66-69, 83-86)

5.  The power to alter decisions, granted to the General Court pursuant to Article 65(3) of Regulation No 207/2009, does not have the effect of conferring on that Court the power to carry out an assessment on which the Board of Appeal has not yet adopted a position. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the General Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take.

   (see para. 89)