61994B0107

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1. Actions for annulment of measures ° Natural or legal persons ° Measures of direct and individual concern to them ° Provision setting up the language regime for the single procedural system for obtaining a Community trade mark ° Services of a trade mark agent ° Inadmissibility

(EC Treaty, Art. 173, fourth para.; Council Regulation No 40/94, Art. 115)

2. Procedure ° Criteria for the admissibility of actions ° Permissible in the light of the right of every person to a fair hearing

(European Convention on Human Rights, Art. 6)

1. Article 115 of Council Regulation No 40/94 on the Community trade mark, which sets up the language regime for the single procedural system established by that regulation for obtaining a Community trade mark, produces legal effects with respect to a category of persons envisaged in the abstract, namely persons seeking to obtain a Community trade mark on their own behalf or on behalf of their principals.

An application for annulment of that regulation is therefore not admissible if it is brought by a natural person affected by the contested measure solely in his or her objective capacity as a trade mark agent, in the same way as any other trade mark agent who is, or might be in the future, in the same situation with regard to the language used until now in his or her professional activity.

2. The principle, embodied in Article 6 of the European Convention on Human Rights and recognized in the Community legal order, that all persons are entitled to a fair hearing cannot preclude certain criteria regarding admissibility from being set for the institution of judicial proceedings.

In Case T-107/94,

Christina Kik, a lawyer and trade mark agent, represented by Goosen L. Kooy, of the Hague Bar, with an address for service in Luxembourg at the Chambers of Nicolas Decker, 16 Avenue Marie-Thérèse,

applicant,

v

Council of the European Union, represented by Giorgio Maganza and Guus Houttuin, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Bruno Eynard, Manager of the Legal Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,

and

Commission of the European Communities, represented by Pieter Van Nuffel, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, of the Legal Service, Wagner Centre, Kirchberg,

defendants,

supported by

Kingdom of Spain, represented by Alberto José Navarro González, Director General of Community Legal and Institutional Coordination, and Gloria Calvo Díaz, Abogado del Estado, of the State Legal Department dealing with matters before the Court of Justice, acting as Agents, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard Emmanuel Servais,

intervener,

APPLICATION for the annulment of Article 115 of Council Regulation (EC) No 40/94 of 20 December 1993 in so far as it excludes Dutch from the languages of the Office for Harmonization in the Internal Market (trade marks and designs), together with a claim that the Court should not adopt or cause to be adopted the measures enabling the Office to begin its work,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (First Chamber),

composed of: J.L. Cruz Vilaça, President, H. Kirschner and V. Tiili, Judges,

Registrar: H. Jung,

makes the following

Order

Legal background

1 Article 2 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) establishes an Office for Harmonization in the Internal Market (trade marks and designs) ("the Office").

2 The use of languages in applications for trade marks and in opposition, revocation or invalidity proceedings is governed by Article 115 of Regulation No 40/94. Article 115(1) specifies that an application for a Community trade mark may be filed with the Office in any one of the official languages of the European Community. Article 115(2) states that the languages of the Office are, exclusively, English, French, German, Italian and Spanish. Paragraphs (3) to (7) provide, inter alia, that the applicant must indicate, in his application, a "second language", which must be a language of the Office; that if the application was filed in a language other than the languages of the Office, the Office may use that second language in its written communications to the applicant; and, finally, that the applicant is deemed to accept the second language as language of the proceedings for any opposition, revocation or invalidity proceedings.

Facts and procedure

3 The applicant, a Dutch-speaker, is by profession a lawyer and trade mark agent. She has financial interests in a patent bureau in the Netherlands.

4 By application lodged at the Registry of the Court of First Instance on 15 March 1994, the applicant brought the present action against Article 115(2) of Regulation No 40/94.

5 By documents lodged at the Court Registry on 8 April 1994 and 19 May 1994 respectively, the Commission and the Council raised an objection of inadmissibility. The applicant lodged her observations on that objection at the Registry on 24 June 1994.

6 By order of 14 September 1994, the Kingdom of Spain was granted leave to intervene in support of the form of order sought by the Council and the Commission. The Kingdom of Spain lodged its statement in intervention at the Registry on 25 October 1994. The applicant lodged her observations on that statement at the Registry on 12 December 1994.

Forms of order sought

7 In her application, the applicant claims that the Court should:

° cause the Council to revise its decision to exclude Dutch from the languages of the Office;

° not adopt, or not cause to be adopted, the measures enabling the Office to begin its work until the Council has revised its decision to exclude Dutch from the languages of the Office.

8 The Commission contends that the Court should:

° rule on the admissibility of the application without examining the substance of the case;

° declare the action inadmissible in its entirety or, in the alternative, in so far as it is directed against the Commission;

° order the applicant to bear the costs.

9 The Council contends that the Court should:

° declare the application inadmissible;

° order the applicant to bear the costs.

10 In her observations on the objection of inadmissibility, the applicant claims that the Court should:

° annul Article 115 of Regulation No 40/94;

° declare illegal the implementing measures of the Council and the Commission arising out of the establishment of the Office;

° order the defendants to bear the costs.

11 The Kingdom of Spain contends that the Court should:

° declare the application inadmissible;

° order the applicant to bear the costs.

12 In her observations on the statement in intervention, the applicant claims that the Court should:

° declare the application admissible;

° order the intervener to pay the costs of the intervention.

Law

Admissibility

Arguments of the parties

13 In their objections of inadmissibility, the Commission and the Council maintain, principally, that the Court of First Instance has no jurisdiction to grant the forms of order sought by the applicant, as formulated in the application. By claiming that the Court should "cause the Council to revise its decision" and "not adopt, or not cause to be adopted, the measures enabling the Office to begin its work until the Council has revised its decision", the applicant is asking the Court to direct the Council to modify its legislation, whereas the Community judicature may only review the legality of measures already in force, without ruling on future legislative measures.

14 The Commission and the Council stress, however, in the alternative, that the application would still be inadmissible even if the Court were to reclassify the application by interpreting the form of order sought by the applicant as a claim for the annulment of a measure under Article 173 of the EC Treaty.

15 The Commission points out that such a claim for annulment would concern only Council Regulation No 40/94 and thus would in no way relate to any act of the Commission.

16 The Council maintains that the criteria for admissibility set out in the fourth paragraph of Article 173 of the EC Treaty are not met, since the contested measure is legislative by nature and is of neither direct nor individual concern to the applicant. It refers more particularly to the second recital in the preamble to Regulation No 40/94, stating that the purpose of the regulation is "the creation of Community arrangements for trade marks whereby undertakings can by means of one procedural system obtain Community trade marks to which uniform protection is given and which produce their effects throughout the entire area of the Community". It concludes from that recital that the regulation applies to traders generally and therefore cannot be made the subject of annulment proceedings based on the fourth paragraph of Article 173 of the EC Treaty (Joined Cases 16 and 17/62 Producteurs de Fruits v Council [1962] ECR 471, at p. 478-479; Joined Cases C-15/91 and C-108/91 Buckl v Commission [1992] ECR I-6099, paragraph 24; and Case T-463/93 Guna v Council [1993] ECR II-1205, paragraph 17).

17 In addition, the Council stresses that the applicant is a "trade mark agent" ("merkgemachtigde" in Dutch) who represents undertakings seeking to acquire a Community trade mark and is thus not an applicant for Community trade marks on her own account. Article 115 of Regulation No 40/94, however, applies only to applicants for a Community trade mark. That provision therefore concerns the applicant only in an indirect manner.

18 Finally, the Council argues that the contested provision is not of individual concern to the applicant, since she is affected by the measure in the same way as any other trade mark agent and thus cannot in any way rely on "certain qualities which are peculiar" to her or on "circumstances in which [she] is differentiated from all other persons" (Case C-152/88 Sofrimport v Commission [1990] ECR I-2477).

19 In its statement in intervention, the Kingdom of Spain submits, first of all, that the Court has no jurisdiction to "cause the Council to revise its decision". It further states that the claim that the Court should "not adopt, or not cause to be adopted, the measures enabling the Office to begin its work until the Council has revised its decision" must be interpreted as an application for interim measures under Article 185 of the EC Treaty. It considers that such an application is also inadmissible, because the applicant has not provided any evidence either of a risk of damage or of such urgency as might justify suspending the operation of the contested measure.

20 In the alternative, if that claim were to be interpreted as a claim for annulment, the intervener adds that it is still inadmissible because the applicant does not meet the conditions laid down in the fourth paragraph of Article 173 of the EC Treaty.

21 In her observations on the objection of inadmissibility, the applicant stresses, first, that the purpose of her action has always been the annulment of Article 115 of Regulation No 40/94. She therefore asks the Court to interpret her application accordingly.

22 The applicant acknowledges that a claim for the annulment of the said article can be brought only against the Council, but submits that the Commission is under an obligation to ensure the implementation of the provision and that the Community judicature may review the legality of implementing measures. She accordingly asks the Court to "declare illegal or invalid the implementing measures already taken and remaining to be taken".

23 As regards the conditions set out in Article 173 of the EC Treaty, the applicant maintains that the regulation is of direct and individual concern to her, even though it cannot be denied that it concerns indeterminate categories of persons and applies to objectively defined situations.

24 In order to establish that she is directly concerned, the applicant refers, inter alia, to the non-pecuniary interest which she derives from her reputation in the field of trade-mark law and to the commercial interest which she has a result of her rights in a trade mark bureau in the Netherlands. Because of the high costs arising out of the need either to provide translations or to work in a language other than her own, the language regime set up by Article 115 of Regulation No 40/94 places her in fact and at present at a competitive disadvantage compared with her competitors working in one of the languages of the Office.

25 The applicant stresses that she is not acting as a representative of a professional group or of undertakings wishing to obtain a Community trade mark, still less as a representative of the whole body of trade mark agents, since the purpose of her application is specifically to bring to an end the discrimination set up by Article 115 of Regulation No 40/94 within that group. She considers that her non-pecuniary and commercial interests distinguish her from all other trade mark agents and that she is thus individually affected by the contested measure.

26 In her observations on the statement in intervention of the Kingdom of Spain, the applicant states that Article 115 of Regulation No 40/94 will cause and has already caused her to lose clients; this constitutes "serious, immediate and irreparable harm", making it urgent that an interim measure such as the suspension of the initial work of the Office should be adopted.

27 Finally, the applicant refers to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, giving her the right to a fair examination of the merits of her case, an outcome which cannot be achieved by any form of action other than that which she has brought.

Findings of the Court

28 Under Article 111 of the Rules of Procedure, where an action is manifestly inadmissible, the Court may, by reasoned order, give a decision without taking further steps in the proceedings. In the present case, the Court considers that it has sufficient information from the documents before it and that no further steps need be taken in the proceedings.

29 Article 44(1) of the Rules of Procedure provides that the application must state, inter alia, the subject-matter of the proceedings. It is clear from the case-law of the Court of Justice (see, for example, Case 168/78 Commission v France [1980] ECR 347, paragraphs 17 to 23) that it is for the Court to determine the subject-matter where it is interpreted differently by the defendant and by the applicant.

30 In the present case, the Court notes first that there is a discrepancy between the terms in which the first form of order sought in the application is expressed and the general tenor of the application. The applicant claims that the Court should "cause the Council to revise its decision to exclude Dutch from the languages of the Office" but then goes on to put forward pleas in law and arguments seeking to establish the unlawfulness of that exclusion. Thus, even though the wording of the forms of order sought in the application seems to call on the Court to make an order against the Council, those forms of order must nevertheless be considered, in the light of the content of the applicant' s arguments in support, as seeking in fact the annulment of Article 115 of Regulation No 40/94.

31 That interpretation of the application is borne out by the fact that the applicant stresses at the end of her application that she is "individually and directly affected" by the Council' s measure, thus referring, implicitly but clearly, to the fourth paragraph of Article 173 of the EC Treaty.

32 It follows that the first form of order sought in the application concerns, in substance, the annulment of Article 115 of Regulation No 40/94 in so far as that article excludes Dutch as a language of the Office.

33 To that extent, the application is directed against a measure emanating from the Council alone. In so far as it is directed against the Commission, the application is therefore devoid of any purpose and must thus, to that extent, be declared inadmissible.

34 Furthermore, even on the assumption that an applicant might, when submitting observations on an objection of inadmissibility, extend the subject-matter of the proceedings to include measures implementing the contested measure, it is important to note in the present case that the applicant has not identified the "implementing measures already taken" with which her action is concerned; nor is it for the Court to review hypothetical measures, such as "implementing measures remaining to be taken".

35 In so far as the action for annulment is directed against the Council, it must be borne in mind that, by virtue of the fourth paragraph of Article 173 of the EC Treaty, the admissibility of annulment proceedings brought by a natural or legal person against a regulation is subject to the condition that the regulation challenged must be, in reality, a decision of direct and individual concern to the applicant, and that the criterion distinguishing a regulation from a decision must be sought in the general application, or otherwise, of the measure in question (see, for example, Case C-168/93 Government of Gibraltar and Gibraltar Development Corporation v Council [1993] ECR I-4009; Case T-116/94 Cassa Nazionale di Previdenza et Assistenza a favore degli Avvocati ed Procuratori v Council [1995] ECR II-0000; and Case T-472/93 Campo Ebro Industrial and Others v Council [1995] ECR II-0000). A measure is of general application if it applies to objectively determined situations and produces its legal effects with respect to categories of persons envisaged in the abstract (see, for example, Case C-244/88 Usines Coopératives de Déshydratation du Vexin and Others v Commission [1989] ECR 3811 and Case C-229/88 Cargill and Others v Commission [1990] ECR I-1303).

36 In the present case, Regulation No 40/94 is clearly intended to establish a single procedural system whereby undertakings can obtain a Community trade mark. As part of that single system, the language regime set up by Article 115 produces legal effects with respect to a category of persons envisaged in the abstract, namely persons seeking to obtain a Community trade mark on their own behalf or on behalf of their principals. The applicant is therefore affected by the contested measure solely in her objective capacity as a trade mark agent, in the same way as any other trade mark agent who is, or might be in the future, in the same situation with regard to the language used until now in his or her professional activity (see, for example, in comparable situations, Case 231/82 Spijker v Commission [1983] ECR 2559, paragraph 9; Case T-469/93 GUNA v Council [1993] ECR II-1205, paragraph 17; and Case T-117/94 Associazione Agricoltori della Provincia di Rovigo v Commission [1995] ECR II-0000).

37 The application for the annulment of Regulation No 40/94 is therefore inadmissible.

38 The applicant' s second head of claim, in which she requests the Court not to adopt or not to cause to be adopted the measures enabling the Office to begin its work, must be interpreted as seeking either a direction to be issued by the Court to the Council or, pursuant to Article 185 of the EC Treaty, suspension of the operation of Article 115 of Regulation No 40/94. In that regard, it must be borne in mind that it is not for the Community judicature to issue directions to institutions (see, for example, Case T-56/92 Koelman v Commission [1993] ECR II-1267, paragraph 18) and that Article 104(3) of the Rules of Procedure requires that an application for suspension of operation of a measure be made by a separate document, which is not the case here. That part of the application must therefore be dismissed as inadmissible.

39 Nor, furthermore, may the applicant rely in the present case on Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which is recognized by the Community judicature in the Community legal order (see Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18, and Case T-535/93 F v Council [1995] ECR II-0000) but which does not require to be applied in a situation such as that in the present case. That article, which guarantees a fair trial for all persons, cannot preclude certain criteria regarding admissibility from being set for the institution of proceedings (see, in that regard, Case 257/85 Dufay v Parliament [1987] ECR 1561, paragraph 10).

40 It follows from all the foregoing that the application is manifestly inadmissible in its entirety.

Costs

41 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party' s pleadings. Since the applicant has been unsuccessful, she must be ordered to bear her own costs, together with those of the Council and the Commission.

42 The Kingdom of Spain, which intervened in support of the Council and the Commission, must be ordered to bear its own costs in accordance with Article 87(4) of the Rules of Procedure.

On those grounds,

THE COURT OF FIRST INSTANCE (First Chamber)

hereby orders:

1. The application is dismissed as inadmissible.

2. The applicant shall bear her own costs, together with those of the Council and the Commission. The intervener shall bear its own costs.

Luxembourg, 19 June 1995.