ORDER OF THE GENERAL COURT (Fifth Chamber)
5 July 2021(*)
(Action for annulment – Community design – No representation by a lawyer – Manifest inadmissibility)
In Case T‑191/21,
Svenska Metallkompaniet AB, established in Åkersberga (Sweden),
applicant,
v
European Union Intellectual Property Office (EUIPO),
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Otlav SpA, established in Santa Lucia di Piave (Italy),
ACTION brought against the decision of the Third Board of Appeal of EUIPO of 21 January 2021 (Case R 2486/2019-3), relating to invalidity proceedings between Otlav and Svenska Metallkompaniet,
THE GENERAL COURT (Fifth Chamber),
composed of D. Spielmann (Rapporteur), President, U. Öberg and R. Mastroianni, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts
1 By application lodged at the General Court Registry on 7 April 2021, the applicant, Svenska Metallkompaniet AB, brought an action against the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 January 2021 (Case R 2486/2019-3), relating to invalidity proceedings brought by Otlav SpA in respect of a Community design.
2 The application states that the applicant is represented by Mr Jukka Kivitie, who refers to himself as a ‘lawyer’.
3 On 22 April 2021, the Court requested that the applicant put its application in order on various points and, in particular, to produce a certificate that he is 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 (EEA), in accordance with Article 51(2) of its Rules of Procedure.
4 On 7 May 2021, Mr Kivitie submitted his reply to the General Court Registry and, inter alia, produced a certificate issued by a body known as the ‘Legal Counsel Board’, and not by the Suomen Asianajajaliitto (Bar Association of Finland; ‘the Bar of Finland’), certifying that he was a ‘licensed legal counsel’ and could, in that capacity, represent clients before certain national courts and tribunals.
Law
5 Under Article 126 of the Rules of Procedure, where an action brought before the Court is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
6 In the present case, the Court, considering that it has sufficient information from the documents before it, decides to give a decision without taking further steps in the proceedings.
7 According to the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the Court pursuant to Article 53 of that Statute, non-privileged parties must be represented before the Courts of the European Union by a lawyer, that is, in Finnish, by an ‘asianajaja’. According to the Finnish Law of 1958 on the Legal Profession, access to the profession of lawyer is conditional upon admission to the Bar of Finland.
8 According to settled case-law, it is clear from the fourth paragraph of Article 19 of the Statute of the Court of Justice of the European Union that two cumulative conditions must be met in order for a person to be validly permitted to represent parties, other than the Member States and the EU institutions, before the Courts of the European Union, namely, first, that person must be a lawyer and secondly, he or she must be authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement (orders of 11 May 2017, Neonart svetlobni in reklamni napisi Krevh v EUIPO, C‑22/17 P, not published, EU:C:2017:369, paragraphs 6 and 7, and of 12 June 2019, Saga Furs v EUIPO, C‑805/18 P, not published, EU:C:2019:488, paragraphs 5 and 6).
9 With regard to the first of those cumulative conditions, it also follows from the case-law that the person who signs the application must be a member of the Bar in order to be regarded as a lawyer for the purposes of Article 19 of the Statute of the Court of Justice of the European Union; it is not sufficient that that person is entitled to represent parties in proceedings before the courts of a Member State (orders of 11 May 2017, Neonart svetlobni in reklamni napisi Krevh v EUIPO, C‑22/17 P, not published, EU:C:2017:369, paragraphs 6 and 7, and of 12 June 2019, Saga Furs v EUIPO, C‑805/18 P, not published, EU:C:2019:488, paragraphs 5 and 6).
10 In that regard, it is also well-established that the concept of ‘lawyer’, within the meaning of Article 19, must be interpreted independently and without reference to national law (orders of 11 May 2017, Neonart svetlobni in reklamni napisi Krevh v EUIPO, C‑22/17 P, not published, EU:C:2017:369, paragraphs 6 and 7; of 12 June 2019, Saga Furs v EUIPO, C‑805/18 P, not published, EU:C:2019:488, paragraphs 5 and 6; and judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 57).
11 In the present case, it is common ground that Mr Kivitie, who signed the application lodged with the General Court, is not a member of the Bar of Finland. It follows from the case-law cited above that, even if, as the appellant contends, Mr Kivitie was granted authorisation to practise as a licenced legal counsel before all courts of law in Finland and to represent his clients before those courts, he cannot be regarded as a ‘lawyer’ (asianajaja) within the meaning of the Finnish version of Article 19 of the Statute of the Court of Justice of the European Union.
12 Accordingly, Mr Kivitie does not satisfy the first of the two cumulative conditions set out in paragraph 8 above and he was therefore not authorised to represent the applicant before the Court.
13 The applicant’s argument based on the judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA (C‑515/17 P and C‑561/17 P, EU:C:2020:73), according to which the Court of Justice recognised that licensed Polish legal counsel had the same rights of representation as lawyers, that is, members of the Bar, must be rejected. The licensed Polish legal counsel at issue in that case was a member of the Bar, which is not the case of the applicant’s representative here. Furthermore, as is clear from Article 1(2) of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (OJ 1977 L 78, p. 17), as amended by the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21), ‘lawyer’ means any person entitled to pursue his professional activities under the name ‘Asianajaja/Advokat’ in Finland, while both ‘Adwokat’ and ‘Radca prawny’ are referred to in the case of Poland in Directive 77/249, as amended by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 33).
14 It follows from the foregoing considerations that the present action must be dismissed as being manifestly inadmissible, and there is no need to serve it on EUIPO.
Costs
15 Since this order has been made before service of the application on EUIPO and before the latter could have incurred any costs, it is sufficient to decide that the applicant must bear its own costs, in accordance with Article 133 of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. The action is dismissed as being manifestly inadmissible.
2. Svenska Metallkompaniet AB shall bear its own costs.
Luxembourg, 5 July 2021.