ORDER OF THE GENERAL COURT (Seventh Chamber)
21 March 2011 (*)
(Community trade mark – Representation of the applicant by a lawyer who is not a third party – Inadmissibility)
In Case T‑175/10,
Milux Holding SA, established in Luxembourg (Luxembourg), represented by J. Bojs, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by P. Geroulakos, acting as Agent,
defendant,
ACTION against the decision of the Fourth Board of Appeal of OHIM of 2 February 2010 (Case R 1116/2009-4), concerning the application for registration of the word sign FERTILITYINVIVO as a Community trade mark,
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich (Rapporteur), President, I. Wiszniewska-Białecka and M. Prek, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Registry of the General Court on 15 April 2010,
having regard to the response lodged at the Court Registry on 15 July 2010,
having regard to the reply lodged at the Court Registry on 20 September 2010,
having regard to the written question put to the parties by the General Court,
having regard to the observations lodged by the parties at the Court Registry on 12 and 22 November 2010,
makes the following
Order
Facts and procedure
1 The present action, brought on behalf of the applicant, Milux Holding SA, by Mr Johan Bojs, in his capacity as a lawyer, is directed against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 2 February 2010 (Case R 1116/2009‑4), concerning the application for registration of the word sign FERTILITYINVIVO as a Community trade mark.
2 The applicant submitted before the General Court an extract from the Commercial and Companies Register of the Grand Duchy of Luxembourg dated 5 February 2009 and showing that Mr Bojs was also one of its Category B directors. According to the same extract, the applicant ‘is bound both by the joint signatures of a Category A director and a Category B director and by the individual signature of the person delegated for that purpose by the Board of Directors’. The applicant’s Board of Directors, also according to that extract, consists of three Category A directors and two Category B directors.
3 By letter from the Court Registry of 8 November 2010, the parties were requested to submit their observations on the procedural regularity of the application and, consequently, on the admissibility of the action in the light, first, of the third and fourth paragraphs of Article 19 and the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union; secondly, of Article 43(1) of the Rules of Procedure of the General Court; thirdly, of the orders in Case C‑174/96 P Lopes v Court of Justice [1996] ECR I‑6401 and of 29 September 2010 in Joined Cases C‑74/10 P and C‑75/10 P EREF v Commission, not published in the ECR; and, fourthly, of the orders in Case T‑79/99 Euro-Lex v OHIM (EU-LEX) [1999] ECR II‑3555 and Case T‑184/04 Sulvida v Commission [2005] ECR II‑85.
4 The applicant and OHIM submitted their observations within the period set by the Court.
5 Following a change in the composition of the Chambers of the General Court, the case was assigned to the Seventh Chamber.
Forms of order sought
6 In its application, the applicant claims that the Court should:
– annul the contested decision;
– order OHIM to pay the costs.
7 In its response, OHIM contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
8 In its observations on the written question put by the Court, the applicant submits that the Court should accept Mr Bojs as its lawyer.
9 OHIM expresses the view, in its observations on that question, that the action must be dismissed as being manifestly inadmissible.
Law
10 Under Article 113 of the Rules of Procedure, the General Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action. That decision is to be given in accordance with Article 114(3) and (4) of those Rules.
11 Under Article 114(3) of the Rules of Procedure, the remainder of the proceedings is to be oral unless the General Court decides otherwise. In the present case, the General Court finds that it has sufficient information from the documents in the file and that there is no need to open the oral procedure.
Arguments of the parties
12 The applicant points out that it follows from the Commercial and Companies Register of the Grand Duchy of Luxembourg, first, that it has three Category A directors and two Category B directors and, secondly, that it is bound by the joint signatures of a Category A director and a Category B director. It thus submits that, although its lawyer is a Category B director, he may bind it only by acting jointly with one of the three Category A directors.
13 The applicant takes the view that its lawyer cannot be identified with it because, first, he is only one of its five directors, secondly, he can bind it only in conjunction with one of the Category A directors and, thirdly, it is a company established in Luxembourg under Luxembourg law, whereas its lawyer is an independent lawyer who is authorised to act independently before courts under Swedish law.
14 OHIM submits that the action is inadmissible because the lawyer who signed the application cannot represent the applicant in the present case before the General Court.
Findings of the Court
15 The first, third and fourth paragraphs of Article 19 of the Statute of the Court of Justice, which applies to the General Court pursuant to Article 53 thereof, state:
‘The Member States and the institutions of the Union shall be represented before the Court of Justice by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer.
…
Other 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.’
16 The first paragraph of Article 21 of the Statute of the Court of Justice provides as follows:
‘A case shall be brought before the Court of Justice 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 …’
17 The first subparagraph of Article 43(1) of the Rules of Procedure of the General Court provides:
‘The original of every pleading must be signed by the party’s agent or lawyer.’
18 According to settled case-law, it is apparent from the abovementioned 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 General Court, a ‘party’ within the meaning of that article is not authorised 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 Agreement on the European Economic Area (order in Lopes v Court of Justice, cited in paragraph 3 above, paragraph 11; orders in EU-LEX, cited in paragraph 3 above, paragraph 27; Sulvida v Commission, cited in paragraph 3 above, paragraph 8; and order of 19 November 2009 in Case T‑40/08 EREF v Commission, not published in the ECR, paragraph 25).
19 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 European Union legal order, as is demonstrated by, precisely, Article 19 of the Statute of the Court of Justice (orders in EU-LEX, cited in paragraph 3 above, paragraph 28; Sulvida v Commission, cited in paragraph 3 above, paragraph 9; and in Case T‑40/08 EREF v Commission, cited in paragraph 18 above, paragraph 26).
20 Mr Bojs, the lawyer representing the applicant, cannot be considered, for the purposes of the present case, to be a ‘third party’ within the meaning of the order in Lopes v Court of Justice, cited in paragraph 3 above, who is independent of the applicant. He is one of the applicant’s directors. He is thus a part of the applicant’s governing body, namely the board of directors. Furthermore, in order for the applicant to be bound, the signature of Mr Bojs or of the other Category B director is required in addition to that of a Category A director.
21 The arguments put forward by the applicant do not serve to preclude such an interpretation. First, the applicant cannot validly argue that its lawyer is merely one of its five directors. The fact that a party has several directors does not preclude the view that none of those directors can be regarded as a ‘third party’ (see, to that effect, the order in EU-LEX, cited in paragraph 3 above, paragraph 29).
22 Secondly, as regards the applicant’s argument that its lawyer cannot bind it on his own, but only in conjunction with one of the Category A directors, it is necessary to point out the following.
23 In a case where a number of members of the governing body of a company must act jointly in order to bind that company, it cannot be accepted that each of the members of that governing body is to be regarded as a ‘third party’ who is independent of that company.
24 Furthermore, it must be pointed out that it follows from the order in Joined Cases C‑74/10 P and C‑75/10 P EREF v Commission, cited in paragraph 3 above (paragraphs 50 and 51), that a person who occupies a position at a high executive level within an association (and, by analogy, a company) cannot act as its legal representative before the Courts of the European Union as an independent third party.
25 In the present case, Mr Bojs has been granted extensive administrative powers within the applicant as a result, first, of the fact that he is a member of its board of directors and, secondly, of the fact that, in order for the applicant to be bound, the signature of Mr Bojs or of the other Category B director is required in addition to that of a Category A director.
26 Mr Bojs thus occupies a position at a high executive level within the applicant.
27 Thirdly, it is necessary to reject as irrelevant the applicant’s argument that its lawyer can only advise it as regards Swedish and European Union law, but that he may not function as its legal advisor as regards Luxembourg law, that is to say, as regards the law which is relevant in respect of its day-to-day business activities.
28 The fact that Mr Bojs cannot be regarded as a ‘third party’ in relation to the applicant follows from the position of director which he occupies within it. That fact is unconnected with the issue of whether or not Mr Bojs can advise the applicant with regard to Luxembourg law.
29 For the same reason, the applicant’s submission that a lawyer in Sweden enjoys legal professional privilege is irrelevant. That has no bearing on the fact that Mr Bojs occupies the position of director within the applicant and cannot therefore be regarded as a ‘third party’ in relation to it.
30 Lastly, it is necessary to reject as irrelevant the applicant’s argument that the appointment of Mr Bojs as director is attributable to the fact that he is the legal advisor to one of its shareholders, with the result that that appointment fulfils ‘only a formal’ function.
31 The reasons which led to the appointment of Mr Bojs as one of the applicant’s directors are not capable of calling into question the powers which are attached to that function, inter alia the power to bind the applicant by means of his signature in conjunction with that of a Category A director.
32 It follows from all of the foregoing that, as the application initiating proceedings was signed by Mr Bojs, the present action has not been brought in accordance with the third and fourth paragraphs of Article 19 and the first paragraph of Article 21 of the Statute of the Court of Justice, and with the first subparagraph of Article 43(1) of the Rules of Procedure of the General Court.
33 Consequently, the action must be dismissed as inadmissible.
Costs
34 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, and OHIM has applied for costs, the applicant must be ordered to pay the costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. Milux Holding SA is ordered to pay the costs.
Luxembourg, 21 March 2011.