Case T‑556/11

European Dynamics Luxembourg SA and Others

v

Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)

(Action for annulment and damages — Public service contracts — Objection of inadmissibility — Action for annulment — First and fifth paragraphs of Article 263 TFEU — Article 122 of Regulation (EC) No 207/2009 — Action not premature — Status of defendant — Jurisdiction of the General Court — Action for damages — Article 44(1)(c) of the Rules of Procedure of the General Court — Admissibility)

Summary — Order of the General Court (First Chamber), 12 September 2013

1.      EU law — Principles — Right to effective judicial protection — Applicability to measures adopted by agencies established on the basis of secondary law producing legal effects vis-à-vis third parties — Acts of the president of OHIM

(Art. 263, first para., TFEU)

2.      EU law — Principles — Right to effective judicial protection — Applicability to measures adopted by agencies established on the basis of secondary law producing legal effects vis-à-vis third parties — Acts of the president of OHIM — Scope of Article 122 of Regulation No 207/2009

(Art. 19(1) TEU; Art. 263, first and fourth paras, TFEU; Council Regulation No 207/2009, Art. 122)

3.      Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Action for compensation for damage allegedly caused by an EU institution

(Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c))

1.      See the text of the decision.

(see paras 50-52)

2.      Article 122(1) of Regulation No 207/2009 on the Community Trade Mark provides that ‘[t]he Commission shall check the legality of those acts of the President of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) in respect of which Community law does not provide for any check on legality by another body …’. The scope of that provision is thus expressly contingent on there being no check of the legality of acts of the President of OHIM by another body. The General Court, as a judicial body of the Court of Justice under the first sentence of Article 19(1) TEU is ‘another body’, as it reviews the legality of acts in accordance with the second sentence of the first paragraph of Article 263 TFEU.

It follows that an act of the president of OHIM does not fall within the scope of Article 122 of Regulation No 207/2009 and that, therefore, inter alia, the second sentence of the third paragraph of that article, according to which ‘[r]eferral shall be made to the Commission within one month of the day on which the party concerned first became aware of the act in question’ is not applicable. Accordingly, OHIM cannot successfully argue that the referral to the Commission of a complaint against an act of the President of OHIM, or the completion of an administrative procedure to that end, or any express or implied decision of the Commission concerning that complaint, is a mandatory precondition — or perquisite for admissibility — for an action brought before the EU Courts against such an act pursuant to the second sentence of the first paragraph or the fourth paragraph of Article 263 TFEU.

That assessment is confirmed by a teleological interpretation of Article 122 of Regulation No 207/2009. When the rules of primary law governing the system of judicial protection of the Treaty still suffered from a lacuna concerning acts of EU bodies or agencies, recognition of the Commission’s role in reviewing lawfulness, such as that provided for in Article 122 of that same regulation, addressed the need perceived by the EU legislature to have a decision of the Commission in order to make acts adopted by EU bodies or agencies at least indirectly reviewable before the EU Courts. Thus, the wording ‘acts … in respect of which Community law does not provide for any check on legality by another body’ confirms that the Commission was to be given a residual, subsidiary power of review in order to ensure access to the EU Courts, at least through an express or implied decision of the Commission for the purposes of the third and fourth sentences of Article 122(3) of Trade mark Regulation No 207/2009. However, at the latest when the second sentence of the first paragraph of Article 263 TFEU entered into force, that objective lost its purpose and cannot now serve as a basis for alleging that the procedure under Article 122 of that regulation is a mandatory step before proceedings may be brought before the EU Courts.

(see paras 54-56)

3.      See the text of the decision.

(see para. 71)