ORDER OF THE GENERAL COURT (Fifth Chamber)
7 December 2021 (*)
(Action for annulment – EU trade mark – Lack of representation by a lawyer authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement – Manifest inadmissibility)
In Case T‑422/21,
Daimler AG, established in Stuttgart (Germany),
applicant,
v
European Union Intellectual Property Office (EUIPO),
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Volkswagen AG, established in Wolfsburg (Germany),
ACTION brought against the decision of the First Board of Appeal of EUIPO of 7 May 2021 (Case R 734/2020‑1), relating to opposition proceedings between Daimler and Volkswagen,
THE GENERAL COURT (Fifth Chamber),
composed of D. Spielmann (Rapporteur), President, R. Mastroianni and M. Brkan, Judges,
Registrar: E. Coulon,
makes the following
Order
Legal context
1 On 1 February 2020, the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p. 7; ‘the withdrawal agreement’) entered into force in accordance with Article 185 of that agreement. Article 126 of that agreement provides for a transition period, which ended on 31 December 2020, during which European Union law was applicable to the United Kingdom of Great Britain and Northern Ireland, unless otherwise provided for in that agreement. Consequently, since 1 February 2020, the United Kingdom has no longer been a member of the European Union.
2 Article 91 of the withdrawal agreement, which is entitled ‘Representation before the Court’, provides in paragraphs 1 and 2 thereof:
‘1. Without prejudice to Article 88, where, before the end of the transition period, a lawyer authorised to practise before the courts or tribunals of the United Kingdom represented or assisted a party in proceedings before the Court of Justice of the European Union or in relation to requests for preliminary rulings made before the end of the transition period, that lawyer may continue to represent or assist that party in those proceedings or in relation to those requests. This right shall apply to all stages of proceedings, including appeal proceedings before the Court of Justice and proceedings before the General Court after a case has been referred back to it.
2. Without prejudice to Article 88, lawyers authorised to practise before the courts or tribunals of the United Kingdom may represent or assist a party before the Court of Justice of the European Union in the cases referred to in Article 87 and Article 95(3). Lawyers authorised to practise before the courts or tribunals of the United Kingdom may also represent or assist the United Kingdom in the proceedings covered by Article 90 in which the United Kingdom has decided to intervene or participate.’
3 Article 87 of the withdrawal agreement, which is entitled ‘New cases before the Court of Justice’, provides in paragraphs 1 and 2 thereof:
‘1. If the European Commission considers that the United Kingdom has failed to fulfil an obligation under the Treaties or under Part Four of this Agreement before the end of the transition period, the European Commission may, within 4 years after the end of the transition period, bring the matter before the Court of Justice of the European Union in accordance with the requirements laid down in Article 258 TFEU or the second subparagraph of Article 108(2) TFEU, as the case may be. The Court of Justice of the European Union shall have jurisdiction over such cases.
2. If the United Kingdom does not comply with a decision referred to in Article 95(1) of this Agreement, or fails to give legal effect in the United Kingdom’s legal order to a decision, as referred to in that provision, that was addressed to a natural or legal person residing or established in the United Kingdom, the European Commission may, within 4 years from the date of the decision concerned, bring the matter to the Court of Justice of the European Union in accordance with the requirements laid down in Article 258 TFEU or the second subparagraph of Article 108(2) TFEU, as the case may be. The Court of Justice of the European Union shall have jurisdiction over such cases.’
4 Article 95 of the withdrawal agreement, which is entitled ‘Binding force and enforceability of decisions’, provides in paragraphs 1 and 3 thereof:
‘1. Decisions adopted by institutions, bodies, offices and agencies of the Union before the end of the transition period, or adopted in the procedures referred to in Articles 92 and 93 after the end of the transition period, and addressed to the United Kingdom or to natural and legal persons residing or established in the United Kingdom, shall be binding on and in the United Kingdom.
…
3. The legality of a decision referred to in paragraph 1 of this Article shall be reviewed exclusively by the Court of Justice of the European Union in accordance with Article 263 TFEU.’
5 Article 92 of the withdrawal agreement, which is entitled ‘Ongoing administrative procedures’, provides in paragraph 1 thereof:
‘1. The institutions, bodies, offices and agencies of the Union shall continue to be competent for administrative procedures which were initiated before the end of the transition period concerning:
(a) compliance with Union law by the United Kingdom, or by natural or legal persons residing or established in the United Kingdom; or
(b) compliance with Union law relating to competition in the United Kingdom.’
6 Article 93 of the withdrawal agreement, which is entitled ‘New State aid and European Anti-Fraud Office procedures’, provides:
‘1. In respect of aid granted before the end of the transition period, for a period of 4 years after the end of the transition period, the European Commission shall be competent to initiate new administrative procedures on State aid governed by [Council] Regulation (EU) 2015/1589 [of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9)] concerning the United Kingdom.
The European Commission shall continue to be competent after the end of the 4-year period for procedures initiated before the end of that period.
Article 92(5) of this Agreement shall apply mutatis mutandis.
The European Commission shall inform the United Kingdom of any new administrative proceedings on State aid initiated under the first subparagraph of this paragraph within 3 months of initiating it.
2. Without prejudice to Articles 136 and 138 of this Agreement, for a period of 4 years after the end of the transition period, the European Anti-Fraud Office (OLAF) shall be competent to initiate new investigations governed by Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council [of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1)] in respect of:
(a) facts that occurred before the end of the transition period; or
(b) any customs debt arising after the end of the transition period from the discharge procedures referred to in Article 49(1) of this Agreement.
OLAF shall continue to be competent after the end of the 4-year period for procedures initiated before the end of that period.
OLAF shall inform the United Kingdom of any new investigation initiated under the first subparagraph of this paragraph within 3 months of initiating that investigation.’
7 Article 97 of the withdrawal agreement, which is entitled ‘Representation in ongoing proceedings before the European Union Intellectual Property Office’, provides:
‘Where, before the end of the transition period, a person who is authorised to represent a natural or legal person before the European Union Intellectual Property Office in accordance with Union law was representing a party in a procedure brought before that Office, that representative may continue to represent that party in that procedure. This right shall apply to all stages of the procedure before that Office.
When representing a party before the European Union Intellectual Property Office in the proceedings referred to in the first subparagraph, such representative shall in every respect be treated as a professional representative authorised to represent a natural or legal person before the European Union Intellectual Property Office in accordance with Union law.’
Facts and procedure
8 By application lodged at the Court Registry on 12 July 2021, the applicant, Daimler AG, brought an action against the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 7 May 2021 (Case R 734/2020‑1), relating to opposition proceedings between it and Volkswagen AG.
9 In the application, the applicant stated that it was represented by Mr D. Moore, ‘patent attorney litigator’, and by Mr D. Ivison and Ms K. Nezami, Barristers.
10 On 19 July 2021, the Court requested that the applicant regularise the application, inter alia by producing certificates that Mr Ivison and Ms Nezami were 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.
11 On 31 August 2021, the applicant produced two practising certificates issued by the General Council of the Bar of England and Wales (United Kingdom), according to which Mr Ivison and Ms Nezami possess the title of ‘barrister’ and are authorised to practise before every court in relation to all proceedings.
Law
12 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.
13 In the present case, the Court, considering that it has sufficient information from the documents in the file, has decided, pursuant to that provision, to give a decision without taking further steps in the proceedings.
14 The fourth paragraph of Article 19 of the Statute of the Court of Justice of the European Union, which is applicable to the procedure before the General Court pursuant to Article 53 of that statute, provides that only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement may represent or assist a party before the Courts of the European Union.
15 Thus, according to settled case-law, it is clear from that article that two cumulative conditions must be satisfied 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 (see, to that effect, 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).
16 It should be noted at the outset that a ‘patent attorney litigator’, such as Mr Moore, is not a lawyer within the meaning of Article 19 of the Statute of the Court of Justice of the European Union and, accordingly, is not authorised to represent a party before the General Court (order of 20 October 2008, Imperial Chemical Industries v OHIM (FACTORY FINISH), T‑487/07, not published, EU:T:2008:453, paragraph 22).
17 Furthermore, it is common ground that the applicant has established that Mr Ivison and Ms Nezami are authorised to practise before the courts or tribunals of the United Kingdom. However, it has not established that they are also authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement.
18 Since the entry into force of the withdrawal agreement, the various situations in which a lawyer who is authorised to practise before the courts or tribunals of the United Kingdom may represent or assist a party before the Courts of the European Union are set out in Article 91(1) and (2) of that agreement.
19 In the present case, first, the application was lodged on 12 July 2021, that is to say, after the end of the transition period. Consequently, the action is not covered by the situations referred to in Article 91(1) of the withdrawal agreement, which concerns proceedings that were pending before the Courts of the European Union before the end of the transition period.
20 Secondly, the present action was brought pursuant to Article 72 of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1). Consequently, it is not covered by one of the situations provided for in Article 87 of the withdrawal agreement, to which Article 91(2) of that agreement refers and which specifically refers to proceedings for failure to fulfil obligations under Article 108(2) TFEU and Article 258 TFEU which are brought by the European Commission against the United Kingdom.
21 Thirdly, since the contested decision was adopted on 7 May 2021, that is to say, after the end of the transition period, the action is not covered by the situation referred to in the first part of Article 95(1) of the withdrawal agreement, to which Article 91(2) of that agreement indirectly refers and which concerns decisions adopted by institutions, bodies, offices and agencies of the European Union before the end of that period.
22 Fourthly, the present action, since it seeks the annulment of a decision of a Board of Appeal of EUIPO, is covered neither by the situations referred to in Article 92(1) of the withdrawal agreement, to which Article 91(2) of that agreement refers and which relates to administrative procedures concerning (i) compliance with European Union law by the United Kingdom or by natural or legal persons residing or established in the United Kingdom and (ii) compliance with European Union law relating to competition in the United Kingdom, nor by the situations provided for in Article 93 of that agreement, to which Article 91(2) of that agreement also relates and which concerns State aid and European Anti-Fraud Office (OLAF) procedures.
23 Fifthly and lastly, the action is not covered by Article 97 of the withdrawal agreement, to which the applicant refers in the application, because that provision relates solely to representation in ongoing proceedings before EUIPO, and not before the General Court.
24 It follows from the foregoing that the present action is not covered by any of the situations provided for in the withdrawal agreement in which a lawyer who is authorised to practise before the courts or tribunals of the United Kingdom, with regard to whom it has not also been established that he or she is authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement, may represent or assist a party before the Courts of the European Union.
25 Consequently, the application does not satisfy the conditions laid down in the fourth paragraph of Article 19 of the Statute of the Court of Justice of the European Union, with the result that the action must be dismissed as being manifestly inadmissible, without it being necessary to serve it on EUIPO and on the other party to the proceedings before EUIPO.
Costs
26 Since the present order has been made before service of the application on EUIPO and on the other party to the proceedings before EUIPO and before they could have incurred any costs, it is sufficient to decide, pursuant to Article 133 of the Rules of Procedure, that the applicant must bear its own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. The action is dismissed as manifestly inadmissible.
2. Daimler AG shall bear its own costs.
Luxembourg, 7 December 2021.