ORDER OF THE COURT (Seventh Chamber)
11 May 2017 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Application for registration of the word mark neonart — Application lodged with General Court of the European Union signed by a ‘lawyer’ — Manifest inadmissibility — Article 19 of the Statute of the Court of Justice of the European Union — No representation by a lawyer — Appeal manifestly unfounded)
In Case C-22/17 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 16 January 2017,
Neonart svetlobni in reklamni napisi Krevh d.o.o., established in Maribor (Slovenia), represented by J. Marn,
the other party to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
THE COURT (Seventh Chamber),
composed of A. Prechal, President of the Chamber, C. Toader and E. Jarašiūnas (Rapporteur), Judges,
Advocate General: E. Tanchev,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
1 By its appeal, Neonart svetlobni in reklamni napisi Krevh d.o.o. seeks to have set aside the order of the General Court of the European Union of 14 November 2016, Neonart svetlobni in reklamni napisi Krevh v EUIPO (neonart) (T-221/16, not published, ‘the order under appeal’, EU:T:2016:673), by which that court dismissed as manifestly inadmissible its action for annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 25 January 2016 (Case R 1932/2015-2) concerning an application for registration of the word sign ‘neonart’ as an EU trade mark.
2 Neonart svetlobni in reklamni napisi Krevh also requests that the Court refer the case back to the General Court, in the event that the appeal is upheld, and order EUIPO to pay the costs.
3 In support of its appeal, the appellant relies on a single ground of appeal, alleging infringement of Article 19 of the Statute of the Court of Justice of the European Union and of Article 45(4)(a) of the Rules of Procedure of the General Court.
4 Pursuant to Article 181 of its Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss the appeal in whole or in part.
5 It is appropriate to apply that provision to the present case.
6 On 6 April 2017, the Advocate General took the following position:
‘1. I propose that the Court should dismiss the appeal in the present case as manifestly unfounded and order the appellant to pay the costs, in accordance with Articles 137 and 184(1) of the Rules of Procedure of the Court of Justice, for the following reasons.
2. In support of its appeal, the appellant puts forward a single ground, alleging that the General Court infringed Article 19 of the Statute of the Court of Justice of the European Union (‘the Statute’) and Article 45(4)(a) of the Rules of Procedure of the General Court in concluding that its representative, Mr Marn, could not validly represent the appellant before the General Court. The General Court came to this conclusion on the ground that Mr Marn, not having been admitted to the Slovenian Bar, is not a lawyer for the purposes of Article 19 of the Statute.
3. The appellant submits that the General Court erred in law by applying the Slovenian version, instead of the English version, of Article 19 of the Statute to define the term ‘lawyer’, since English had been chosen as the language of the case before the General Court. The appellant also contends that the General Court should have applied national law to determine whether Mr Marn could validly represent a party in proceedings before the courts of a Member State. Furthermore, the appellant affirms that if Mr Marn is not a member of the Slovenian Bar, that is because it does not allow its members to practice at the Bar and at the same time be employed as university professors, as Mr Marn is, or advertise their business freely.
4. According to the Court’s settled case-law, it is clear from the fourth paragraph of Article 19 of the Statute that two cumulative conditions must be satisfied for a person to be validly permitted to represent parties, other than the Member States and the Union institutions, before the Courts of the European Union: first, that person must be a lawyer; and second, he or she must be authorised to practice before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) (see, to that effect, order of 17 July 2014, Brown Brothers Harriman v OHIM, C-101/4 P, not published, EU:C:2014:2115, paragraph 15 and case-law cited). With regard to the first of those conditions, 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; it is not sufficient that that person is entitled to represent parties in proceedings before the courts of a Member State (see, to that effect, order of 20 February 2008, Comunidad Autónoma de Valencia v Commission, C-363/06 P, not published, EU:C:2008:99, paragraphs 22 and 23, and order of 28 February 2005, Energy Technologies ET v OHIM — Aparellaje eléctrico(UNEX), T-445/04, EU:T:2005:70, paragraph 9).
5. In the present case, it is common ground that Mr Marn, who signed the application lodged with the General Court, is not a member of the Slovenian Bar. It follows from the Court’s case-law that even if, as the appellant asserts, Mr Marn has been awarded a law degree, has passed the State examination in law and is entitled to represent clients in various proceedings before the Slovenian courts, he cannot be regarded as a lawyer for the purposes of Article 19 of the Statute. Consequently, the General Court was correct to hold, in paragraph 8 of the order under appeal, that Mr Marn did not fulfil the first of the two cumulative conditions set out in the preceding paragraph and, therefore, was not authorised to represent the applicant before the General Court. Moreover, as the General Court was correct to find in paragraph 9 of the order under appeal, Mr Marn has not demonstrated that he is covered by the exception laid down in the seventh paragraph of Article 19 of the Statute for university teachers being nationals of a Member State whose law accords them a right of audience.
6. It is also well-established that the notion of lawyer, for the purposes of Article 19 of the Statute, must be interpreted, as far as possible, independently and without reference to national law (see, to that effect, judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej and Poland v Commission, C-422/11 P and C-423/11 P, EU:C:2012:553, paragraphs 34 and 35, and order of 20 October 2008, Imperial Chemicals Industries v OHIM (FACTORY FINISH),T-487/07, not published, EU:T:2008:453, paragraphs 20 and 21 and the case-law cited).
7. Lastly, as it is not disputed that the Republic of Slovenia is the pertinent jurisdiction with regard to the verification of Mr Marn’s legal credentials to represent the applicant before the General Court, that court did not err in law by seeking to establish whether Mr Marn could properly be described as ‘odvetnik’, the term which corresponds to ‘lawyer’ in the Slovenian version of Article 19 of the Statute.
8. Having regard to the foregoing, I am of the view that the appeal in the present case should be dismissed, in accordance with Article 181 of the Rules of Procedure of the Court of Justice, as manifestly unfounded, and that the appellant should be ordered to bear its own costs.’
7 For the same reasons as those given by the Advocate General, the appeal must be dismissed as, in any event, manifestly unfounded.
8 Under Article 137 of the Rules of Procedure of the Court, applicable to appeal proceedings by virtue of Article 184(1) of those Rules, a decision as to costs is to be given in the order which closes the proceedings. As the present order was adopted before the appeal was served on the defendant at first instance and, therefore, before the latter has incurred costs, Neonart svetlobni in reklamni napisi Krevh must be ordered to bear its own costs.
On those grounds, the Court (Seventh Chamber) hereby orders:
1. The appeal is dismissed.
2. Neonart svetlobni in reklamni napisi Krevh d.o.o. is to bear its own costs.
Luxembourg, 11 May 2017.
A. Calot Escobar
President of the Seventh Chamber
* Language of the case: English.