Corte di giustizia UE n. 1740/2014

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 17 July 2014 ( * ) (Appeal — Application before the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] signed by a ‘juris kandidat’ — No representation by a lawyer — [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA] — Manifest inadmissibility of the action) [OSCURATO:PERSONA] C‑101/14 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 20 February 2014, [OSCURATO:PERSONA] & Co., established in [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), represented by P. Leander and T. [OSCURATO:PERSONA], advokater, appellant, the other party to the proceedings being: Office for Harmonisation in the [OSCURATO:PERSONA] ([OSCURATO:PERSONA] and Designs) (OHIM), defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of M. Ilešič (Rapporteur), President of the [OSCURATO:PERSONA], C.G. Fernlund, A. Ó Caoimh, C. Toader and E. Jarašiūnas, [OSCURATO:PERSONA], [OSCURATO:PERSONA]: P. Mengozzi, Registrar: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to proceed by reasoned order, in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1 By its appeal, [OSCURATO:PERSONA] & Co. asks the [OSCURATO:PERSONA] to set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] v OHIM ( [OSCURATO:PERSONA] ), T‑389/13, EU:T:2013:691 (‘the order under appeal’), whereby the [OSCURATO:PERSONA] dismissed as being manifestly inadmissible its action against the decision of the [OSCURATO:PERSONA] of Appeal of the Office for Harmonisation in the [OSCURATO:PERSONA] ([OSCURATO:PERSONA] and Designs) (OHIM) of 25 April 2013 ([OSCURATO:PERSONA] R 1740/2012-1), concerning the international registration, designating the [OSCURATO:PERSONA], of the word mark [OSCURATO:PERSONA]. Legal context 2 [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], applicable to the procedure before the [OSCURATO:PERSONA] pursuant to [OSCURATO:PERSONA] 53 of the Statute, provides: ‘[OSCURATO:PERSONA] and the institutions of the [OSCURATO:PERSONA] shall be represented before the [OSCURATO:PERSONA] of Justice by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer. [OSCURATO:PERSONA], other than the [OSCURATO:PERSONA], which are parties to the Agreement on the [OSCURATO:PERSONA] [of 2 May 1992 (OJ 1994 L 1, p. 3, ‘the EEA Agreement’)] and also the EFTA [OSCURATO:PERSONA] referred to in that Agreement shall be represented in same manner. Other parties must be represented by a lawyer. Only a lawyer authorised to practise before a court of a [OSCURATO:PERSONA] or of another [OSCURATO:PERSONA] which is a party to the [EEA] Agreement … may represent or assist a party before the [OSCURATO:PERSONA]. …’ 3 The first subparagraph of [OSCURATO:PERSONA] 43(1) of the Rules of Procedure of the [OSCURATO:PERSONA] provides: ‘The original of every pleading must be signed by the party’s agent or lawyer.’ 4 [OSCURATO:PERSONA] 44(3) and (6) of those Rules of Procedure provide: ‘3.       The lawyer acting for a party must lodge at the Registry a certificate that he is authorised to practise before a [OSCURATO:PERSONA] of a [OSCURATO:PERSONA] or of another [OSCURATO:PERSONA] which is a party to the EEA Agreement. … 6.      If an application does not comply with the requirements set out in paragraphs 3 to 5 of this [OSCURATO:PERSONA], the Registrar shall prescribe a reasonable period within which the applicant is to comply with them whether by putting the application itself in order or by producing any of the above-mentioned documents. If the applicant fails to put the application in order or to produce the required documents within the time prescribed, the [OSCURATO:PERSONA] shall decide whether the non-compliance with these conditions renders the application formally inadmissible.’ The procedure before the [OSCURATO:PERSONA] and the order under appeal 5 The appellant brought its action by application lodged at the Registry of the [OSCURATO:PERSONA] on 22 July 2013. 6 That application stated that the appellant was represented by Mr T. [OSCURATO:PERSONA] and Mr A. [OSCURATO:PERSONA], who practise at the same law firm established in Stockholm (Sweden). 7 The application was signed by only one of the two representatives, namely [OSCURATO:PERSONA]. 8 On 8 August 2013, pursuant to [OSCURATO:PERSONA] 44(6) of its Rules of Procedure, the [OSCURATO:PERSONA] called on the applicant to put the action in order by asking it, in particular, to produce its lawyers’ certificates of authorisation to practise, as provided for in [OSCURATO:PERSONA] 44(3) of those rules. 9 On 15 August 2013, in response to that request, [OSCURATO:PERSONA] and [OSCURATO:PERSONA] asserted that they were authorised to practise as ‘lawyers’ and produced to that effect two certificates concerning them from the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]). 10 [OSCURATO:PERSONA], by the order under appeal, dismissed the action as being manifestly inadmissible. The reasons stated were as follows: ‘9      [OSCURATO:PERSONA], it must be held that, pursuant to the third paragraph of [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice …, parties other than the [OSCURATO:PERSONA] and institutions of the [OSCURATO:PERSONA] must be represented before the Courts of the [OSCURATO:PERSONA] by a lawyer, for which the term in Sweden is “advokat”. According to [OSCURATO:PERSONA] legislation, the title of “advokat” is reserved to persons who have a Master’s qualification in law and have been admitted to the Bar. 10      Moreover, it is clear from the fourth paragraph of [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice that two cumulative conditions must be satisfied in order for a person to be able to validly represent parties other than [OSCURATO:PERSONA] and institutions of the [OSCURATO:PERSONA] before the Courts of the [OSCURATO:PERSONA]; that person must be a lawyer (“advokat”, according to the [OSCURATO:PERSONA] version) and he must be authorised to practise before a court of a [OSCURATO:PERSONA] or of a [OSCURATO:PERSONA] which is party to the EEA Agreement. Those requirements are essential procedural requirements and failure to comply with them will result in the action being inadmissible. 11      The requirement imposed by [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice is based on a view 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 that cause, such legal assistance as the client needs. The counterpart of that protection lies in the rules of professional ethics and discipline which are laid down and enforced in the general interest by institutions endowed with the requisite powers for that purpose. Such a conception reflects the legal traditions common to the [OSCURATO:PERSONA] and is also to be found in the [OSCURATO:PERSONA] legal order, as is precisely demonstrated by [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice … 12      In that regard, one of the certificates from the [OSCURATO:PERSONA] … shows that Mr Z[o]morodian is a “juris kandidat” and that, although not a member of the [OSCURATO:PERSONA], he is authorised, according to [OSCURATO:PERSONA] law, to practise before the [OSCURATO:PERSONA] courts. 13      It also states that only the members of the [OSCURATO:PERSONA] are able to use the title of “advokat”. The title of “juris kandidat” is obtained following four and a half years of study. It is only after three years of practising law and following the successful completion of the [OSCURATO:PERSONA] bar exam that it is possible to apply to become a member of the [OSCURATO:PERSONA], in order to be granted the right to practise under the title of “advokat”. 14      It follows from this that Mr Z[o]morodian, not being a member of the [OSCURATO:PERSONA], is not a lawyer (advokat) within the meaning of [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice. Therefore, even if he can, under [OSCURATO:PERSONA] law, represent parties in the context of proceedings before [OSCURATO:PERSONA] courts, he does not satisfy the first of the two cumulative conditions of the fourth paragraph of [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice, and he is therefore not authorised to represent the applicant before the [OSCURATO:PERSONA] … 15      Secondly, it must be borne in mind that, according to the first subparagraph of [OSCURATO:PERSONA] 43(1) of the Rules of Procedure, the original of every pleading must be signed by the party’s agent or lawyer. 16      That provision must be interpreted as requiring the original of the application initiating proceedings to be signed by hand by the lawyer instructed by the applicant. … 17      … [T]he handwritten signature of the lawyer or agent representing a party, on the original of every procedural document, constitutes the sole means of ensuring that responsibility for such a document is assumed by a person entitled to represent the party before the Courts of the [OSCURATO:PERSONA], in accordance with [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice … 18      In the present case, it must be stated that the application initiating proceedings was signed by only Mr Z[o]morodian. As a consequence, the production of the certificate … which proves that [OSCURATO:PERSONA] has been a member of the [OSCURATO:PERSONA] since 26 August 2011 … has no effect on the admissibility of the action, given that he did not sign the document in question.’ The forms of order of the appellant 11 By its appeal, the appellant asks the [OSCURATO:PERSONA] to set aside the order under appeal and to refer the case back to the [OSCURATO:PERSONA]. Consideration of the appeal 12 [OSCURATO:PERSONA] 181 of its Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal in whole or in part. 13 In support of its appeal, the appellant puts forward, essentially, three grounds of appeal. The first ground concerns a claimed infringement of [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA]. By its second ground, the appellant claims that the [OSCURATO:PERSONA] erred in law by holding that an application must be signed by two lawyers. Last, by its third ground, the appellant claims that [OSCURATO:PERSONA] disregarded the principle of proportionality by not accepting that there was excusable error or that there were unforeseeable circumstances. The first ground of appeal 14 By its first ground, the appellant claims that the [OSCURATO:PERSONA] erred in holding that [OSCURATO:PERSONA] is not a ‘lawyer’ within the meaning of [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA]. While accepting that, in Sweden, the title ‘advokat’ (advocate) is exclusively reserved for someone admitted to the Bar, the appellant argues that all lawyers within a law firm, whether advocates or associate lawyers, act according to the rules of the Bar and are entitled to practise before the [OSCURATO:PERSONA] courts. 15 However, as the [OSCURATO:PERSONA] correctly stated in paragraph 10 of the order under appeal, a person may not validly represent the parties covered by the third subparagraph of [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] unless that person satisfies two cumulative conditions, namely, first, that the person is a lawyer and, second, that the person is authorised to practise before a court of a [OSCURATO:PERSONA] or another [OSCURATO:PERSONA] which is party to the EEA agreement (see, inter alia, orders in [OSCURATO:PERSONA] de Valencia v Commission , C‑363/06 P, EU:C:2008:99, paragraph 21, and Interspeed v Commission , C‑471/12 P, EU:C:2013:418, paragraph 9). 16 It is not disputed that, at the time of proceedings before the [OSCURATO:PERSONA], [OSCURATO:PERSONA] had not been admitted to the Bar and therefore did not hold the title of ‘advokat’. Accordingly, that representative of the appellant failed to demonstrate that he satisfied the first of the abovementioned two cumulative conditions (see, by analogy, order in [OSCURATO:PERSONA] de Valencia v Commission , EU:C:2008:99, paragraphs 22 and 23). 17 Consequently, the [OSCURATO:PERSONA] was entitled to hold, and did not thereby err in law, that [OSCURATO:PERSONA] was not a ‘lawyer’, within the meaning of [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA]. 18 The first ground of appeal must therefore be rejected as being manifestly unfounded. The second ground of appeal 19 By its second ground, the appellant claims that the [OSCURATO:PERSONA] erred in law by holding that an application must be signed by two lawyers. 20 It is clear that this ground of appeal is based on a misreading of the order under appeal. Far from ruling that both [OSCURATO:PERSONA] and [OSCURATO:PERSONA] should have signed the application, the [OSCURATO:PERSONA] stated that an action brought by a party covered by the third paragraph of [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice is inadmissible where the application was signed only by a person who is not a lawyer. 21 The reasoning of the [OSCURATO:PERSONA] on that point is, moreover, confirmed by the [OSCURATO:PERSONA]’s case-law to the effect that the requirement of signature by a lawyer authorised to practise before a court or tribunal of a [OSCURATO:PERSONA] or another [OSCURATO:PERSONA] which is a party to the EEA Agreement is an essential procedural condition which is not one of the requirements which can be rectified, after expiry of the time-limit for bringing an action, under [OSCURATO:PERSONA] 44(6) of the Rules of Procedure of the [OSCURATO:PERSONA], and the consequence of failure to comply with it is that the action is rendered inadmissible (see, to that effect, the orders in Diy-[OSCURATO:PERSONA] ve Ticaret and Akar v Commission , C‑163/07 P, EU:C:2007:717, paragraphs 25, 26 and 37, and Interspeed v Commission , EU:C:2013:418, paragraph 10). 22 Consequently, the second ground must also be rejected as being manifestly unfounded. The third ground of appeal 23 By its third ground, the appellant claims that the [OSCURATO:PERSONA] disregarded the principle of proportionality by concluding, from the mere fact that [OSCURATO:PERSONA] failed to sign the application, that the action must be dismissed as being inadmissible. According to the appellant, even if [OSCURATO:PERSONA] was not a ‘lawyer’ within the meaning of [OSCURATO:PERSONA] 19 of the Statute of the [OSCURATO:PERSONA] of Justice, the [OSCURATO:PERSONA] should have declared the action to be admissible, having regard to the existence of excusable error or unforeseeable circumstances. 24 In that regard, it must be borne in mind that the strict application of procedural rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see, inter alia, the judgments in Bell & Ross v OHIM , C‑426/10 P, EU:C:2011:612, paragraph 43, and Gbagbo and Others v Council , C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 71). 25 Consequently, where those employed to represent an applicant fail to comply with an essential procedural condition, the consequence must be that the action is inadmissible, unless it is established that abnormal circumstances, unforeseeable and outside their control, made compliance impossible (see, to that effect, the order in [OSCURATO:PERSONA] v OHIM , C‑325/03 P, EU:C:2005:28, paragraph 25, and Gbagbo and Others v Council , EU:C:2013:258, paragraph 72). 26 Since in this case it has not been established that there were such circumstances, the third ground of appeal is also manifestly unfounded. 27 In the light of the foregoing, this appeal must be dismissed. Costs 28 [OSCURATO:PERSONA] 137 of the Rules of Procedure of the [OSCURATO:PERSONA], applicable to the procedure on appeal pursuant to [OSCURATO:PERSONA] 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. 29 Since the appellant has been unsuccessful, it must be ordered to pay the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. [OSCURATO:PERSONA] & Co. shall pay the costs. [Signatures] * Language of the case: English.