Corte di giustizia UE n. 2275/2018

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 11 October 2018 ( * ) (Third-party proceedings) [OSCURATO:PERSONA] C‑118/18 P-TO, APPLICATION initiating third-party proceedings under [OSCURATO:PERSONA] 42 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 28 August 2018, [OSCURATO:PERSONA], residing in Vienna (Austria), DAY Investments GmbH, established in Vienna, represented by C. Hoppe, Rechtsanwalt, applicants, the other parties to the proceedings being: [OSCURATO:PERSONA] GmbH, formerly [OSCURATO:PERSONA] GmbH, established in Neu-Isenburg (Germany), appellant, [OSCURATO:PERSONA] (EUIPO), defendant at first instance, [OSCURATO:PERSONA] Inc., established in [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), intervener at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of C. [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], acting as [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], E. Juhász and C. Vajda (Rapporteur), Judges, after hearing the [OSCURATO:PERSONA], J. Kokott, makes the following [OSCURATO:PERSONA] 1 By application lodged at the [OSCURATO:PERSONA] on 28 August 2018, [OSCURATO:PERSONA] and DAY Investments GmbH initiated third-party proceedings against the order of 28 June 2018, [OSCURATO:PERSONA] v EUIPO (C‑118/18 P, not published, ‘the contested order’, EU:C:2018:522). 2 By the contested order, the [OSCURATO:PERSONA] dismissed, as being, in part, manifestly inadmissible and, in part, manifestly unfounded, the appeal brought by [OSCURATO:PERSONA] GmbH against the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 December 2017, [OSCURATO:PERSONA] v EUIPO — [OSCURATO:PERSONA] (bittorrent) (T‑771/15, not published, ‘the judgment at issue’, EU:T:2017:887), by which the [OSCURATO:PERSONA] dismissed its action seeking the annulment of the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 31 August 2015 ([OSCURATO:PERSONA] R 2275/2013–5), relating to revocation proceedings between [OSCURATO:PERSONA] Inc. and [OSCURATO:PERSONA]. 3 By their application initiating third-party proceedings, the applicants claim that the [OSCURATO:PERSONA] should: –        vary the contested order by setting aside the judgment at issue, on the one hand, and by annulling the decision of the [OSCURATO:PERSONA] of Appeal of EUIPO or, in the alternative, by referring the case back to the [OSCURATO:PERSONA], on the other hand; –        order EUIPO and the intervener at first instance to pay the costs, and –        order that the original of the decision on the third-party proceedings be annexed to the original of the contested order and that a note of that decision be made in the margin of the original of the contested order. Admissibility of the application initiating third-party proceedings 4 According to [OSCURATO:PERSONA] 42 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], [OSCURATO:PERSONA], institutions, bodies, offices and agencies of the [OSCURATO:PERSONA] and any other natural or legal persons may, in cases and under conditions to be determined by the Rules of Procedure of the [OSCURATO:PERSONA], institute third-party proceedings to contest decisions rendered without their being heard, where those decisions are prejudicial to their rights. 5 [OSCURATO:PERSONA] 157(1)(b) and (c) of the Rules of Procedure provide that the application initiating third-party proceedings must state how the contested decision is prejudicial to the rights of the third party and indicate the reasons for which the third party was unable to take part in the original case. 6 It follows from those provisions that only persons who could have taken part in the original case are entitled to bring third-party proceedings against the decision in which that case resulted. Third-party proceedings are intended to enable persons who should or could have taken part in the original case to gain recognition of their rights (see, to that effect, order of 6 December 1989, C‑147/86-TO 1, not published, EU:C:1989:610, paragraphs 12 and 14). 7 Consequently, it is necessary to examine whether [OSCURATO:PERSONA] and DAY Investments, who have brought the present application initiating third-party proceedings against the contested order, could have taken part in the appeal brought against the judgment at issue, which gave rise to that order. 8 In that regard, in the first place, it should be stated that the applicants had not taken part in the proceedings which gave rise to the judgment at issue. Consequently, first, they did not have standing to bring an appeal against that judgment, since the second paragraph of [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice restricts that standing solely to parties which have been unsuccessful, in whole or in part, in their submissions before the [OSCURATO:PERSONA]. Second, nor did the applicants have the right, in the context of the appeal brought against the judgment at issue giving rise to the contested order, to submit a response under [OSCURATO:PERSONA] 172 of the Rules of Procedure. 9 As regards, in the second place, the question of whether the applicants could have intervened in that appeal, it should be recalled that the second paragraph of [OSCURATO:PERSONA] 40 of the Statute of the [OSCURATO:PERSONA] of Justice gives any person who can establish an interest in the result of a case submitted to the [OSCURATO:PERSONA] the right to intervene in that case. 10 According to settled case-law, the concept of an ‘interest in the result of a case’, within the meaning of the second paragraph of [OSCURATO:PERSONA] 40, must be defined in the light of the precise subject matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought, and not as an interest in relation to the pleas in law or arguments put forward. The wording ‘result of a case’ refers to the final decision sought, as set out in the operative part of the future judgment (order of the Vice-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 6 October 2015, [OSCURATO:PERSONA] SNCM v Commission , C‑418/15 P(I), EU:C:2015:671, paragraph 5 and the case-law cited). 11 In that regard, it should be ascertained, in particular, whether the applicant for leave to intervene is directly affected by the contested measure and whether his interest in the result of the case is certain. Generally, an interest in the result of the case can be considered to be sufficiently direct only in so far as that result is capable of altering the legal position of the party applying to intervene (order of the Vice-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 6 October 2015, [OSCURATO:PERSONA] SNCM v Commission , C‑418/15 P(I), EU:C:2015:671, paragraph 6 and the case-law cited). 12 As regards, first, [OSCURATO:PERSONA], it is apparent from the application initiating third-party proceedings that he is the [OSCURATO:PERSONA] and sole shareholder of [OSCURATO:PERSONA], the appellant in the appeal that gave rise to the contested order, which is described in that application as a ‘one-man business’. It is also apparent from that application that [OSCURATO:PERSONA] submits that he is adversely affected, directly and individually, by the contested order since the insolvency of [OSCURATO:PERSONA], which could ensue as a result of that order, would deprive him of his salary as [OSCURATO:PERSONA] of that company and would lead to the loss of the capital which he has invested in the company. 13 Second, according to the application initiating third-party proceedings, DAY Investments was also founded by [OSCURATO:PERSONA] who is its [OSCURATO:PERSONA]. It has been meeting [OSCURATO:PERSONA] obligations so that that company can continue its dispute against the intervener at first instance. If, by its execution, the contested order caused [OSCURATO:PERSONA] to become insolvent, DAY Investments could lose the sums loaned to [OSCURATO:PERSONA]. 14 If the claims set out in the previous two paragraphs of this order are correct, [OSCURATO:PERSONA] economic and financial interests, as sole shareholder of [OSCURATO:PERSONA], and of DAY Investments, the creditor of the former, may admittedly be adversely affected by the effects of the contested order. 15 However, an adverse effect, even if significant, on the economic and financial interests of a shareholder of a company which is the appellant in an appeal before the [OSCURATO:PERSONA], cannot be regarded as a direct, adverse effect on the interests of that shareholder, within the meaning of the case-law cited in paragraphs 10 and 11 of the present order, in so far as it does not alter his legal situation (see, to that effect, order of the Vice-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 6 October 2015, [OSCURATO:PERSONA] SNCM v Commission , C‑418/15 P(I), EU:C:2015:671, paragraph 20). The same is true of such an adverse effect on the economic and financial interests of a creditor of the appellant in an appeal before the [OSCURATO:PERSONA] (see, to that effect, order of the Vice-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 6 October 2015, Metalleftiki kai [OSCURATO:PERSONA] v Commission , C‑362/15 P(I), EU:C:2015:682, paragraph 19). 16 Such economic and financial interests, both of the shareholder and of the creditor, merge with those of the owned or debtor company, which is the appellant in the appeal at issue, and are affected only indirectly by the result of that appeal, through the consequences which that result has for that appellant (see, to that effect, orders of the Vice-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 6 October 2015, [OSCURATO:PERSONA] SNCM v Commission , C‑418/15 P(I), EU:C:2015:671, paragraph 20, and of 6 October 2015, Metalleftiki kai [OSCURATO:PERSONA] v Commission , C‑362/15 P(I), EU:C:2015:682, paragraph 19). 17 As regards, more particularly, the creditor’s interests, the [OSCURATO:PERSONA] has held that the position is different if the result of the case is such as to alter the actual legal situation of a creditor who seeks leave to intervene in a dispute in support of its debtor. That is the case, in particular, if that result has an impact on the legal classification of a debt in national law, as the debt may be included in the secured liabilities or the unsecured liabilities of the debtor depending on the outcome of the proceedings before the Courts of the [OSCURATO:PERSONA] (order of the Vice-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 6 October 2015, Metalleftiki kai [OSCURATO:PERSONA] v Commission , C‑362/15 P(I), EU:C:2015:682, paragraph 20 and the case-law cited). In the present case, it is not, however, stated in the application, let alone demonstrated, that upholding the contested order would lead to a change in the legal classification of the loan provided to [OSCURATO:PERSONA] by DAY Investments. 18 It follows from the foregoing that the applicants could not have been granted leave to intervene in the context of the appeal which gave rise to the contested order. 19 Thus, since the applicants could not have participated in any capacity in that appeal, and in view of the case-law cited in paragraph 6 of the present order, they are not entitled to initiate third-party proceedings. Therefore, their application initiating third-party proceedings must be dismissed as being inadmissible. Costs 20 [OSCURATO:PERSONA] 138(1) 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 present order was adopted before the application initiating third-party proceedings was served on the other parties and, therefore, before the latter could have incurred any costs, the applicants should be ordered to bear their own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The application initiating third-party proceedings is dismissed as being inadmissible. 2. [OSCURATO:PERSONA] and DAY Investments GmbH shall bear their own costs. Luxembourg, 11 October 2018. A. [OSCURATO:PERSONA] C. [OSCURATO:PERSONA] as [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.