Brown Brothers Harriman v OHIM (Order of the Court) [2014] EUECJ C-101/14

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(Appeal — Application before the General Court of the European Union signed by a ‘juris kandidat’ — No representation by a lawyer — Article 19 of the Statute of the Court of Justice of the European Union — Manifest inadmissibility of the action)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 February 2014,

Brown Brothers Harriman & Co., established in New York (United States), represented by P. Leander and T. Kronhöffer, advokater,

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

composed of M. Ilešič (Rapporteur), President of the Chamber, C.G. Fernlund, A. Ó Caoimh, C. Toader and E. Jarašiūnas, Judges,

having decided, after hearing the Advocate General, to proceed by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court,

1 By its appeal, Brown Brothers Harriman & Co. asks the Court to set aside the order of the General Court of the European Union in Brown Brothers Harriman v OHIM (TRUST IN PARTNERSHIP), T-389/13, EU:T:2013:691 (‘the order under appeal’), whereby the General Court dismissed as being manifestly inadmissible its action against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 25 April 2013 (Case R 1740/2012-1), concerning the international registration, designating the European Union, of the word mark TRUST IN PARTNERSHIP.

2 Article 19 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to Article 53 of the Statute, provides:

‘The Member States and the institutions of the Union shall be represented before the Court of Justice by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer.

The States, other than the Member States, which are parties to the Agreement on the European Economic Area [of 2 May 1992 (OJ 1994 L 1, p. 3, ‘the EEA Agreement’)] and also the EFTA Surveillance Authority referred to in that Agreement shall be represented in same manner.

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 Court.

3 The first subparagraph of Article 43(1) of the Rules of Procedure of the General Court provides:

‘The original of every pleading must be signed by the party’s agent or lawyer.’

‘3. The lawyer acting for a party must lodge at the Registry a certificate that he is authorised to practise before a Court of a Member State or of another State 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 Article, 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 General Court shall decide whether the non-compliance with these conditions renders the application formally inadmissible.’

5 The appellant brought its action by application lodged at the Registry of the General Court on 22 July 2013.

6 That application stated that the appellant was represented by Mr T. Kronhöffer and Mr A. Zomorodian, who practise at the same law firm established in Stockholm (Sweden).

7 The application was signed by only one of the two representatives, namely Mr Zomorodian.

8 On 8 August 2013, pursuant to Article 44(6) of its Rules of Procedure, the General Court 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 Article 44(3) of those rules.

9 On 15 August 2013, in response to that request, Mr Kronhöffer and Mr Zomorodian asserted that they were authorised to practise as ‘lawyers’ and produced to that effect two certificates concerning them from the Sveriges Advokatsamfund (Swedish Bar Association).

10 The General Court, by the order under appeal, dismissed the action as being manifestly inadmissible. The reasons stated were as follows:

‘9 First, it must be held that, pursuant to the third paragraph of Article 19 of the Statute of the Court of Justice …, parties other than the Member States and institutions of the Union must be represented before the Courts of the Union by a lawyer, for which the term in Sweden is “advokat”. According to Swedish 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 Article 19 of the Statute of the Court of Justice that two cumulative conditions must be satisfied in order for a person to be able to validly represent parties other than Member States and institutions of the Union before the Courts of the Union; that person must be a lawyer (“advokat”, according to the Swedish version) and he must be authorised to practise before a court of a Member State or of a State 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 Article 19 of the Statute of the Court 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 Member States and is also to be found in the Union legal order, as is precisely demonstrated by Article 19 of the Statute of the Court of Justice …

12 In that regard, one of the certificates from the Sveriges Advokatsamfund … shows that Mr Z[o]morodian is a “juris kandidat” and that, although not a member of the Swedish Bar, he is authorised, according to Swedish law, to practise before the Swedish courts.

13 It also states that only the members of the Swedish Bar 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 Swedish bar exam that it is possible to apply to become a member of the Swedish Bar, 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 Swedish Bar, is not a lawyer (advokat) within the meaning of Article 19 of the Statute of the Court of Justice. Therefore, even if he can, under Swedish law, represent parties in the context of proceedings before Swedish courts, he does not satisfy the first of the two cumulative conditions of the fourth paragraph of Article 19 of the Statute of the Court of Justice, and he is therefore not authorised to represent the applicant before the General Court …

15 Secondly, it must be borne in mind that, according to the first subparagraph of Article 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 Union, in accordance with Article 19 of the Statute of the Court 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 Mr Kronhöffer has been a member of the Swedish Bar since 26 August 2011 … has no effect on the admissibility of the action, given that he did not sign the document in question.’

11 By its appeal, the appellant asks the Court to set aside the order under appeal and to refer the case back to the General Court.

12 Under 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 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 Article 19 of the Statute of the Court. By its second ground, the appellant claims that the General Court erred in law by holding that an application must be signed by two lawyers. Last, by its third ground, the appellant claims that General Court disregarded the principle of proportionality by not accepting that there was excusable error or that there were unforeseeable circumstances.

14 By its first ground, the appellant claims that the General Court erred in holding that Mr Zomorodian is not a ‘lawyer’ within the meaning of Article 19 of the Statute of the Court. 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 Swedish courts.

15 However, as the General Court correctly stated in paragraph 10 of the order under appeal, a person may not validly represent the parties covered by the third subparagraph of Article 19 of the Statute of the Court 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 Member State or another State which is party to the EEA agreement (see, inter alia, orders in Comunidad Autónoma 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 General Court, Mr Zomorodian 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 Comunidad Autónoma de Valencia v Commission, EU:C:2008:99, paragraphs 22 and 23).

17 Consequently, the General Court was entitled to hold, and did not thereby err in law, that Mr Zomorodian was not a ‘lawyer’, within the meaning of Article 19 of the Statute of the Court.

18 The first ground of appeal must therefore be rejected as being manifestly unfounded.

19 By its second ground, the appellant claims that the General Court 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 Mr Zomorodian and Mr Kronhöffer should have signed the application, the General Court stated that an action brought by a party covered by the third paragraph of Article 19 of the Statute of the Court of Justice is inadmissible where the application was signed only by a person who is not a lawyer.

21 The reasoning of the General Court on that point is, moreover, confirmed by the Court’s case-law to the effect that the requirement of signature by a lawyer authorised to practise before a court or tribunal of a Member State or another State 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 Article 44(6) of the Rules of Procedure of the General Court, and the consequence of failure to comply with it is that the action is rendered inadmissible (see, to that effect, the orders in Diy-Mar Insaat Sanayi 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.

23 By its third ground, the appellant claims that the General Court disregarded the principle of proportionality by concluding, from the mere fact that Mr Kronhöffer failed to sign the application, that the action must be dismissed as being inadmissible. According to the appellant, even if Mr Zomorodian was not a ‘lawyer’ within the meaning of Article 19 of the Statute of the Court of Justice, the General Court 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 Zuazaga Meabe 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.

28 Under Article 137 of the Rules of Procedure of the Court, applicable to the procedure on appeal pursuant to Article 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.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Brown Brothers Harriman v OHIM (Order of the Court) [2014] EUECJ C-101/14_CO (17 July 2014) URL: http://www.bailii.org/eu/cases/EUECJ/2014/C10114_CO.html Cite as: ECLI:EU:C:2014:2115, EU:C:2014:2115, [2014] EUECJ C-101/14_CO

Court of Justice of the European Communities (including Court of First Instance Decisions)