Opinion of the Advocate General — ECLI:EU:C:2009:210
Date: 2009-03-31
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Dominant position
Procedure: Action for annulment;Appeal - unfounded
Origin: Germany

Summary of the Judgment 1. Appeals – Grounds – Inadequate or contradictory grounds (Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.) 2. Approximation of laws – Trade marks – Directive 89/104 – Right of the trade mark proprietor to prevent third parties from using an identical sign for identical goods – Enforcement against the proprietor’s contractual partner using the trade mark under a licence agreement – Excluded (Council Directive 89/104, Art. 5(1)(a)) 3. Appeals – Grounds – Review by the Court of Justice of the assessment by the Court of First Instance of the need to supplement the information before it – Possible only where the clear sense of the evidence has been distorted (Rules of Procedure of the Court of First Instance, Art. 64) 4. Appeals – Grounds – Procedural irregularity – Infringement of the principle that proceedings should be adjudicated within a reasonable time to the detriment of an applicant challenging a decision which obliged it to adapt its commercial policy 5. Community law – Principles – Fundamental rights – Observance ensured by the Court – Right of every person to fair hearing – Acting within a reasonable time (Charter of Fundamental Rights of the European Union, Art. 47) 6. Procedure – Duration of the proceedings before the Court of First Instance – Reasonable time – Criteria for assessment 7. Procedure – Duration of the proceedings before the Court of First Instance – Reasonable time – Proceedings concerning an infringement of the competition rules – Failure to act within a reasonable time – Consequences (Arts 235 EC and 288, second para., EC; Statute of the Court of Justice, Art. 61, first para.) 1. The duty to state reasons does not require the Court of First Instance to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and the reasoning may therefore be implicit on condition that it enables the persons concerned to know why the Court of First Instance has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review. (see para. 114) 2. By virtue of Article 5(1)(a) of Directive 89/104 on trade marks, a registered trade mark confers on the proprietor exclusive rights therein, entitling the proprietor to prevent all third parties not having his consent from using in the course of trade any sign which is identical with the trade mark in relation to goods or services which are identical with those for which the trade mark is registered. It is apparent from the wording itself of Article 5 of Directive 89/104 that that provision does not cover circumstances in which a third party uses a trade mark with the consent of its proprietor. That is the case, in particular, where the proprietor has authorised its contractual partners to use its mark under the terms of a licence agreement. Therefore, an undertaking cannot validly rely on the exclusive right conferred on it by a logo, duly registered as a trade mark, as regards the use of that logo by manufacturers and distributors who have entered into the Trade Mark Agreement with it. (see paras 125, 128-129) 3. The Court of First Instance is the sole judge of any need to supplement the information available to it in respect of the cases before it. Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the substantive inaccuracy of the findings of the Court of First Instance is apparent from the documents in the case. Therefore, the Court of First Instance cannot be criticised for having put, before and at the time of the hearing, a series of detailed questions to the parties in order to supplement the information already available to it and for having drawn certain conclusions from the replies given by the parties to those questions. (see paras 163-164) 4. The Court of Justice has jurisdiction in an appeal to verify whether a breach of procedure adversely affecting the appellant’s interests was committed by the Court of First Instance and must satisfy itself that the general principles of Community law have been observed. An undertaking which brings proceedings for the annulment of a decision which has obliged it to adapt the standard form of contract which it enters into with its customers will have, on self-evident commercial policy grounds, a clear interest in having a line of argument, by which it submits that that decision is unlawful, adjudicated upon within a reasonable period. (see paras 176, 180) 5. Article 6(1) of the European Convention on Human Rights provides that, in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. As a general principle of Community law, such a right is applicable in the context of proceedings brought against a Commission decision. That right has, moreover, been reaffirmed in Article 47 of the Charter of Fundamental Rights of the European Union, which relates to the principle of effective judicial protection. (see paras 177-179) 6. The reasonableness of the period for delivering judgment is to be appraised in the light of the circumstances specific to each case, such as the complexity of the case and the conduct of the parties. In that regard, the list of relevant criteria is not exhaustive and the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. Thus, the complexity of the case or the dilatory conduct of the applicant may be deemed to justify a duration which is prima facie too long. (see paras 181-182) 7. In the case of proceedings concerning infringement of competition rules, the fundamental requirement of legal certainty on which economic operators must be able to rely and the aim of ensuring that competition is not distorted in the internal market are of considerable importance not only for an applicant himself and his competitors but also for third parties, in view of the large number of persons concerned and the financial interests involved. In the case of proceedings relating to the abuse of a dominant position by an undertaking demanding a fee for the extremely widespread use of its logo, and having regard to the possible effects of the outcome of that dispute, proceedings before the Court of First Instance which lasted approximately five years and ten months, where that cannot be justified by any of the particular circumstances of the case, whether it be the complexity of the dispute, the conduct of the parties or by supervening procedural matters raised by the parties, or the adoption by the Court of First Instance of measures of organisation of procedure, fails to have regard to the requirement that the case be dealt with within a reasonable time. While it is true that failure on the part of the Court of First Instance to adjudicate within a reasonable time constitutes a procedural irregularity, it none the less remains the case that the first paragraph of Article 61 of the Statute of the Court of Justice should be interpreted and applied purposively. Since there is nothing to suggest that the failure to adjudicate within a reasonable time may have had an effect on the outcome of the dispute, the setting aside of the judgment under appeal would not remedy the infringement of the principle of effective legal protection committed by the Court of First Instance. In addition, having regard to the need to ensure that Community competition law is complied with, the Court of Justice cannot allow an appellant to reopen the question of the existence of an infringement, on the sole ground that there was a failure to adjudicate within a reasonable time, where all of its pleas directed against the findings made by the Court of First Instance concerning that infringement and the administrative procedure relating to it have been rejected as unfounded. Conversely, the failure on the part of the Court of First Instance to adjudicate within a reasonable time can give rise to a claim for damages brought against the Community under Article 235 EC and the second paragraph of Article 288 EC. (see paras 176-188, 191-195)