61995CO0270_EN
Parties
Grounds
Decision on costs
Operative part
Parties
In Case C-270/95 P,
Christina Kik, lawyer and trade mark agent, represented by Goosen L. Kooy, of the Hague Bar, with an address for service in Luxembourg at the chambers of Nicolas Decker, 16 Avenue Marie-Thérèse,
appellant,
APPEAL against the order of the Court of First Instance of the European Communities (First Chamber) of 19 June 1995 in Case T-107/94
Kik
v
Council and Commission
[1995] ECR II-1717, seeking to have that order set aside,
the other parties to the proceedings being:
Council of the European Union, represented by Giorgio Maganza and Guus Houttuin, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Bruno Eynard, Director of the Legal Affairs Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,
and
Commission of the European Communities,
represented by Pieter Van Nuffel, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
supported by
Kingdom of Spain, represented by Alberto José Navarro González, Director-General for Community Legal and Institutional Coordination, and Gloria Calvo Díaz, Abogado del Estado, of the Community Legal Department, acting as Agents, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard Emmanuel Servais,
intervener,
THE COURT (First Chamber),
composed of:
D.A.O. Edward, President of the Chamber,
P. Jann (Rapporteur) and
L. Sevón, Judges,
Advocate General: P. Léger,
Registrar: R. Grass,
after hearing the Opinion of the Advocate General, makes the following
Order
Grounds
1. By application lodged at the Court Registry on 9 August 1995, Ms Kik brought an appeal under Article 49 of the Statute of the Court of Justice of the EC and the corresponding provisions of the ECSC and Euratom statutes against the order of the Court of First Instance of 19 June 1995 in Case T-107/94
Kik
v
Council and Commission
[1995] ECR II-1717, in which the Court of First Instance dismissed as inadmissible her application for annulment of Article 115 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), in that it excludes Dutch as a language of the Office for Harmonization in the Internal Market (trade marks and designs) ( " the Office" ).
2. The Office was established by Article 2 of Regulation No 40/94.
3. The use of languages with regard to the filing of trade mark applications and in opposition, revocation and invalidity proceedings is governed by Article 115 of Regulation No 40/94.
Under Article 115(1), applications for a Community trade mark may be filed in the Office in any of the official languages of the European Community.
Article 115(2) restricts the languages of the Office to English, French, German, Italian and Spanish.
Paragraphs 3 to 7 of that article provide, in particular, that the applicant must indicate, in the application itself, a second language, which must be a language of the Office, and that, if the application was made in a language other than the languages of the Office, the latter may send written communications to the applicant in that second language, and, lastly, that the applicant is to be deemed to accept the second language as a language of proceedings for opposition, revocation or invalidity proceedings.
4. Paragraph 3 of the contested order states that the applicant, who is a native Dutch speaker, is a lawyer and trade mark agent.
She has a financial interest in a Netherlands firm of patent agents.
5. By application lodged at the Registry of the Court of First Instance on 15 March 1994, the applicant brought proceedings against the Council and the Commission for annulment of Article 115(2) of Regulation No 40/94.
She also sought from the Court of First Instance an order restraining the Office from adopting or causing to be adopted any measures enabling it to commence operating until the Council reversed its decision to exclude Dutch from the languages of the Office.
The Council, the Commission and the Kingdom of Spain, which had been granted leave to intervene in support of the form of order sought by those institutions, pleaded that the action was inadmissible.
6. By order of 19 June 1995 the Court of First Instance dismissed the action as inadmissible.
7. In her appeal the appellant claims that the Court of Justice should annul the order of the Court of First Instance and declare the application for annulment of Article 115 of Regulation No 40/94 admissible with respect to the Council of the European Union.
The sole plea advanced by her in support of her appeal is that the Court of First Instance erred in law in basing its decision on a division of individuals into categories based on the language used by them.
She argues that such a division is unlawful because it is incompatible with Regulation No 1 of the Council of 15 April 1958 determining the languages to be used by the European Economic Community (OJ, English Special Edition 1952-1958, p. 59).
The appellant considers that, by reason of that incompatibility, Regulation No 40/94 has no general application in that regard and is, on the contrary, in the nature of a decision which is of direct and individual concern to her.
8. In their response, the Council and the Commission contend that the appeal should be dismissed.
9. Under Article 119 of the Rules of Procedure, the Court may at any time dismiss an appeal where it is clearly inadmissible or clearly unfounded.
10. The Court of First Instance observed as follows in paragraphs 35 and 36 of its order:
" 35. In so far as the action for annulment is directed against the Council, it must be borne in mind that, by virtue of the fourth paragraph of Article 173 of the EC Treaty, the admissibility of annulment proceedings brought by a natural or legal person against a regulation is subject to the condition that the regulation challenged must be, in reality, a decision of direct and individual concern to the applicant, and that the criterion distinguishing a regulation from a decision must be sought in the general application, or otherwise, of the measure in question (see, for example, Case C-168/93
Government of Gibraltar and Gibraltar Development Corporation
v
Council
[1993] ECR I-4009; Case T-116/94
Cassa Nazionale di Previdenza ed Assistenza a favore degli Avvocati e Procuratori
v
Council
[1995] ECR II-1; and Case T-472/93
Campo Ebro Industrial and Others
v
Council
[1995] ECR II-421).
A measure is of general application if it applies to objectively determined situations and produces its legal effects with respect to categories of persons envisaged in the abstract (see, for example, Case C-244/88
Usines Coopératives de Déshydratation du Vexin and Others
v
Commission
[1989] ECR 3811 and Case C-299/88
Cargill and Others
v
Commission
[1990] ECR I-1303).
36. In the present case, Regulation No 40/94 is clearly intended to establish a single procedural system whereby undertakings can obtain a Community trade mark.
As part of that single system, the language regime set up by Article 115 produces legal effects with respect to a category of persons envisaged in the abstract, namely persons seeking to obtain a Community trade mark on their own behalf or on behalf of their principals.
The applicant is therefore affected by the contested measure solely in her objective capacity as a trade mark agent, in the same way as any other trade mark agent who is, or might be in the future, in the same situation with regard to the language used until now in his or her professional activity (see, for example, in comparable situations, Case 231/82
Spijker
v
Commission
[1983] ECR 2559, paragraph 9; Case T-469/93
GUNA
v
Council
[1993] ECR II-1205, paragraph 17; and Case T-117/94
Associazione Agricoltori della Provincia di Rovigo and Others
v
Commission
[1995] ECR II-455).
"
11. The appellant ' s arguments cannot invalidate the finding of the Court of First Instance that Article 115 of Regulation No 40/94 is not of direct and individual concern to her.
Contrary to her contention, the Court of First Instance did not create a new legal category composed of trade mark agents working in Dutch, but merely found that trade mark agents who use that language are all in the same position.
The appellant ' s argument is therefore based on an incorrect reading of the order.
12. Furthermore, in order for the appellant to be regarded as individually concerned, her legal position must be affected by reason of circumstances in which she is differentiated from all other persons and which distinguish her individually just as in the case of a person to whom a decision is addressed (see the judgments in Case 25/62
Plaumann
v
Commission
[1963] ECR 95 and Case C-309/89
Codorniu
v
Council
[1994] ECR I-1853, paragraph 20).
13. The fact that a legal provision may have different practical effects for the various persons to whom it applies is not inconsistent with its nature as a regulation when the circumstances in which it applies are objectively determined (see, in particular, the judgments in Case 6/68
Zuckerfabrik Watenstedt
v
Council
[1968] ECR 409 and Case 101/76
Koninklijke Scholten Honig
v
Council and Commission
[1977] ECR 797, paragraph 24).
14. In the present case, Article 115 of Regulation No 40/94 applies to all persons applying for a Community trade mark, by requiring them to adhere to a language system.
Its scope is therefore objectively determined in relation to its purpose.
15. In the light of those rules of general application, the appellant has not shown that her circumstances differentiate her from all other persons seeking to obtain a Community trade mark on their own behalf or on behalf of their principals.
16. The Court of First Instance was therefore correct in finding the appellant ' s action for annulment inadmissible.
17. Consequently, the appeal must be dismissed as manifestly unfounded.
Decision on costs
Costs
18. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs.
Since the appellant has been unsuccessful, she must be ordered to pay her own costs and the costs of the Council and the Commission.
The Kingdom of Spain, which has intervened, must be ordered to bear its own costs pursuant to Article 69(4) of the Rules of Procedure.
Operative part
On those grounds,
THE COURT (First Chamber)
hereby orders:
1. The appeal is dismissed.
2. The appellant is ordered to pay her own costs and the costs of the Council and the Commission.
The intervener is ordered to bear its own costs.