ORDER OF THE COURT (Seventh Chamber)
21 April 2023(*)
(Appeal – Action for annulment – Article 19 of the Statute of the Court of Justice of the European Union – Representation of parties in direct actions before the Courts of the European Union – Lawyer representing the appellant as a third party – Requirement of independence – Lawyer working in the same law firm as the appellant)
In Case C‑306/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 May 2022,
Nigar Kirimova, residing in Munich (Germany), represented by A. Parassina, avvocato, and A. García López, abogado,
appellant,
the other party to the proceedings being:
European Union Intellectual Property Office (EUIPO), represented by G. Predonzani and A. Söder, acting as Agents,
defendant at first instance,
THE COURT (Seventh Chamber),
composed of M.L. Arastey Sahún, President of the Chamber, F. Biltgen (Rapporteur) and N. Wahl, Judges,
Advocate General: N. Emiliou,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 182 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        By her appeal, Ms Nigar Kirimova seeks to have set aside the order of the General Court of the European Union of 9 March 2022, Kirimova v EUIPO (T‑727/20, ‘the order under appeal’, EU:T:2022:136), by which the General Court dismissed as inadmissible the application based on Article 263 TFEU seeking annulment of the decision of the Executive Director of the European Union Intellectual Property Office (EUIPO) of 30 September 2020 rejecting the appellant’s request for an exemption from the requirement to be a national of one of the Member States of the European Economic Area (EEA) on which inclusion on the list of professional representatives appointed by that office depends (‘the contested decision’).
Legal context
2        Under Article 19, first to fourth paragraphs, of the Statute of the Court of Justice of the European Union, applicable to the General Court under the first paragraph of Article 53 thereof:
‘The Member States and the institutions of the [European] 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)] and also the EFTA Surveillance Authority referred to in that Agreement shall be represented in [the] same manner.
Other parties must be represented by a lawyer.
Only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Court.’
Background to the dispute
3        The background to the dispute may be summarised as follows.
4        The appellant, a national of the Republic of Azerbaijan, was employed, at the material time, as a lawyer in the law firm Brandstock Legal Rechtsanwaltgesellschaft mbH (‘Brandstock Legal’).
5        On 10 October 2019, the appellant submitted an application for inclusion on the list of professional representatives before EUIPO and, being an Azeri national, also requested an exemption from the requirement to be a national of one of the Member States of the EEA, which must be satisfied in order to be included in the list.
6        By the contested decision, the Executive Director of EUIPO rejected the appellant’s request for an exemption.
The procedure before the General Court and the order under appeal
7        By application lodged at the Registry of the General Court on 7 December 2020 and signed by a lawyer working within Brandstock Legal, the appellant, then the applicant, brought an action for annulment of the contested decision.
8        In the context of a measure of organisation of procedure, the Court invited Ms Kirimova to indicate the employment relationship that she likely had with that lawyer, an invitation to which Ms Kirimova replied on 20 January 2021.
9        By the order under appeal, the General Court dismissed that action as being inadmissible, on the ground that that lawyer did not satisfy the requirement of independence laid down in the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union.
10      After recalling the case-law applicable in this area, the General Court found, first, in paragraphs 32 and 33 of the order under appeal, that the applicant and her lawyer had a ‘particularly close professional relationship’, on account of the fact that they were both employed, on the date on which the application was lodged, within the same team at Brandstock Legal, the former as a ‘lawyer’ and the second also as a ‘lawyer’, while the appellant was, moreover, the ‘assistant’ to her lawyer.
11      In paragraph 35 of the order under appeal, the General Court held that the links between the applicant and her lawyer were ‘particularly close’ since the dispute directly concerned the applicant’s profession; the applicant was specifically responsible for handling intellectual property cases within the Brandstock Legal team led by that lawyer. In that context, the General Court pointed out, in paragraph 36 of the order under appeal, that the applicant had submitted her applications to EUIPO using her employer’s fax machine and that she had also stated her business email address in those applications.
12      Secondly, the General Court held, in paragraph 37 of the order under appeal, that it was apparent from the documents in the case file that both Brandstock Legal and the applicant’s lawyer had repeatedly referred to their interest in the outcome of the dispute.
13      Accordingly, the General Court noted, in paragraphs 38 to 42 of the order under appeal, that the letter of recommendation drafted for the purposes of the proceedings brought by the appellant before EUIPO had been signed by the applicant’s lawyer under the heading and on behalf of Brandstock Legal. In addition, that law firm, which specialises in intellectual property, bore the costs relating to the applicant’s entry in certain professional registers, since it was in the interest of that law firm that the ‘formal qualification’ of its employee, who was among the best and most competent of that firm, ‘correctly reflects the content of her work’.
14      The General Court inferred from this, in paragraphs 45 and 46 of the order under appeal, that, having regard to the close professional relationship and the convergent economic interests of the applicant and her lawyer, the latter ‘was clearly not, on the date on which the action was brought, sufficiently distant to protect and defend her client’s interests to the greatest possible extent’, with the result that she was in a situation that ‘manifestly had a detrimental effect on her capacity to carry out that task’ in complete independence.
15      The General Court added, in paragraph 47 of the order under appeal, that the applicant’s decision to terminate her employment contract with Brandstock Legal after the action at first instance had been brought did not in any way invalidate that conclusion, since the admissibility of an action had to be assessed by reference to the situation prevailing when the application was lodged. Furthermore, the requirement of a signature on the application 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, under Article 78(6) of the Rules of Procedure of the General Court, is not one of the requirements which can be rectified.
Procedure before the Court of Justice and forms of order sought
16      On 8 May 2022, the appellant brought an appeal against the order under appeal.
17      By her appeal, the appellant claims that the Court of Justice should:
–        set aside the order under appeal and refer the case back to the General Court;
–        deal with the case as a Grand Chamber pursuant to the third paragraph of Article 16 of the Statute of the Court of Justice of the European Union; and
–        order EUIPO to pay the costs.
The appeal
Application of Article 182 of the Rules of Procedure of the Court of Justice
18      Under Article 182 of the Rules of Procedure of the Court of Justice, where the Court has already ruled on one or more questions of law identical to those raised by the pleas in law of the appeal or cross-appeal and considers the appeal to be manifestly well founded, it may, acting on a proposal from the Judge-Rapporteur and after hearing the parties and the Advocate General, decide by reasoned order in which reference is made to the relevant case-law to declare that appeal manifestly well founded.
19      The appellant stated that she had no objection to the application of that article. EUIPO, for its part, opposed the application of that article.
20      In the present case, it must be noted that the grounds of appeal raise questions identical to those on which the Court ruled in the judgment of 24 March 2022, PJ and PC v EUIPO (C‑529/18 P and C‑531/18 P, EU:C:2022:218), and in the order of 15 February 2023, Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris v Parliament (C‑546/21 P, not published, EU:C:2023:123).
21      Consequently, it is appropriate to apply Article 182 of the Rules of Procedure of the Court of Justice.
Substance
22      In support of the appeal, the appellant raises two grounds of appeal, the first alleging misinterpretation of Article 19 of the Statute of the Court of Justice of the European Union, and the second alleging breach of the principle of legal certainty on account of an incorrect application of Article 129 of the Rules of Procedure of the General Court.
Arguments of the appellant
23      By the first ground of appeal, the appellant claims that the General Court misinterpreted the requirement of independence of a ‘lawyer’ within the meaning of the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union.
24      The appellant submits that her lawyer ‘was no[t] … structural[ly] or functional[ly] dependen[t]’ on her, their relationship being limited to a professional relationship between colleagues of a horizontal nature.
25      The appellant submits that the requirement of the independence of the ‘representative’, within the meaning of Article 19 of the Statute of the Court of Justice of the European Union, must be interpreted not as a total disinterest or detachment of that representative with regard to the dispute, but as the ability of that representative to exercise his or her mandate without pressure in the light of the relationship with his or her client, while remaining free to refuse to represent the latter.
26      In the present case, the appellant states that her lawyer was not in any way obliged, because of any relationship of power, to represent her before the Courts of the European Union, particularly since that lawyer held a management position at their common employer.
27      In addition, the appellant disputes the General Court’s statement that her lawyer and the law firm in which she was employed had an economic interest in the resolution of the dispute. The absence of any financial interest on the part of her lawyer and that law firm in the outcome of the dispute is confirmed by the fact that her lawyer had continued to represent her even though the appellant had terminated her contract of employment with Brandstock Legal.
Findings of the Court
28      As regards the representation before the Courts of the European Union of a party not covered by the first two paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, it should be recalled that the third and fourth paragraphs of Article 19 of that Statute, applicable to proceedings before the General Court in accordance with Article 56 of that Statute, lay down two separate and cumulative conditions, namely, first, that the parties not referred to by the first two paragraphs of Article 19 must be represented by a lawyer and, second, that only a lawyer authorised to practise before a court of a Member State or of another State party to the Agreement on the European Economic Area may represent or assist a party before the Courts of the European Union (judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 58 and the case-law cited, and order of 15 February 2023, Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris v Parliament, C‑546/21 P, not published, EU:C:2023:123, paragraph 29).
29      As regards the first condition, relating to the concept of ‘lawyer’, it follows from the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union that a ‘party’, within the meaning of that provision, whatever that party’s standing, is not authorised to act on its own behalf before a Court of the European Union, but must use the services of a third party (see, to that effect, judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 61 and the case-law cited, and order of 15 February 2023, Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris v Parliament, C‑546/21 P, not published, EU:C:2023:123, paragraph 30).
30      That finding is borne out by the objective of parties not covered by the first two paragraphs of Article 19 of the Statute of the Court of Justice of the European Union being represented by a lawyer, which is, on the one hand, to prevent private parties from acting on their own behalf before the Courts without using an intermediary and, on the other, to ensure that legal persons are defended by a representative who is sufficiently distant from the legal person he or she represents (see, to that effect, judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 63 and the case-law cited, and order of 15 February 2023, Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris v Parliament, C‑546/21 P, not published, EU:C:2023:123, paragraph 31).
31      In that regard, the Court has recalled that the objective of representation by a lawyer, as referred to in the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union and which is to be carried out in the interests of the sound administration of justice, is above all to protect and defend to the greatest possible extent the principal’s interests, acting in full independence and in line with the law and professional rules and codes of conduct (judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 64 and the case-law cited, and order of 15 February 2023, Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris v Parliament, C‑546/21 P, not published, EU:C:2023:123, paragraph 32).
32      Thus, the requirement of the independence of lawyers is determined not only negatively, that is to say, by the absence of an employment relationship between the lawyer and his or her client, but also positively, that is by reference to the lawyer’s professional ethical obligations (judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 66 and the case-law cited, and order of 15 February 2023, Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris v Parliament, C‑546/21 P, not published, EU:C:2023:123, paragraph 33).
33      As regards the positive definition of that requirement of independence, the Court has expressly stated that that independence must be understood not as the absence of any connection whatsoever between the lawyer and his or her client, but only of those which have a manifestly detrimental effect on his or her capacity to carry out the task of defending his or her client while acting in that client’s interests to the greatest possible extent, in line with the law and professional rules and codes of conduct (judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 69 and the case-law cited, and order of 15 February 2023, Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris v Parliament, C‑546/21 P, not published, EU:C:2023:123, paragraph 34).
34      In order to take account of the objective of the task of legal representation, the requirement of independence imposed by EU law on the representatives of non-privileged parties must be interpreted in such a way as to limit cases of inadmissibility on account of a failure in the task of representation to cases where it is clear that the lawyer concerned is not in a position to carry out his or her task of defending his or her client while acting in that client’s interests to the greatest possible extent, so that he or she must be removed in the interests of the client (judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 74, and order of 15 February 2023, Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris v Parliament, C‑546/21 P, not published, EU:C:2023:123, paragraph 35).
35      The General Court was incorrect to hold, in paragraph 45 of the order under appeal, that, in the light, first, of the close links between the applicant, her lawyer and Brandstock Legal, and, secondly, of the deep and clear convergence of the economic interests of those three parties, the applicant’s lawyer ‘was clearly not, on the date on which the action was brought, sufficiently distant to protect and defend her client’s interests to the greatest possible extent and was therefore in a situation that manifestly had a detrimental effect on her capacity to carry out that task’.
36      As regards the professional relationship between the appellant and her lawyer, the General Court relied, in paragraphs 32 and 33 of the order under appeal, on documents in the file from which it was apparent that the appellant was employed as a lawyer within Brandstock Legal and that she was the assistant to her legal representative, who worked as a lawyer in that firm.
37      In that regard, it must, however, be borne in mind that the profession of lawyer is exercised in various forms, ranging from sole practitioners to large international law firms, and it is for lawyers who enter into partnerships to define freely the detailed arrangements governing their collaboration and contractual relations, subject to compliance with the law, national professional rules and professional codes of conduct. It must be presumed that a lawyer working in a law firm satisfies the same requirements of independence as a lawyer practising individually or as a partner in a firm (see, to that effect, judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 79, and order of 15 February 2023, Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris v Parliament, C‑546/21 P, not published, EU:C:2023:123, paragraph 38).
38      In addition, the fact that the appellant is also employed as a lawyer by the law firm in which the lawyer concerned collaborates is not sufficient to rebut that presumption. It would be different if the appellant were herself a partner in the law firm concerned, so that, as a result, she would be able to exercise effective control over her lawyer (see, to that effect, judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 81, and order of 15 February 2023, Fundacja Instytut na rzecz Kultury Prawnej Ordo Iuris v Parliament, C‑546/21 P, not published, EU:C:2023:123, paragraph 40).
39      However, given that the appellant held the position of assistant to her lawyer, it cannot be considered that she was in a position to exercise control over the latter such that the requirement of independence imposed by EU law could be undermined.
40      Furthermore, as regards the alleged convergence of economic interests between the parties, the General Court chose, in paragraphs 35 to 43 of the order under appeal, to base an argument, inter alia, on the fact that the dispute directly concerned the profession of the appellant, who was one of the oldest, experienced and competent employees of the firm concerned and worked on a large and important case load for that firm, so that the firm also had an interest in the annulment of the contested decision, a decision which prevented the appellant from obtaining authorisation as a representative of natural and legal persons before EUIPO.
41      Although the posts occupied by both the appellant and her lawyer within Brandstock Legal necessarily implied that those three parties shared common interests in the outcome of the dispute, such interests could not however suffice to establish that that lawyer was not capable of duly carrying out the task of representation with which she was entrusted (see, to that effect, judgment of 14 July 2022, Universität Bremen v REA, C‑110/21 P, EU:C:2022:555, paragraph 66).
42      Therefore, in so far as none of the factors relied on leads to the conclusion that those common interests in the outcome of the dispute prevented the appellant from being represented in legal proceedings by her lawyer, it must be concluded that the General Court exceeded the limits of its power of review laid down in the case-law cited in paragraphs 33 and 34 of the present order, according to which the requirement of independence laid down in EU law must be interpreted in such a way as to limit cases of inadmissibility solely to cases where it is obvious that the lawyer concerned is not in a position to carry out his or her task of defending his or her client while acting in that client’s interests to the greatest possible extent.
43      It follows from the foregoing that the General Court erred in law in finding that the appellant’s lawyer could not be regarded as a ‘lawyer’ within the meaning of the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union.
44      In the light of all the foregoing considerations, the first ground of appeal must be upheld as manifestly well founded and, accordingly, the order under appeal must be set aside, without it being necessary to examine the second ground of appeal.
The procedure before the General Court
45      In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice, when setting aside the decision of the General Court, may give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
46      In the present case, since the state of the proceedings does not permit final judgment to be given on the substance, the case must be referred back to the General Court.
Costs
47      Since the case has been referred back to the General Court, the costs relating to the appeal proceedings must be reserved.
On those grounds, the Court (Seventh Chamber) hereby orders:
1.      The order of the General Court of the European Union of 9 March 2022, Kirimova v EUIPO (T‑727/20, EU:T:2022:136), is set aside.
2.      Case T‑727/20 is referred back to the General Court of the European Union.
3.      The costs are reserved.
Luxembourg, 21 April 2023.
A. Calot Escobar
M.L. Arastey Sahún
Registrar
President of the Chamber
*      Language of the case: English.