ORDER OF THE COURT (Eighth Chamber)
26 February 2015 (*)
(Appeal — Community trade mark — Word mark GULBENKIAN — Opposition by the owner of the well-known trade mark, company name and national logos including the word elements ‘FUNDAÇÃO CALOUSTE GULBENKIAN’ — Partial rejection of the opposition — Admissibility of evidence adduced for the first time before the General Court — Likelihood of confusion)
In Case C‑414/14 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 September 2014,
Fundação Calouste Gulbenkian, established in Lisbon (Portugal), represented by G. Macias Bonilla, G. Marín Raigal and P. López Ronda, advogados,
appellant,
the other parties to the proceedings being:
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM),
defendant at first instance,
Micael Gulbenkian, residing in Oeiras (Portugal),
intervener at first instance,
THE COURT (Eighth Chamber),
composed of A. Ó Caoimh, President of the Chamber, C. Toader (Rapporteur) and C.G. Fernlund, Judges,
Advocate General: P. Cruz Villalón,
Registrar: A. Calot Escobar,
having regard to the decision taken, after hearing the Advocate General, to give a decision on the action by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1        By its appeal, the Fundação Calouste Gulbenkian (‘FCG’) asks the Court to set aside the judgment of the General Court of the European Union in Fundação Calouste Gulbenkian v OHIM — Gulbenkian (GULBENKIAN) (T‑541/11, EU:T:2014:584, ‘the judgment under appeal’) dismissing its application for annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (‘the Board of Appeal’) of 15 July 2011 (Case R 1436/2010-2), relating to opposition proceedings between FCG and Mr Gulbenkian (‘the contested decision’).
Legal context
2        Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), which entered into force on 13 April 2009, repealed and replaced Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1). In accordance with Article 166 of Regulation No 207/2009, references to Regulation No 40/94 are to be construed as references to Regulation No 207/2009 and are to be read in accordance with the correlation table set out in Annex II to that regulation.
3        Article 8 of Regulation No 207/2009 provides:
‘1.      Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered:
…
(b)      if because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark.
2.      “Earlier trade marks” within the meaning of paragraph 1 means:
…
(c)      trade marks which, on the date of application for registration of the Community trade mark, or, where appropriate, of the priority claimed in respect of the application for registration of the Community trade mark, are well known in a Member State, in the sense in which the words “well known” are used in Article 6 bis of the Paris Convention.
…
4.      Upon opposition by the proprietor of a non-registered trade mark or of another sign used in the course of trade of more than mere local significance, the trade mark applied for shall not be registered where and to the extent that, pursuant to the Community legislation or the law of the Member State governing that sign:
(a)      rights to that sign were acquired prior to the date of application for registration of the Community trade mark, or the date of the priority claimed for the application for registration of the Community trade mark;
(b)      that sign confers on its proprietor the right to prohibit the use of a subsequent trade mark.
5.      Furthermore, upon opposition by the proprietor of an earlier trade mark within the meaning of paragraph 2, the trade mark applied for shall not be registered where it is identical with or similar to the earlier trade mark and is to be registered for goods or services which are not similar to those for which the earlier trade mark is registered, where in the case of an earlier Community trade mark the trade mark has a reputation in the Community and, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the trade mark applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.’
4        Article 135(4) of the Rules of Procedure of the General Court provides that the parties’ pleadings may not change the subject-matter of the proceedings before the Board of Appeal.
Background to the dispute
5        On 17 November 2005, Mr Gulbenkian filed an application for registration of a Community trade mark with OHIM pursuant to Regulation No 40/94.
6        The mark for which registration was sought is the word sign ‘GULBENKIAN’.
7        The goods and services in respect of which registration of the mark was sought are in Classes 4, 33, 35 to 37, 41, 42 and 44 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:
–        Class 4: ‘Fuels, petroleum (raw or refined), industrial oils and grease and lubricants’;
–        Class 33: ‘Alcoholic beverages (except beers)’;
–        Class 35: ‘Consultancy, advice on the provision of services in the field of management (business management); institutional support and support networks and macro-economics and information technologies, all related to business’;
–        Class 36: ‘Insurance; financial affairs; monetary affairs; real estate affairs’;
–        Class 37: ‘Service stations (petrol stations)’;
–        Class 41: ‘Educational services’;
–        Class 42: ‘Technical consultancy in the field of agriculture, livestock, forestry, game, and nature conservation and rural development; development of studies and projects, consultancy, consultancy in the field of engineering, in particular for the manufacturing, processing, petroleum and gas, and energy industries, environment, transport, public works, engineering work and surveys on project management, quality, maintenance and materials, industrial security and recuperation of installations, in particular quality management and building enterprises’; and
–        Class 44: ‘Healthcare’.
8        The Community trade mark application was published in Community Trade Marks Bulletin No 7/2007 of 19 February 2007.
9        On 18 May 2007, FCG filed a notice of opposition pursuant to Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009) against registration of the mark applied for in respect of all the goods and services referred to in paragraph 7 above.
10      The opposition was based on the following earlier well-known mark and rights:
–        the well-known mark FUNDAÇÃO CALOUSTE GULBENKIAN, covering the following goods and services: ‘Arts (plastic arts and music); charity (health and human development); science (research and promotion); education (support and development); technical and management services related to the oil industry’ (‘the well-known mark’);
–        the company name FUNDAÇÃO CALOUSTE GULBENKIAN, used for all of the areas listed in the first indent above (‘the company name’);
–        the Portuguese registrations No 5351 and No 5352 (‘the logos’), covering all of the goods and services listed in the first indent above and consisting of the following graphic sign:
11      The grounds relied on in support of the opposition were those set out in Article 8(1)(b) and (4) of Regulation No 40/94 (now Article 8(1)(b) and (4) of Regulation No 207/2009).
12      By decision of 28 May 2010, the Opposition Division of OHIM (‘the Opposition Division’) partially upheld the opposition in so far as it was based on Article 8(1)(b) of Regulation No 207/2009. The Opposition Division found that FCG had established that the well-known trade mark existed with regard to arts (plastic arts and music), charity (health and human development) and education (support and development) and that consequently there was a likelihood of confusion between the well-known mark and the mark applied for with regard to the educational services within Class 41 of the Nice Agreement and to healthcare within Class 44 of that Agreement.
13      By contrast, the Opposition Division rejected the opposition by FCG in so far as it was based on Article 8(4) of Regulation No 207/2009. In that regard, first, the Opposition Division considered that FCG had not provided evidence that the logos met all of the conditions set out in Article 8(4) of Regulation No 207/2009, in particular the requirement that the signs to which this provision refers must give their proprietors the right to oppose the use of a more recent mark. Secondly, the Opposition Division took the view that FCG had also failed to submit evidence that the company name had been used, before the date on which the application for registration of the mark GULBENKIAN was lodged, in the field of science (research and promotion) or technical and management services related to the oil industry.
14      On 27 July 2010, FCG filed an appeal with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division of 28 May 2010.
15      By the contested decision, the Board of Appeal partially upheld FCG’s appeal, in respect of services relating to development of studies and projects, as well as to consultancy, within Class 42 of the Nice Agreement. The Board of Appeal found, pursuant to Article 8(4) of Regulation No 207/2009, that for these services there was a likelihood of confusion between the company name and the mark at issue, as FCG had submitted evidence of use of the company name in the field of biomedicine before the date on which the application for registration of that mark was filed.
16      By contrast, the Board of Appeal found, as the Opposition Division had done, that FCG had not proved the use of the earlier mark or the company name in particular as regards technical and management services related to the oil industry. Moreover, the Board of Appeal upheld the finding of the Opposition Division that FCG had not submitted evidence that the logos gave their proprietor the right to prohibit the use of a more recent mark.
The procedure before the General Court and the judgment under appeal
17      By application lodged at the Registry of the General Court on 10 October 2011, FCG brought an action for the annulment of the contested decision in so far as the Board of Appeal had not upheld its opposition in its entirety. In support of its action, FCG relied on a single plea in law, alleging infringement of Article 8(1)(b), (4) and (5) of Regulation (EC) No 207/2009 and Article 16(3) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), which constitutes Annex 1C to the Agreement establishing the World Trade Organisation (WTO) signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1).
18      In the first place, in the judgment under appeal, the General Court ruled on pleas of inadmissibility raised by OHIM relating to certain heads of claim in the application.
19      In this regard, referring, in paragraph 27 of the judgment under appeal, to Article 135(4) of its Rules of Procedure and the relevant case-law, the General Court rejected the single plea as inadmissible in so far as it alleged infringement of Article 8(5) of Regulation No 207/2009 and Article 16(3) of the agreement referred to in paragraph 17 above. In paragraph 28 of the judgment under appeal, that Court held that, as FCG had not relied on infringement of those provisions either before the Opposition Division or before the Board of Appeal, its arguments alleging infringement of those provisions and alleging that the reputation of its earlier rights should have led the Board of Appeal to uphold its opposition in its entirety, including in respect of the dissimilar goods and services, had to be rejected as inadmissible.
20      In paragraph 29 of the judgment under appeal, the General Court held that the evidence adduced by FCG for the first time before it in support of the arguments referred to in paragraph 19 above should likewise be rejected as inadmissible. Paragraph 25 of the judgment under appeal indicated that that evidence comprised a number of Portuguese judicial decisions which had become final.
21      In the second place, as to the substance, the General Court first recalled that FCG’s opposition to the registration of the mark at issue had already been partially upheld on the basis of Article 8(1)(b) and (4) of Regulation No 207/2009, FCG having proved the existence of the well-known mark as regards arts (plastic arts and music), charity (health and human development) and education (support and development) and also the use of the company name in the field of biomedicine. It went on to demarcate the scope of the dispute brought before it as follows:
‘35      It is necessary to uphold the Board of Appeal’s assessments in the contested decision, which are, moreover, not disputed by [FCG], as regards the definition of the relevant public, the finding that the signs at issue are similar, the finding that there is no similarity between the goods and services covered by the mark [at issue] and those in respect of which the Board of Appeal found that the use of the well-known mark and the company name had been proved and the finding that [FCG] had not established that the logos satisfied the conditions set out in Article 8(4) of Regulation No 207/2009.
36      By contrast, it is necessary to examine the arguments by which [FCG] seeks to show that the Board of Appeal should have upheld its opposition to a greater extent.
37      Consequently, given that it has been held … that [FCG] was not entitled to submit, for the first time before the Court, either arguments alleging that the reputation of its earlier rights should have precluded registration of the mark applied for irrespective of the goods and services in respect of which the existence of those earlier rights had been proved or items of evidence that were not submitted in the course of the proceedings before OHIM, it is necessary to examine whether [FCG] is justified in claiming that, having regard to the items of evidence that were submitted in due time, the Board of Appeal erred in finding that the use of the well-known mark and the company name had not been proved as regards technical and management services related to the oil industry.’
22      With regard to FCG’s argument that the Board of Appeal had erred in finding that the use of the well-known mark and the company name had not been proved as regards technical and management services related to the oil industry, the General Court held, in paragraph 37 of the judgment under appeal, as a preliminary point, that no account should be taken of evidence which FCG had submitted for the first time before it and which FCG acknowledged not having submitted to the Board of Appeal.
23      Next, the General Court found that, in its appeal, FCG had criticised generally the assessment of the evidence undertaken by the Opposition Division and the Board of Appeal. In this respect, the Court observed, in paragraph 41 of the judgment under appeal, that the Board of Appeal had concluded on the basis of a number of items of evidence that FCG was carrying out a commercial activity in the oil industry sector through its subsidiary P and that the possibility could not be excluded that consumers might establish a link between the company name and the oil sector. The Court added that, by contrast, the Board of Appeal had found that there was no evidence which made it possible for it to conclude that FCG, whether through the intermediary of that subsidiary or directly, offered third companies technical and management services related to the oil industry, that is to say the services referred to by the applicant in its notice of opposition.
24      Lastly, the General Court held, in paragraph 43 of the judgment under appeal, that FCG had not put forward in the proceedings before the Court any argument or any evidence already submitted in the course of the proceedings before OHIM that made it possible to prove the existence of the well-known mark or the use of the company name in respect of technical and management services related to the oil industry, despite the fact that it was required to submit such evidence, in view of the way in which it had defined the earlier rights on which it based its opposition.
25      In the third place, in paragraph 45 of the judgment under appeal, the General Court upheld the Board of Appeal’s assessment that the goods and services covered by the mark at issue in respect of which the opposition had not been upheld did not bear any similarity to the goods and services in respect of which the existence of the earlier rights of which FCG was the proprietor had been recognised as proved.
26      Consequently, in paragraph 46 of the judgment under appeal, the General Court stated that FCG was not justified in claiming that, in respect of the goods and services covered by the mark at issued which did not bear any degree of similarity to the goods and services in respect of which its earlier rights had been proved, the Board of Appeal had erred in rejecting its opposition both on the basis of Article 8(1) of Regulation No 207/2009, as regards the well-known mark, and on the basis of Article 8(4) of that regulation, as regards the company name.
27      Having regard to all of the above considerations, the General Court dismissed the action.
Form of order sought by FCG
28      FCG claims that the Court should:
–        set aside the judgment under appeal,
–        annul the contested decision in so far as it concerns the goods and services in relation to which the opposition was dismissed, and
–        order OHIM and Mr Gulbenkian to pay the costs.
The appeal
29      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.
30      Article 181 should be applied to the present appeal.
31      In support of this appeal, FCG relies on four grounds of appeal. The first alleges an error of law by the General Court, in that it is said to have wrongly rejected as inadmissible the evidence submitted for the first time before it. The second and third grounds of appeal allege that the General Court infringed Article 8(1)(b) of Regulation No 207/2009 and erred in its application of the case-law relating to the global assessment of the likelihood of confusion. The fourth ground of appeal alleges that the General Court wrongly refused to take into account the evidential value of Portuguese judicial decisions. It is appropriate to consider, consecutively, the first ground of appeal, the fourth ground of appeal, and then the second and third grounds of appeal together.
The first ground of appeal
Arguments of FCG
32      FCG claims that the General Court committed an error of law in rejecting as inadmissible the evidence adduced for the first time before it, in particular the decisions of the Tribunal do Comércio de Lisboa (Lisbon Commercial Court) of 18 January 2012 and 17 July 2013.
33      FCG argues in this context that the evidence submitted to the General Court was not exclusively intended to establish the reputation of the mark pursuant to Article 8(5) of Regulation No 207/2009, which FCG concedes that it did not claim to have been infringed before the Board of Appeal, but was intended to support the arguments as a whole presented in the proceedings before the General Court. For example, FCG indicates that, while it is true that the evidence in question demonstrates the reputation of the mark FUNDAÇÃO CALOUSTE GULBENKIAN, it also establishes that FCG’s rights in Portugal are well-known and distinctive. Accordingly, the General Court was wrong to conclude that that evidence might change the subject-matter of the proceedings within the meaning of Article 135(4) of its Rules of Procedure, in that the subject of this dispute concerned the existence of a likelihood of confusion between the marks at issue as regards all the goods and services which they cover in Portugal.
34      Moreover, FCG argues, as regards the admissibility of the evidence submitted for the first time before the General Court, that the case-law ought to be applied by analogy which permits the production, before the Boards of Appeal of OHIM, of evidence which has not previously been submitted to OHIM’s Opposition Division.
35      With regard, more particularly, to the Portuguese judicial decisions referred to in paragraph 32 above, FCG adds that it was not possible for FCG to produce them in the proceedings before the Board of Appeal, because they were delivered only after the closure of those proceedings. FCG contends, moreover, that their relevance to the subject-matter of the dispute has been proven, as they contain considerations which make it possible to establish the existence of a likelihood of confusion between the marks at issue.
Findings of the Court
36      As regards the evidence adduced by FCG for the first time before the General Court, in paragraph 38 of the judgment under appeal that Court excluded from the proceedings a number of documents which FCG itself acknowledged had not been submitted to the Board of Appeal and which had the purpose of demonstrating the use of the well-known mark and the company name as regards technical and management services related to the oil industry.
37      The General Court also noted, in paragraph 25 of the judgment under appeal, that FCG relied on a number of Portuguese judicial decisions in support of the argument seeking to prove the reputation of its earlier rights within the meaning of Article 8(5) of Regulation No 207/2009.
38      It is sufficient to recall that, under Article 135(4) of the Rules of Procedure of the General Court, the parties’ pleadings may not change the subject-matter of the proceedings before the Board of Appeal. Moreover, according to the case-law of the Court of Justice, the purpose of an action before the General Court is to review the lawfulness of decisions of the Boards of Appeal of OHIM within the meaning of Article 65(2) of Regulation No 207/2009. It follows from that provision that facts which were not relied on by the parties before OHIM cannot be relied on at the stage of the appeal before the General Court. It also follows from that provision that the General Court cannot re-evaluate the factual circumstances in the light of evidence adduced for the first time before it. The lawfulness of a decision of a Board of Appeal of OHIM must be assessed in the light of the information available to it when it adopted that decision (see judgment in Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraphs 136 to 138).
39      It follows that the General Court correctly applied the case-law cited in the previous paragraph in excluding the evidence which, not having previously been adduced before the Board of Appeal, was inadmissible and hence could not be relied on for the purpose of calling into question the lawfulness of the contentious decision.
40      With regard to FCG’s claim that the Portuguese judicial decisions referred to in paragraph 37 above had the purpose not only of demonstrating the reputation of the earlier mark but also of substantiating the whole argument put forward in its application, this claim is contradicted by the documents in the case at first instance. It emerges, in particular, from the observations of FCG submitted to the General Court on 10 January 2014 in reply to the questions put by the Court in writing that ‘the documents submitted … regard[ed] the reputation of the earlier mark’.
41      Consequently, the General Court did not err in law in holding, pursuant to Article 135(4) of its Rules of Procedure, that those Portuguese judicial decisions had been produced in support of a plea in law which could have changed the subject-matter of the proceedings.
42      In the light of the foregoing, the first ground of appeal must be rejected as being manifestly unfounded.
The fourth ground of appeal
43      In this ground of appeal, FCG criticises the General Court for having refused to take into account the evidential value of the Portuguese judicial decisions produced for the first time before it.
44      However, since the first ground of appeal, which sought from the Court an acknowledgment of the admissibility of these judicial decisions as evidence, has been rejected as manifestly unfounded, the fourth ground can likewise only be rejected as manifestly unfounded.
The second and third grounds of appeal
Arguments of FCG
45      In its second ground of appeal, FCG criticises the General Court for not having, in accordance with its case-law, performed a global assessment of the likelihood of confusion between the marks at issue, taking account of all the relevant factors, namely the degree of knowledge of the earlier mark on the relevant market, the level of attention of the relevant public and the association which that public might perceive between the two marks.
46      According to FCG, because of its failure to take account of all the relevant factors, the General Court wrongly held that there was no likelihood of confusion with regard to any of the goods and services covered by the mark whose registration was sought, and particularly with regard to those related to the oil industry. FCG also claims that the General Court wrongly upheld the Board of Appeal’s assessment that the goods and services covered by the mark at issue in relation to which the opposition had been rejected did not bear any similarity to the goods and services in respect of which the existence of FCG’s earlier rights had been proved.
47      In its third ground of appeal, FCG claims that, in considering the application, the General Court also failed to recognise the interdependence between the various factors which ought to have been taken into account for the purpose of evaluating likelihood of confusion, and recalls, in this context, the criteria established in the case-law with regard to the concept of likelihood of confusion.
Findings of the Court
48      As the Court has held on numerous occasions, for the purposes of applying Article 8(1)(b) of Regulation No 40/94, the likelihood of confusion presupposes both that the mark applied for and the earlier mark are identical or similar, and that the goods or services covered in the application for registration are identical or similar to those in respect of which the earlier mark was registered. These conditions are cumulative (see judgment in Gateway v OHIM, C‑57/08 P, EU:C:2008:718, paragraph 45 and the case-law cited).
49      Thus it is only to the extent that these conditions are met that it is necessary to establish whether the General Court correctly applied the settled case-law of the Court of Justice, according to which the existence of a likelihood of confusion on the part of the public must be assessed globally, taking account of all the relevant factors of the particular case (see judgments in OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 34; Aceites del Sur-Coosur v Koipe, C‑498/07 P, EU:C:2009:503, paragraph 59; and Union Investment Privatfonds v UniCredito Italiano, C‑317/10 P, EU:C:2011:405, paragraph 45), with that global assessment implying, likewise according to the case-law of the Court of Justice, some interdependence between the factors taken into account (order in Przedsiębiorstwo Handlowe Medox Lepiarz v OHIM, C‑91/14 P, EU:C:2014:2261, paragraph 23).
50      It emerges from paragraph 43 of the judgment under appeal that, as regards management and technical services relating to the oil industry, the evidence submitted by FCG before the Board of Appeal, and that which it submitted to the General Court and which the latter ruled admissible, was not deemed sufficient to establish the existence of the well-known mark and the use of the company name in connection with those services.
51      In paragraph 45 of the judgment under appeal, the General Court upheld the assessments by the Board of Appeal in the contested decision to the effect that the goods and services covered by the mark GULBENKIAN in relation to which the opposition was rejected did not bear any similarity to the goods and services in relation to which the existence of FCG’s earlier rights had been recognised as established. The General Court also observed that those assessments had, moreover, not been contested by FCG.
52      In so far as FCG now seeks in the present appeal proceedings to contest the assessments made by the General Court concerning the similarity between the goods and services at issue, it must be observed that, according to Article 170(1) of the Rules of Procedure of the Court of Justice, the subject-matter of the proceedings before the General Court may not be changed in the appeal. The jurisdiction of the Court of Justice in an appeal is limited to review of the findings of law on the pleas argued before the court of first instance. A party may not, therefore, put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court, since to do so would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court (see, in particular, judgments in Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 59, and Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603, paragraph 34).
53      Consequently, it is clear that the cumulative conditions necessary for the purpose of an assessment by the General Court of the likelihood of confusion in relation to all the relevant factors were not met, as FCG had established neither the existence of the well-known mark, as regards management and technical services related to the oil industry, nor the similarity between the goods and services covered by the mark at issue for which the opposition had been rejected and the goods and services in respect of which the existence of FCG’s earlier rights had been recognised as established.
54      It follows that the second and third grounds of appeal must be rejected as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
55      It follows from all the foregoing considerations that the appeal must be dismissed.
Costs
56      Under Article 137 of the Court’s Rules of Procedure, 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.
57      As the present order has been adopted prior to notification of the appeal to the defendant, and therefore before the latter could have incurred costs, FCG will be ordered to bear its own costs.
On those grounds, the Court (Eighth Chamber) hereby orders:
1.      The appeal is dismissed.
2.      Fundação Calouste Gulbenkian is ordered to bear its own costs.
[Signatures]
* Language of the case: English.