ORDER OF THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
13 May 2020 (*)
(EU trade mark — Opposition proceedings — Article 173(1) of the Rules of the procedure of the General Court — Intervention by the other party to the proceedings before the Board of Appeal — Representation by a lawyer who is not an independent third party — Refusal)
In Case T‑76/19,
Pontinova AG, established in Zurich (Switzerland), represented by L. Röh, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Crespo Carrillo, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Ponti & Partners, SLP, established in Barcelona (Spain),
ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 27 November 2018 (Case R 566/2018-5), relating to opposition proceedings between Ponti & Partners and Pontinova,
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
makes the following
Order
1        On 7 February 2019, the applicant, Pontinova AG, lodged at the Registry of the General Court an application against the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 November 2018 (Case R 566/2018-5) concerning opposition proceedings between Ponti & Partners, SLP and Pontinova AG.
2        On 23 May 2019, EUIPO lodged its response to the application at the Court Registry.
3        On 29 May 2019, the other party in the proceedings before the Board of Appeal of EUIPO, Ponti & Partners, lodged at the Court Registry its response to the application, which contained the sole signature of Mr Guerras Mazón.
4        By letter of the Court Registry of 9 January 2020, Ponti & Partners was requested, by way of a measure of organisation of procedure under Article 89(3) of the Rules of Procedure, to specify the nature of his professional relationship with Mr Guerras Mazón having regard to the requirement of independence of a lawyer.
5        By letter lodged at the Court Registry on 21 January 2020, Ponti & Partners replied to that measure of organisation of procedure. In that letter, it stated, in particular, first, that Mr Guerras Mazón is the head of the litigation department of Ponti & Partners and that, from the point of view of employment law, he is employed by the latter. Secondly, it stated that, as head of that department, Mr Guerras Mazón enjoys complete independence within that area of the firm’s activities. Thirdly, it pointed out that, in accordance with Spanish legislation regulating the employment relationships of lawyers working in individual or collective law firms, Mr Guerras Mazón is practising his profession as a lawyer independently of Ponti & Partners. Lastly, it stated that Ponti & Partners is not a company, but a law firm.
6        In accordance with Article 173(1) of the Rules of Procedure, a party to the proceedings before the Board of Appeal other than the applicant may participate, as intervener, in the proceedings before the Court by responding to the application in the manner and within the time limit prescribed.
7        In that regard, it should be recalled that, according to Article 173(4) of the Rules of Procedure, such an intervener is to be represented in accordance with the provisions of Article 19 of the Statute of the Court of Justice of the European Union.
8        Under the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court in accordance with the first paragraph of Article 53 of that Statute, parties other than the Member States, the institutions of the Union, the States which are parties to the Agreement on the European Economic Area (EEA) and the Surveillance Authority of the European Free Trade Association (EFTA), must be represented by a lawyer authorised to practise before a court of a Member State or of another State which is a party to the EEA.
9        It follows from the provisions referred to in paragraphs 7 and 8 above, and in particular the use of the word ‘represented’ in the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union, that, for the purposes of appearing before the General Court, an intervener, within the meaning of Article 173(1) of the Rules of Procedure is required to use the services of a lawyer who must be authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement (see, to that effect, order of 26 April 2018, Valencia Club de Fútbol v Commission, T‑732/16, not published, EU:T:2018:238, paragraph 13 and the case-law cited).
10      In that regard, it should be recalled that the lawyer’s role in the European Union legal order, which is derived from the legal traditions common to the Member States, and on which Article 19 of the Statute of the Court of Justice of the European Union is based, is that of collaborating in the administration of justice, and being required to provide, in full independence and in the overriding interests of justice, such legal assistance as his client requires (judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission, C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraph 23 and the case-law cited, and order of 5 October 2017, Hoyng Reimann Osterrieth Köhler Haft Monégier du Sorbier v EUIPO (We do IP.), T‑345/17, not published, EU:T:2017:710, paragraph 9).
11      The requirement of independence of a lawyer implies that there must be no employment relationship between the lawyer and his client. The concept of the independence of lawyers is determined not only positively, that is by reference to professional ethical obligations, but also negatively, that is to say, by the absence of an employment relationship (see, to that effect, judgment of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 63 and the case-law cited, and order of 30 May 2018, PJ v EUIPO — Erdmann & Rossi (Erdmann & Rossi), T‑664/16, EU:T:2018:517, paragraph 54). That requirement of independence is equally applicable if the represented party is a law firm.
12      In the present case, it is clear from the reply of 21 January 2020 to the measure of organisation of procedure of the Court that Mr Guerras Mazón is employed by Ponti & Partners. It follows that Mr Guerras Mazón did not satisfy the requirement of independence of the lawyer as defined by the case-law cited in the previous paragraph and, consequently, could not act as a legal representative of Ponti & Partners in the EU Courts as an independent third party.
13      That finding is not invalidated by the references made by Ponti & Partners to the Spanish legislation regulating the employment relationships of lawyers working in individual or collective law firms. Indeed, as pointed out in paragraph 11 above, professional ethical obligations are not enough in themselves to demonstrate that the requirement of independence is satisfied. Moreover, according to the case-law, the provisions relating to the representation of the non-privileged parties before the Court must be interpreted, as far as possible, autonomously, without reference to national law (order of 23 May 2011, Prezes Urzędu Komunikacji Elektronicznej v Commission, T‑226/10, EU:T:2011:234, paragraph 22).
14      It follows that the response of Ponti & Partners lodged at the Court Registry on 29 May 2019, was not submitted in accordance with the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union. Consequently, Ponti & Partners cannot be granted leave to participate in the proceedings in Case T‑76/19 as intervener under Article 173(1) of the Rules of Procedure.
Costs
15      Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment or order which closes the proceedings. Since the present order closes the proceedings as far as Ponti & Partners is concerned, a decision must be given on the costs relating to its intervention.
16      In accordance with Article 144 (6) and Article 134(1) of the Rules of Procedure, Ponti & Partners shall bear their own costs.
On those grounds:
THE PRESIDENT OF THE NINTH CHAMBER OF THE GENERAL COURT
hereby orders:
1.      Ponti & Partners, SLP is refused leave to participate in the proceedings in Case T‑76/19 as intervener under Article 173(1) of the Rules of Procedure of the General Court.
2.      Ponti & Partners shall bear its own costs.
Luxembourg, 13 May 2020.
E. Coulon
M.J. Costeira
Registrar
President
*      Language of the case: English.