ORDER OF THE VICE-PRESIDENT OF THE COURT

30 March 2022 ( )

(Appeal – Interim measures – Representation – No capacity to act as a representative before the European Union Intellectual Property Office (EUIPO) – Urgency – Serious and irreparable damage – No need to adjudicate)

In Case C‑703/21 P(R),

APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 19 November 2021,

Giovanna Paola Girardi, residing in Madrid (Spain), represented by G. Macías Bonilla, abogado,

appellant,

the other party to the proceedings being:

European Union Intellectual Property Office (EUIPO), represented by A. Söder and G. Predonzani, acting as Agents,

defendant at first instance,

THE VICE-PRESIDENT OF THE COURT

after hearing the Advocate General, M. Szpunar,

makes the following

Order

1 By her appeal, Ms Giovanna Paola Girardi seeks to have set aside the order of the President of the General Court of the European Union of 20 October 2021, Girardi v EUIPO (T‑497/21 R, not published, ‘the order under appeal’, EU:T:2021:725), by which the General Court dismissed her application for interim measures seeking, first, suspension of operation of the decision of the European Union Intellectual Property Office (EUIPO) of 14 June 2021 concerning her capacity to act as a representative before EUIPO (‘the decision at issue’), and, secondly, an order that EUIPO refrain from applying the measure set out in Annex I to Section 5 of Part A of the Guidelines for examination of European Union trade marks relating to professional representation by Spanish lawyers (‘the measure at issue’), pending delivery of the judgment in Case T‑497/21.

Background to the dispute

2 The background to the dispute is set out in paragraphs 1 to 7 of the order under appeal. It can, for the purposes of the present interlocutory proceedings, be summarised as follows.

3 Ms Girardi is a lawyer at the Madrid Bar (Spain), specialising in European Union intellectual property law.

4 On 3 June 2021, Ms Girardi filed an application for a declaration of invalidity of a trade mark before EUIPO in the name of a client whose legal domicile is outside the European Economic Area (EEA).

5 By letter of 14 June 2021, EUIPO notified Ms Girardi of an irregularity concerning her capacity to act as a representative before EUIPO. EUIPO stated that, in Spain, lawyers can represent only clients who have their permanent residence in the European Union. It explained that clients who have their permanent residence outside the European Union must be represented by a duly authorised representative, in accordance with Annex I to Section 5 of Part A of the Guidelines for examination of European Union trade marks. EUIPO added that only a professional agent with the title of ‘official intellectual property agent’, and not a lawyer, may represent such clients.

6 On 16 June 2021, the appellant lodged a complaint against the decision at issue.

The procedure before the General Court and the order under appeal

7 By application lodged at the General Court Registry on 14 August 2021, Ms Girardi brought an action for, inter alia, annulment of the decision at issue.

8 By separate document lodged at the General Court Registry on the same day, the appellant brought an application for interim measures seeking, first, suspension of operation of the decision at issue and, secondly, an order that EUIPO refrain from applying the measure at issue pending delivery of the judgment in Case T‑497/21.

9 By the order under appeal, the President of the General Court dismissed that application for interim measures.

10 In paragraph 18 of that order, he considered that it was appropriate to examine whether the condition relating to urgency was satisfied.

11 To that end, the President of the General Court examined, in the first place, in paragraphs 23 to 28 of the order under appeal, Ms Girardi’s argument that the decision at issue, in so far as it deprives her of clients established outside the EEA, who accounted for approximately 80% of her activity, causes her serious and irreparable damage.

12 In that regard, he found that the damage alleged was of a purely financial nature and that, in principle, financial compensation for that damage could therefore be obtained subsequently. He held that the appellant had failed to provide any specific and precise information about her financial situation, supported by detailed documentation, to prove that that damage was serious and irreparable.

13 In the second place, the President of the General Court rejected Ms Girardi’s argument alleging a foreseeable loss of confidence on the part of her clientele. To that end, he held, in paragraph 29 of the order under appeal, that the damage alleged was purely hypothetical. He also held, in paragraph 30 of that order, that it was not certain that EUIPO’s interpretation of the appellant’s capacity to represent clients not established in the EEA was definitive.

14 In the third place, the President of the General Court rejected, in paragraphs 31 and 32 of that order, the appellant’s arguments that the decision at issue adversely affects her clients and other Spanish lawyers, on the ground that those arguments relate to alleged infringements of the rights of third parties.

Forms of order sought and the procedure before the Court

15 Ms Girardi claims that the Court should:

– set aside the order under appeal;

– suspend operation of the decision at issue pending delivery of the judgment in Case T‑497/21;

– order EUIPO to refrain from applying the measure at issue pending delivery of the judgment in that case; and

– order EUIPO to pay all the costs of the proceedings.

16 EUIPO contends that the Court should:

– declare that the appeal has become devoid of purpose and that there is therefore no longer any need to adjudicate; and

– order Ms Girardi to pay the costs.

17 After being requested to do so by the Court Registry, pursuant to Article 149 of the Rules of Procedure of the Court of Justice, Ms Girardi submitted, on 12 January 2021, her observations on EUIPO’s arguments that there is no longer any need to adjudicate on the appeal.

On the need to adjudicate

Arguments

18 EUIPO submits that the appeal has become devoid of purpose and that there is therefore no longer any need to adjudicate on it. It contends that Ms Girardi’s situation changed after the order under appeal was adopted. First, by letter of 3 November 2021, EUIPO acknowledged the admissibility of the application for a declaration of invalidity referred to in paragraph 4 above. Secondly, by letter of 23 November 2021, EUIPO retracted the decision at issue.

19 In those circumstances, it is argued, Ms Girardi no longer has an interest in the decision at issue being suspended, since such suspension has become impossible. Furthermore, there is no justification or urgency for the suspension of the measure at issue. It follows that the present appeal is not capable of procuring an advantage for the appellant and that there is therefore no longer any need to adjudicate on it.

20 Ms Girardi submits that, at most, the letter of 23 November 2021 entails ‘some sort of suspension’ of EUIPO’s original position. In addition, she states that her action for annulment before the General Court seeks annulment of the decision at issue and a finding that the measure at issue is unlawful, but that there is still a need to obtain interim protection against the application of that measure.

21 In addition, the appellant invokes a series of arguments intended to show that the letter of 14 June 2021 expressed a decision of EUIPO and that that decision was unlawful. The fact that EUIPO reserves the right to review its position at any time warrants a ruling by the Court in order to resolve the legal uncertainty in which lawyers established in Spain find themselves. New decisions adopted belatedly by EUIPO are intended, in reality, only to avoid the EU judicature examining the lawfulness of EUIPO’s practices.

Assessment

22 It should be borne in mind that, for a person to have an interest in bringing appeal proceedings, the appeal must be likely, if successful, to procure an advantage for that party (order of the President of the Court of 27 February 2002, Reisebank v Commission, C‑477/01 P(R), EU:C:2002:126, paragraph 21, and order of the Vice-President of the Court of 17 March 2016, EMA v Pari Pharma, C‑550/15 P(R), not published, EU:C:2016:196, paragraph 36).

23 In that regard, it is clear from the letter of 23 November 2021, produced by EUIPO as an annex to its written observations, that, by that letter, EUIPO retracted the decision at issue.

24 In those circumstances, the fact that EUIPO also stated, in that letter, that the retraction was without prejudice to its right to review Ms Girardi’s situation depending on the progress of the ongoing proceedings cannot be regarded as entailing a continuation of the effects of that decision.

25 Consequently, any setting aside of the order under appeal, in so far as, by that order, the President of the General Court dismissed the application for suspension of operation of that decision, is no longer capable of procuring an advantage for the appellant.

26 As regards the argument that it remains necessary to examine the appeal, in so far as it relates to the decision at issue, in order to prevent EUIPO from adopting a new decision in the future which limits Ms Girardi’s capacity to act as a representative before EUIPO, it is true that an appellant may retain an interest in seeking annulment of a decision which has ceased to have effect in order to avoid the risk that the unlawfulness alleged in respect of that decision will be repeated (see, to that effect, judgment of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 63 and the case-law cited).

27 Nevertheless, such a solution cannot, in any event, justify the examination of an application for interim measures seeking the suspension of operation of a decision which has ceased to have effect, since the purpose of the interlocutory proceedings is not to declare an EU measure unlawful, but to guarantee the full effectiveness of the definitive future decision in order to ensure that there is no lacuna in the legal protection provided by the Court (see, to that effect, order of the President of the Court of 18 May 2011, Council v Zhejiang Xinan Chemical Industrial Group, C‑337/09 P‑R, not published, EU:C:2011:314, paragraphs 44 and 45).

28 Therefore, since, in the course of the proceedings, Ms Girardi has lost her interest in pursuing the interlocutory proceedings in so far as they relate to the decision at issue, there is no longer any need to adjudicate on the claim that the order under appeal should be set aside in so far as, by that order, the President of the General Court dismissed the application for suspension of the operation of that decision.

29 As regards, on the other hand, the claims that the order under appeal should be set aside in so far as, by that order, the President of the General Court did not order EUIPO to refrain from applying the measure at issue, it should be pointed out that EUIPO has not retracted or repealed that measure and that it therefore remains applicable.

30 It follows that the retraction of the decision at issue does not mean that Ms Girardi’s appeal is no longer capable of procuring an advantage for her in so far as it relates to that measure.

31 Furthermore, EUIPO’s arguments that there is no justification or urgency for the suspension of the measure at issue are irrelevant in that regard, since they relate to the merits of the application for interim measures.

32 Accordingly, it is necessary to adjudicate on the present appeal in so far as it seeks to have set aside the decision of the President of the General Court to dismiss the appellant’s claim that EUIPO should be ordered to refrain from applying the measure at issue.

The appeal

Arguments

33 By her single ground of appeal, Ms Girardi submits, first, as regards paragraphs 23 to 28 of the order under appeal, that the damage which she alleged before the General Court is not purely financial. That damage also stems from the genuine loss of her professional capacity and from the serious damage to the prestige of the legal profession in Spain and to the principle of legal certainty.

34 The evidence adduced before the General Court was sufficient to establish a real risk of serious and irreparable damage, in so far as, inter alia, it proved that EUIPO’s conduct prevented Spanish lawyers from pursuing their profession.

35 In those circumstances, the appellant submits that it was not necessary for her to provide additional information or documentation relating to her financial situation, particularly as it was stated in the application that she managed a microenterprise and that 80% of her clients are established outside the EEA. The validity of the latter claim could, moreover, be shown by referring to the databases made available to the public by EUIPO.

36 Secondly, the appellant disputes the finding in paragraph 29 of the order under appeal that the damage resulting from her clientele’s loss of confidence was hypothetical. The appellant argues that that loss of confidence is certain, since EUIPO’s conduct is such as to create uncertainty as regards Ms Girardi’s capacity to represent her clients.

37 Thirdly, the President of the General Court erred in finding, in paragraph 30 of the order under appeal, that EUIPO has not yet adopted a definitive position. It is true that EUIPO has not yet taken a decision on certain arguments put forward by Ms Girardi. However, EUIPO’s position is based on the measure at issue and could not therefore be altered in the course of the proceedings, at least without the Spanish legislation being amended.

38 Furthermore, EUIPO is required, in accordance with Article 296 TFEU, to give reasons for its decisions. However, at no time did it provide reasons justifying the sudden change in its consistent practice. In those circumstances, the uncertainty of EUIPO’s position, which is clear from its exchanges with a number of Spanish lawyers, justifies the adoption of interim measures intended to ensure that the principle of legal certainty is observed.

39 Fourthly, the President of the General Court erred in rejecting, in paragraph 31 of the order under appeal, the appellant’s argument as regards the existence of damage to her clients and other Spanish lawyers.

40 Although the damage suffered by other Spanish lawyers does not concern her personally, Ms Girardi has a direct interest in those lawyers retaining their full capacity to practise. Furthermore, the damage suffered by her clients could cause her to incur civil and contractual liability.

41 Fifthly, the President of the General Court distorted the facts in paragraph 32 of the order under appeal, since Ms Girardi brought her action in order to defend not the rights of third parties, but her own rights.

42 EUIPO contends that the action for annulment brought before the General Court is inadmissible and that Ms Girardi’s single ground of appeal should be dismissed.

Assessment

43 In the first place, as is apparent from paragraph 23 of the order under appeal, the President of the General Court examined, in paragraphs 23 to 28 thereof, Ms Girardi’s line of argument that she is exposed to a risk of damage resulting from the fact that 80% of her clients are established outside the EEA.

44 It is explicitly clear from the application for interim measures that, by that line of argument, Ms Girardi claimed that the systematic failure to recognise her capacity to act as representative before EUIPO on behalf of clients established outside the EEA would, in view of the structure of her clientele, deprive her of up to 80% of her income base.

45 Therefore, first, it cannot legitimately be argued that the President of the General Court distorted the application for interim measures or erred in his legal characterisation in finding that the damage thus alleged is financial in nature.

46 Secondly, the argument that the measure at issue also causes the appellant damage arising from the genuine loss of her professional capacity and seriously compromises the prestige of the legal profession in Spain and the principle of legal certainty must be rejected as inadmissible.

47 In accordance with the Court’s settled case-law, since, in an appeal, review by the Court of Justice is confined to a review of the findings of law on the pleas and arguments debated before the General Court, a party may not raise for the first time before the Court of Justice pleas or arguments that it did not raise before the General Court (order of the Vice-President of the Court of 17 December 2020, Anglo Austrian AAB and Belegging-Maatschappij ‘Far-East’ v ECB, C‑207/20 P(R), not published, EU:C:2020:1057, paragraph 72 and the case-law cited).

48 As the President of the General Court noted in paragraph 21 of the order under appeal, Ms Girardi did not in any way claim, in her application for interim measures, that the measures adopted by EUIPO are such as to cause damage of the kind referred to in paragraph 46 above.

49 Thirdly, since the damage alleged by Ms Girardi, examined in paragraphs 23 to 28 of the order under appeal, is purely financial in nature, it should be borne in mind that, as the President of the General Court noted, in essence, in paragraph 26 of the order under appeal, where an application for interim measures is based on such damage, the interim measures sought are justified, in particular, if it appears that, without those measures, the party seeking them would be in a position that could imperil that party’s financial viability before final judgment is given in the main action in the light, inter alia, of the size and turnover of its undertaking and the characteristics of the group to which it belongs (order of the Vice-President of the Court of 30 November 2021, Land Rheinland-Pfalz v Deutsche Lufthansa, C‑466/21 P‑R, not published, EU:C:2021:972, paragraph 41 and the case-law cited).

50 In that context, the President of the General Court was right to find, in paragraph 27 of the order under appeal, that it was for Ms Girardi to provide the court hearing the application for interim measures with specific and precise information, supported by detailed documentation showing that her undertaking was in a position that could imperil its financial viability before final judgment is given in the main action and enabling an assessment to be made of the likely consequences if the measures sought are not granted (see, by analogy, order of the Vice-President of the Court of 30 November 2021, Land Rheinland-Pfalz v Deutsche Lufthansa, C‑466/21 P‑R, not published, EU:C:2021:972, paragraph 43 and the case-law cited.

51 Fourthly, in so far as the single ground of appeal must be understood as alleging that the President of the General Court erred in finding that Ms Girardi had failed to provide such information, it must be pointed out that it follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal lies on points of law only. The General Court has, therefore, exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence submitted to it. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (order of the Vice-President of the Court of 13 December 2021, Portugal v Commission, C‑547/21 P(R), not published, EU:C:2021:1007, paragraph 85 and the case-law cited).

52 Such distortion exists where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect. However, such distortion must be obvious from the documents on the Court’s file, without it being necessary to undertake a fresh assessment of the facts and the evidence. Furthermore, where an appellant alleges distortion of the evidence by the General Court, he or she must indicate precisely the evidence alleged to have been distorted by that court and show the errors of appraisal which, in his view, led to that distortion (order of the Vice-President of the Court of 13 December 2021, Portugal v Commission, C‑547/21 P(R), not published, EU:C:2021:1007, paragraph 86 and the case-law cited).

53 In the present case, while the appellant claims that the President of the General Court could have assessed her financial situation on the basis of the statement in the application for interim measures that she carried out her work within the framework of a ‘microenterprise’, it must be held, in the light of the imprecise nature of such a statement, which, moreover, was not accompanied by any supporting documentation, that the President of the General Court did not distort the evidence available to him by finding, in paragraph 28 of the order under appeal, that Ms Girardi had failed to provide specific and precise information, supported by detailed documentation, about her financial situation.

54 As regards the argument that the application and the information made available to the public by EUIPO proved that 80% of Ms Girardi’s clients were established outside the EEA, it must be held to be ineffective, since the President of the General Court did not in any way base his assessment on the fact that the claim made in that regard was not proved.

55 In the second place, in accordance with the case-law referred to in paragraphs 51 and 52 above, the argument that the damage resulting from the loss of confidence on the part of Ms Girardi’s clientele is certain must be rejected.

56 By that argument, Ms Girardi calls into question an assessment of fact made by the President of the General Court, without proving that that assessment is vitiated by a distortion of evidence.

57 In the third place, since, for the sufficient reason set out in paragraph 29 of the order under appeal, the President of the General Court rejected as purely hypothetical the damage resulting from the loss of confidence of Ms Girardi’s clientele and from the end of her microenterprise, it was only for the sake of completeness that he added, in paragraph 30 of that order, that EUIPO’s position regarding the appellant’s capacity to represent clients established outside the EEA had not been definitively established.

58 It follows that the arguments seeking to challenge paragraph 30 of that order must be rejected as ineffective.

59 In the fourth place, since the purpose of interlocutory proceedings is to avoid serious and irreparable damage to the applicant’s interests, and it is only the applicant’s interests which must, where the applicant is a private individual, be taken into consideration by the judge hearing the application for interim measures (see, to that effect, order of the President of the Court of 13 January 2009, Occhetto and Parliament v Donnici, C‑512/07 P(R) and C‑15/08 P(R), EU:C:2009:3, paragraphs 57 and 58 and the case-law cited), the President of the General Court did not err in law in finding, in paragraph 31 of the order under appeal, that Ms Girardi’s arguments based on damage allegedly suffered by her clients and by other Spanish lawyers should be rejected.

60 That assessment cannot, in the light of the case-law referred to in paragraph 47 above, be called into question by the alleged existence of a risk of Ms Girardi incurring civil and contractual liability vis-à-vis her clients, since at no stage during the proceedings at first instance did Ms Girardi claim such a risk.

61 In the fifth and last place, the argument that paragraph 32 of the order under appeal is vitiated by a distortion of the evidence cannot succeed.

62 That argument must be regarded as being based on a misreading of that order, since paragraph 32 thereof merely refers to the case-law of the General Court, without making a factual assessment.

63 In the light of the foregoing, the single ground submitted by Ms Girardi in support of her appeal must be dismissed as being, in part, unfounded and, in part, ineffective.

64 Consequently, the present appeal must be dismissed in so far as it seeks to have set aside the decision of the President of the General Court to dismiss the claim that EUIPO be ordered to refrain from applying the measure at issue.

Costs

65 Pursuant to Article 142 of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184 thereof, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.

66 Under Article 184(2) of those rules, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

67 In the present case, first, it must be found that the fact that there is no need to adjudicate on the appeal, in so far as it seeks to have set aside the decision of the President of the General Court to dismiss the application for suspension of operation of the decision at issue, is attributable to EUIPO.

68 Secondly, in so far as the appeal seeks to have set aside the decision of the President of the General Court to dismiss the claim that EUIPO should be ordered to refrain from applying the measure at issue, it should be noted that EUIPO has applied for costs and that Ms Girardi has been unsuccessful.

69 In those circumstances, it is appropriate to order each party to bear its own costs.

On those grounds, the Vice-President of the Court hereby orders:

1. There is no longer any need to adjudicate on the appeal in so far as it seeks to have set aside the decision of the President of the General Court of the European Union to dismiss the application for suspension of operation of the decision of the European Union Intellectual Property Office (EUIPO) of 14 June 2021 concerning Ms Giovanna Paola Girardi’s capacity to act as representative before EUIPO.

2. The appeal is dismissed as to the remainder.

3. Ms Girardi and the European Union Intellectual Property Office shall each bear their own costs.

Luxembourg, 30 March 2022.

A. Calot Escobar L. Bay Larsen