ORDER OF THE COURT (Ninth Chamber)

11 October 2018 ( )

(Third-party proceedings)

In Case C‑118/18 P-TO,

APPLICATION initiating third-party proceedings under Article 42 of the Statute of the Court of Justice of the European Union, brought on 28 August 2018,

Harald Hochmann, residing in Vienna (Austria),

DAY Investments GmbH, established in Vienna,

represented by C. Hoppe, Rechtsanwalt,

applicants,

the other parties to the proceedings being:

Hochmann Marketing GmbH, formerly Bittorrent Marketing GmbH, established in Neu-Isenburg (Germany),

appellant,

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

BitTorrent Inc., established in San Francisco (United States),

intervener at first instance,

THE COURT (Ninth Chamber),

composed of C. Lycourgos, President of the Tenth Chamber, acting as President of the Ninth Chamber, E. Juhász and C. Vajda (Rapporteur), Judges,

after hearing the Advocate General, J. Kokott,

makes the following

Order

1 By application lodged at the Court Registry on 28 August 2018, Mr Harald Hochmann and DAY Investments GmbH initiated third-party proceedings against the order of 28 June 2018, Hochmann Marketing v EUIPO (C‑118/18 P, not published, ‘the contested order’, EU:C:2018:522).

2 By the contested order, the Court dismissed, as being, in part, manifestly inadmissible and, in part, manifestly unfounded, the appeal brought by Hochmann Marketing GmbH against the judgment of the General Court of the European Union of 12 December 2017, Hochmann Marketing v EUIPO — BitTorrent (bittorrent) (T‑771/15, not published, ‘the judgment at issue’, EU:T:2017:887), by which the General Court dismissed its action seeking the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 31 August 2015 (Case R 2275/2013–5), relating to revocation proceedings between BitTorrent Inc. and Bittorrent Marketing.

3 By their application initiating third-party proceedings, the applicants claim that the Court should:

– vary the contested order by setting aside the judgment at issue, on the one hand, and by annulling the decision of the Fifth Board of Appeal of EUIPO or, in the alternative, by referring the case back to the General Court, on the other hand;

– order EUIPO and the intervener at first instance to pay the costs, and

– order that the original of the decision on the third-party proceedings be annexed to the original of the contested order and that a note of that decision be made in the margin of the original of the contested order.

Admissibility of the application initiating third-party proceedings

4 According to Article 42 of the Statute of the Court of Justice of the European Union, Member States, institutions, bodies, offices and agencies of the Union and any other natural or legal persons may, in cases and under conditions to be determined by the Rules of Procedure of the Court, institute third-party proceedings to contest decisions rendered without their being heard, where those decisions are prejudicial to their rights.

5 Article 157(1)(b) and (c) of the Rules of Procedure provide that the application initiating third-party proceedings must state how the contested decision is prejudicial to the rights of the third party and indicate the reasons for which the third party was unable to take part in the original case.

6 It follows from those provisions that only persons who could have taken part in the original case are entitled to bring third-party proceedings against the decision in which that case resulted. Third-party proceedings are intended to enable persons who should or could have taken part in the original case to gain recognition of their rights (see, to that effect, order of 6 December 1989, C‑147/86-TO 1, not published, EU:C:1989:610, paragraphs 12 and 14).

7 Consequently, it is necessary to examine whether Mr Hochmann and DAY Investments, who have brought the present application initiating third-party proceedings against the contested order, could have taken part in the appeal brought against the judgment at issue, which gave rise to that order.

8 In that regard, in the first place, it should be stated that the applicants had not taken part in the proceedings which gave rise to the judgment at issue. Consequently, first, they did not have standing to bring an appeal against that judgment, since the second paragraph of Article 56 of the Statute of the Court of Justice restricts that standing solely to parties which have been unsuccessful, in whole or in part, in their submissions before the General Court. Second, nor did the applicants have the right, in the context of the appeal brought against the judgment at issue giving rise to the contested order, to submit a response under Article 172 of the Rules of Procedure.

9 As regards, in the second place, the question of whether the applicants could have intervened in that appeal, it should be recalled that the second paragraph of Article 40 of the Statute of the Court of Justice gives any person who can establish an interest in the result of a case submitted to the Court the right to intervene in that case.

10 According to settled case-law, the concept of an ‘interest in the result of a case’, within the meaning of the second paragraph of Article 40, must be defined in the light of the precise subject matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought, and not as an interest in relation to the pleas in law or arguments put forward. The wording ‘result of a case’ refers to the final decision sought, as set out in the operative part of the future judgment (order of the Vice-President of the Court of 6 October 2015, Cap Actions SNCM v Commission, C‑418/15 P(I), EU:C:2015:671, paragraph 5 and the case-law cited).

11 In that regard, it should be ascertained, in particular, whether the applicant for leave to intervene is directly affected by the contested measure and whether his interest in the result of the case is certain. Generally, an interest in the result of the case can be considered to be sufficiently direct only in so far as that result is capable of altering the legal position of the party applying to intervene (order of the Vice-President of the Court of 6 October 2015, Cap Actions SNCM v Commission, C‑418/15 P(I), EU:C:2015:671, paragraph 6 and the case-law cited).

12 As regards, first, Mr Hochmann, it is apparent from the application initiating third-party proceedings that he is the Managing Director and sole shareholder of Hochmann Marketing, the appellant in the appeal that gave rise to the contested order, which is described in that application as a ‘one-man business’. It is also apparent from that application that Mr Hochmann submits that he is adversely affected, directly and individually, by the contested order since the insolvency of Hochmann Marketing, which could ensue as a result of that order, would deprive him of his salary as Managing Director of that company and would lead to the loss of the capital which he has invested in the company.

13 Second, according to the application initiating third-party proceedings, DAY Investments was also founded by Mr Hochmann who is its Managing Director. It has been meeting Hochmann Marketing’s obligations so that that company can continue its dispute against the intervener at first instance. If, by its execution, the contested order caused Hochmann Marketing to become insolvent, DAY Investments could lose the sums loaned to Hochmann Marketing.

14 If the claims set out in the previous two paragraphs of this order are correct, Mr Hochmann’s economic and financial interests, as sole shareholder of Hochmann Marketing, and of DAY Investments, the creditor of the former, may admittedly be adversely affected by the effects of the contested order.

15 However, an adverse effect, even if significant, on the economic and financial interests of a shareholder of a company which is the appellant in an appeal before the Court, cannot be regarded as a direct, adverse effect on the interests of that shareholder, within the meaning of the case-law cited in paragraphs 10 and 11 of the present order, in so far as it does not alter his legal situation (see, to that effect, order of the Vice-President of the Court of 6 October 2015, Cap Actions SNCM v Commission, C‑418/15 P(I), EU:C:2015:671, paragraph 20). The same is true of such an adverse effect on the economic and financial interests of a creditor of the appellant in an appeal before the Court (see, to that effect, order of the Vice-President of the Court of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 19).

16 Such economic and financial interests, both of the shareholder and of the creditor, merge with those of the owned or debtor company, which is the appellant in the appeal at issue, and are affected only indirectly by the result of that appeal, through the consequences which that result has for that appellant (see, to that effect, orders of the Vice-President of the Court of 6 October 2015, Cap Actions SNCM v Commission, C‑418/15 P(I), EU:C:2015:671, paragraph 20, and of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 19).

17 As regards, more particularly, the creditor’s interests, the Court has held that the position is different if the result of the case is such as to alter the actual legal situation of a creditor who seeks leave to intervene in a dispute in support of its debtor. That is the case, in particular, if that result has an impact on the legal classification of a debt in national law, as the debt may be included in the secured liabilities or the unsecured liabilities of the debtor depending on the outcome of the proceedings before the Courts of the European Union (order of the Vice-President of the Court of 6 October 2015, Metalleftiki kai Metallourgiki Etairia Larymnis Larko v Commission, C‑362/15 P(I), EU:C:2015:682, paragraph 20 and the case-law cited). In the present case, it is not, however, stated in the application, let alone demonstrated, that upholding the contested order would lead to a change in the legal classification of the loan provided to Hochmann Marketing by DAY Investments.

18 It follows from the foregoing that the applicants could not have been granted leave to intervene in the context of the appeal which gave rise to the contested order.

19 Thus, since the applicants could not have participated in any capacity in that appeal, and in view of the case-law cited in paragraph 6 of the present order, they are not entitled to initiate third-party proceedings. Therefore, their application initiating third-party proceedings must be dismissed as being inadmissible.

Costs

20 Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the present order was adopted before the application initiating third-party proceedings was served on the other parties and, therefore, before the latter could have incurred any costs, the applicants should be ordered to bear their own costs.

On those grounds, the Court (Ninth Chamber) hereby orders:

1. The application initiating third-party proceedings is dismissed as being inadmissible.





2. Mr Harald Hochmann and DAY Investments GmbH shall bear their own costs.

Luxembourg, 11 October 2018.





A. Calot Escobar C. Lycourgos