Case C-361/01 P: Appeal brought on 24 September 2001 by Christina Kik against the judgment delivered on 12 July 2001 by the Fourth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-120/99 between Christina Kik, supported by the Hellenic Republic and the Office for Harmonisation in the Internal Market (Trade Marks and Designs), supported by the Kingdom of Spain and the Council of the European Union
Date: 2001-11-24
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), equal treatment, official language

24.11.2001

EN

Official Journal of the European Communities

C 331/11

Appeal brought on 24 September 2001 by Christina Kik
against the judgment delivered on 12 July 2001 by the
Fourth Chamber (Extended Composition) of the Court of
First Instance of the European Communities in Case
T-120/99 between Christina Kik, supported by the Hellenic
Republic and the Office for Harmonisation in the Internal
Market (Trade Marks and Designs), supported by the
Kingdom of Spain and the Council of the European Union

(Case C-361/01 P)

(2001/C 331/17)

An appeal against the judgment delivered on 12 July 2001 by
the Fourth Chamber (Extended Composition) of the Court of
First Instance of the European Communities in Case T-120/99
between Christina Kik, supported by the Hellenic Republic,
and the Office for Harmonisation in the Internal Market (Trade
Marks and Designs), supported by the Kingdom of Spain and
the Council of the European Union was brought before the
Court of Justice of the European Communities on 24 Septem-
ber 2001 by Ms Kik, represented by E.H. Pijnacker Hordijck
and S.B. Noë, lawyers, the other parties to the proceedings
being the Office for Harmonisation in the Internal Market
(Trade Marks and Designs, ‘OHIM’), represented by O. Montalto
and J. Miranda de Sousa, acting as Agents, and J. Bourgeois,
Lawyer, the Hellenic Republic, represented by K. Samoni-
Randou and S. Vodina, acting as Agents, the Kingdom of
Spain, represented by S. Ortiz Vaamonde, acting as Agent, and
the Council of the European Union, represented by G. Houttin
and A. Lo Monaco, acting as Agents.

The appellant claims that the Court should:

— set aside the contested judgment (1) of the Court of First

Instance,

— annul the decision of the Board of Appeal of the Office
for Harmonisation in the Internal Market of 19 March
1999,

— order the Office for Harmonisation in the Internal Market
to pay the costs, including the costs incurred before the
Court of First Instance.

Pleas in law and main arguments

— Misinterpretation of Article 115 of Regulation (EC)
No 40/94 (2), the Court of First Instance erred in its
understanding that those rules mean that all applications
are to be dealt with in one of the working languages of
the Office.

— Breach of the law, in particular Article 6 EC: just as, in
accordance with this provision of the Treaty, the Member
States are obliged, in the field of language, to treat their
own nationals and those of other Member States quite
equally in situations governed by Community law, so,
according to the appellant, Article 6 a fortiori requires
the Community legislature to treat all citizens of the
Union quite equally. Since, under the rules governing
languages introduced by Article 115 of Regulation (EC)

No 40/94, an application submitted in Dutch is never
dealt with in that language and all opposition, revocation
the
or invalidity proceedings take place in one of
Office’s working languages, the appellant submits that by
introducing those rules governing languages the Council
has failed to fulfil its obligation to treat all the citizens of
the Union quite equally. A distinct group of citizens of
the Union, namely, nationals of Member States the
languages of which are not working languages of the
Office, are discriminated against in comparison with
nationals of
the other Member States because they
cannot follow proceedings before the Office in their own
language, which causes them to incur considerably higher
costs and entails a greater risk of inaccuracy.

In exercising their profession, trade mark agents of the
Member States whose language is not one of the working
languages of the Office are placed in a situation substan-
tially unfavourable to competition.
It will always be
cheaper, and therefore more attractive, for an applicant
for a Community trade mark to be assisted by a trade
mark agent whose mother tongue belongs to the Office’s
working languages. Consequently, the rules governing
languages leads to significant distortion of competition
on the Community market.

To the applicant’s mind, breach of the prohibition of
discrimination cannot be justified by considerations of
practical expediency, given the fundamental nature of the
principle of equal treatment.

Even if practical and financial considerations could justify
derogation from the principle of equal treatment, the fact
would remain that the rules governing languages laid
down in Regulation (EC) No 40/94 are not proportional.
The Council could have designated one official language
for all proceedings before the Office, for example English.
That would have had a considerably less discriminatory
effect and distorted the market considerably less than the
rules governing languages in question. In the appellant’s
there is no reasonable justification for less
opinion,
favourable treatment of, for example, Dutch, which is
spoken by more than 20 million citizens of the Union, in
relation to Spanish or Italian.

Finally, the fact that the Council adopted Regulation (EC)
No 40/94 unanimously cannot constitute a factor of
any consequence. The ‘rule of
implies that the
Community legislature is also subject to the law.

law’

In the alternative: at the very least, the second sentence of
subparagraph 4 is unlawful. This sentence is also contrary
to the principle which forms the basis of subparagraph 1
and of the first sentence of subparagraph 4 namely, that
the language used for filing the application is to be the
language of the proceedings. The second sentence of
subparagraph 4, as is clear from the settled practice of
the Office, deprives that principle of all meaning. The
various provisions of Article 115 are, consequently,
mutually inconsistent.

(1) Not yet published.
(2) Council Regulation (EC) No 40/94 on the Community trade mark

(OJ L 11 of 14.1.1994, p. 11).