Source: EURLEX
Language: en
Format: md

JUDGMENT OF THE GENERAL COURT (Second Chamber, Extended Composition)

25 September 2024 (
[\*1](#t-ECR_62020TJ0727_EN_01-E0001)
)

(Internal market – Representation before EUIPO – Entry on the list of professional representatives – Refusal of the request – Requester who is not a national of a Member State of the EEA – Exemption from the nationality requirement – Article 120(4)(b) of Regulation (EU) 2017/1001 – Concept of highly qualified professional – Principle of legal certainty – Right to be heard – Alteration – Lack of jurisdiction of the General Court)

In Case T‑727/20 RENV,

Nigar Kirimova, residing in Munich (Germany), represented by A. Parassina and A. García López, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by A. Söder, acting as Agent,

defendant,

THE GENERAL COURT (Second Chamber, Extended Composition),

composed of A. Marcoulli (Rapporteur), President, V. Tomljenović, R. Norkus, W. Valasidis and L. Spangsberg Grønfeldt, Judges,

Registrar: I. Kurme, Administrator,

having regard to the written part of the procedure,

having regard to the order of 21 April 2023, Kirimova v EUIPO (C‑306/22 P, not published, EU:C:2023:338),

further to the hearing on 23 February 2024,

gives the following

Judgment

| 1 | By her action based on Article 263 TFEU, the applicant, Ms Nigar Kirimova, seeks the annulment of Decision No ER 93419-2020 of the Executive Director of the European Union Intellectual Property Office (EUIPO) of 30 September 2020 concerning the request for an exemption submitted by her pursuant to Article 120(4)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark ([OJ 2017 L 154, p. 1](./../../../legal-content/EN/AUTO/?uri=OJ:L:2017:154:TOC)) (‘the contested decision’). |

Background to the dispute

| 2 | On 10 October 2019, the applicant submitted to EUIPO an application to be entered on the list of professional representatives at that office in accordance with Article 120 of Regulation 2017/1001. Being a national of the Republic of Azerbaijan, she simultaneously requested, on the basis of paragraph 4(b) of the same article, an exemption from the requirement to be a national of one of the Member States of the European Economic Area (EEA) as set out in Article 120(2)(a) of that regulation. |

| 3 | By letter of 30 January 2020, EUIPO informed the applicant that her request for an exemption was inadmissible. |

| 4 | By letters of 9 and 13 March 2020, essentially identical in content, the applicant submitted observations in response to EUIPO’s letter of 30 January 2020. |

| 5 | On 30 September 2020, by the contested decision, the Executive Director of EUIPO denied the applicant’s request for an exemption. |

Forms of order sought

| 6 | The applicant claims, in essence, that the Court should:   | – | annul the contested decision; |  | – | order EUIPO to grant her an exemption from the nationality requirement; |  | – | order EUIPO to enter her on the list of professional representatives; |  | – | order EUIPO to pay the costs. | |

| 7 | EUIPO contends that the Court should:   | – | dismiss the action as unfounded; |  | – | order the applicant to pay the costs. | |

Law

The applicant’s second and third heads of claim

| 8 | EUIPO contends that the General Court has no jurisdiction to issue directions to EU institutions or bodies and that the applicant’s second and third heads of claim are therefore inadmissible. EUIPO adds that the Court does not have the power to alter the contested decision, since such a power is provided for solely as regards decisions of the Boards of Appeal. According to EUIPO, the applicable legislative framework does not provide for the possibility of an appeal before a Board of Appeal against a decision such as the contested decision. |

| 9 | The applicant submits in response that she is asking the Court to alter the contested decision and that the Court has the power to alter EUIPO decisions under Article 72 of Regulation 2017/1001, a provision which, she argues, is applicable in the present case by analogy, as in the case which gave rise to the judgment of 13 July 2017, Rosenich v EUIPO ([T‑527/14](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2017%3A487&locale=en), [EU:T:2017:487](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2017%3A487)). Consequently, she claims, if the Court considers that the contested decision should be annulled, it will have to alter it. She maintains that that is also apparent from Article 103 of Regulation 2017/1001. In addition, the applicant submits that the Executive Director breached an ‘essential procedural requirement’ by denying her the possibility of lodging an appeal against the contested decision before a Board of Appeal of EUIPO. |

| 10 | In the application, by the second and third heads of claim, the applicant asks the Court to ‘order EUIPO’ to grant her an exemption from the nationality requirement and to enter her on the list of professional representatives. In the reply and in the observations following referral back to the Court, by the same heads of claim, she asks the Court to ‘alter the [contested] decision’ by granting her an exemption from the nationality requirement and by ordering EUIPO to enter her on the list of professional representatives. Irrespective even of whether, in so doing, the applicant has altered the scope of those heads of claim and whether such an alteration is admissible in the present case, it is sufficient to hold that, in both situations, those heads of claim must be rejected on account of the Court’s lack of jurisdiction to hear and determine them. |

| 11 | In the first place, in so far as those heads of claim should be regarded as asking the Court to order EUIPO to take certain measures, it must be recalled that, when exercising judicial review of legality under Article 263 TFEU, the Court has no jurisdiction to issue directions to the institutions, bodies, offices and agencies of the European Union, even where they concern the manner in which its judgments are to be complied with (see order of 26 October 1995, Pevasa and Inpesca v Commission, [C‑199/94 P and C‑200/94 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A1995%3A360&locale=en), [EU:C:1995:360](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A1995%3A360), paragraph [24](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A1995%3A360&anchor=#point24) and the case-law cited). Under Article 266 TFEU, where an act is annulled, the institution, body, office or entity which adopted the act must take the necessary measures to comply with the judgment. |

| 12 | In the second place, in so far as those heads of claim should be regarded as asking the Court to alter the contested decision, it must be observed that the Court does not have jurisdiction to alter a decision of the Executive Director, such as a decision taken by that director under Article 120(4)(b) of Regulation 2017/1001. |

| 13 | It is true that Article 72(3) of Regulation 2017/1001 provides that ‘the General Court shall have jurisdiction to annul or to alter the contested decision.’ However, it must be stated that that provision concerns only actions directed against decisions of the Boards of Appeal and not actions directed against decisions of the Executive Director. Such an interpretation follows from the wording of Article 72 of that regulation, which, under paragraph 1 thereof, concerns only‘decisions of the Boards of Appeal in relation to appeals’, and from the scheme of Chapter VII (Articles 66 to 73) of that regulation, which concerns only appeal proceedings before the Boards of Appeal and the outcome of such proceedings. Thus, Article 72(3) of Regulation 2017/1001 cannot be interpreted as conferring jurisdiction on the General Court to alter a decision of the Executive Director. |

| 14 | The arguments of the applicant based on the judgment of 13 July 2017, Rosenich v EUIPO ([T‑527/14](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2017%3A487&locale=en), [EU:T:2017:487](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2017%3A487)), and on the first sentence of Article 103(1) of Regulation 2017/1001 are not capable of leading to a different interpretation. |

| 15 | First, the case which gave rise to the judgment of 13 July 2017, Rosenich v EUIPO ([T‑527/14](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2017%3A487&locale=en), [EU:T:2017:487](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2017%3A487)), concerned an action for annulment directed against a decision of a Board of Appeal refusing to enter a natural person on the list of professional representatives on the ground that he did not meet the requirement laid down in Article 93(2)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark ([OJ 2009 L 78, p. 1](./../../../legal-content/EN/AUTO/?uri=OJ:L:2009:078:TOC)) (now Article 120(2)(b) of Regulation 2017/1001). By contrast, the present case concerns an action for annulment directed against a decision of the Executive Director refusing to grant the applicant an exemption from the requirement laid down in Article 120(2)(a) of Regulation 2017/1001 pursuant to paragraph 4(b) of the same article, which expressly confers on the Executive Director the power to take such a decision. Thus, the decision altered by the Court in the case relied on by the applicant was a decision of a Board of Appeal, whereas the contested decision is a decision of the Executive Director, a fact which supports the interpretation adopted in paragraph 13 above. |

| 16 | Furthermore, contrary to what the applicant submits, she did not have the possibility of lodging an appeal against the contested decision before a Board of Appeal. Under Article 66(1) of Regulation 2017/1001, read in conjunction with Article 159(a) to (d) and (f) of that regulation, only decisions of examiners, Opposition Divisions, the department in charge of the Register, Cancellation Divisions and, where appropriate, any other person or unit appointed by the Executive Director to that effect, are subject to appeal before a Board of Appeal. Similarly, under Article 165(1) of that regulation, read in conjunction with Articles 160 to 164 thereof, the Boards of Appeal are to be responsible for deciding on appeals from decisions taken by examiners, Opposition Divisions, the department in charge of the Register, Cancellation Divisions and, where appropriate, any official or unit appointed by the Executive Director for that purpose. It therefore follows from those provisions that decisions of the Executive Director are not subject to appeal before the Boards of Appeal and that the Boards of Appeal do not have jurisdiction to decide on appeals directed against such decisions. That finding is not contradicted by the circumstances of the case which gave rise to the judgment of 13 July 2017, Rosenich v EUIPO ([T‑527/14](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2017%3A487&locale=en), [EU:T:2017:487](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2017%3A487)), since, in that case, the decision of the Board of Appeal contested before the Court concerned not an appeal against a decision of the Executive Director, but rather, as is apparent from paragraph 14 of that judgment, an appeal against a decision of the ‘Director of the Operations Support Department of EUIPO, in his capacity as a Member of the Administration of Trade Marks and Designs and Legal Division’. |

| 17 | Second, Article 103 of Regulation 2017/1001 governs the revocation of EUIPO decisions and, in the first sentence of paragraph 1 thereof, provides that ‘where [EUIPO] has made an entry in the Register or taken a decision which contains an obvious error attributable to the Office, it shall ensure that the entry is cancelled or the decision is revoked.’ It must be pointed out that that provision does not relate to the Court’s power to alter decisions and cannot therefore confer jurisdiction on it to alter a decision of the Executive Director. |

| 18 | Accordingly, the applicant’s second and third heads of claim must be rejected on account of the Court’s lack of jurisdiction to hear and determine them. |

Substance

| 19 | In support of the action, the applicant puts forward five pleas in law, alleging (i) breach of the principle of legal certainty, (ii) infringement of Article 120(4)(b) of Regulation 2017/1001, (iii) breach of the principle of sound administration, (iv) infringement of the right to be heard, and (v) an error of assessment in relation to the evidence. |

| 20 | In the present case, the Court considers it appropriate to begin by examining the second plea in law. |

The second plea, alleging infringement of Article 120(4)(b) of Regulation 2017/1001

| 21 | The applicant submits, in essence, that the Executive Director infringed Article 120(4)(b) of Regulation 2017/1001 by misinterpreting and misapplying that provision in the contested decision. First of all, she maintains that the requirement relating to the need for professional experience in the Member State of entitlement is in breach of the fundamental principles of the European Union. Next, according to her, such a requirement is discriminatory and unreasonable in relation to the purpose of the provision, since experience acquired in any of the Member States should have the same value. Lastly, she argues that the Executive Director’s approach renders Article 120(2)(c) of that regulation meaningless, since the second part of that provision provides for the possibility of obtaining entitlement without having exercised the profession. |

| 22 | In response, EUIPO contends, first of all, that being qualified for the purposes of Article 120(2)(c) of Regulation 2017/1001 does not mean that one is ‘highly qualified’ within the meaning of Article 120(4)(b) of the same regulation. Next, according to EUIPO, the requirement to have professional experience in the Member State of entitlement does not limit the freedom to provide services, since the requester is not required to practise from that territory, but is required to rely on his or her national entitlement within the meaning of Article 120(2)(c) of Regulation 2017/1001. It maintains that, in this case, the applicant has failed to demonstrate that she relied on her Irish entitlement or that she used it. Moreover, it argues that, as the rules concerning the acquisition of an entitlement to represent natural or legal persons are not homogeneous within the EEA, the Executive Director’s interpretation makes it possible to ensure that requesters are highly qualified. Lastly, EUIPO contends that, in any event, even if the Executive Director’s interpretation were incorrect, no professional experience was proved in this case to show a high professional qualification. |

| 23 | In so far as the present plea raises the question whether the Executive Director infringed Article 120(4)(b) of Regulation 2017/1001, it is appropriate to begin by recalling that that provision appears in Chapter IX of that regulation, which contains provisions on ‘procedure’, and more specifically in Section 4 of that chapter, concerning ‘representation’. |

| 24 | In the latter regard, in accordance with Article 120(1)(a) and (b) of Regulation 2017/1001, representation of natural or legal persons before EUIPO may only be undertaken by a qualified legal practitioner or by professional representatives whose names appear on the list maintained by EUIPO. |

| 25 | The conditions for entry on the list of professional representatives maintained by EUIPO are laid down in paragraph 2(a), (b) and (c) of the same article. There are three cumulative requirements. Thus, any natural person who (i) is a national of a Member State of the EEA (‘the nationality requirement’), (ii) has his or her place of business or employment in the EEA (‘the place requirement’) and (iii) is entitled to represent natural or legal persons in trade mark matters before the Benelux Office for Intellectual Property or before the central industrial property office of a Member State of the EEA (‘the entitlement requirement’) may be entered on the list. |

| 26 | Paragraph 4 of the same regulation provides that the Executive Director of EUIPO may grant exemptions from the first and third of those requirements. As regards, specifically, the nationality requirement, Article 120(4)(b) of Regulation 2017/1001 – the provision which the applicant claims has been infringed in the present case – provides that the Executive Director ‘may grant’ an exemption ‘in the case of highly qualified professionals’, provided that the other two requirements are fulfilled. Furthermore, as regards the entitlement requirement, where it requires a person to ‘have habitually … acted for at least five years’, the Executive Director, under Article 120(4)(a) of that regulation, may grant an exemption from that requirement ‘if the [requester] furnishes proof that he [or she] has acquired the requisite qualification in another way’. |

| 27 | It is therefore necessary to determine whether, as the Executive Director found in paragraph 21 of the contested decision, recognition of the status of ‘highly qualified professional’ provided for in Article 120(4)(b) of Regulation 2017/1001 requires significant professional experience in the Member State of entitlement. |

| 28 | In that regard, it is appropriate to begin by noting that the concept of ‘highly qualified professional’ is not defined in Regulation 2017/1001 or even in Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001 and repealing Delegated Regulation (EU) 2017/1430 ([OJ 2018 L 104, p. 1](./../../../legal-content/EN/AUTO/?uri=OJ:L:2018:104:TOC)) or Commission Implementing Regulation (EU) 2018/626 of 5 March 2018 laying down detailed rules for implementing certain provisions of Regulation 2017/1001 and repealing Implementing Regulation (EU) 2017/1431 ([OJ 2018 L 104, p. 37](./../../../legal-content/EN/AUTO/?uri=OJ:L:2018:104:TOC)). Nor, moreover, was any definition of that concept to be found in the previous Regulation No 207/2009, in which that concept was introduced in Article 93(4)(b) thereof by point 87(b) of Article 1 of Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 amending Regulation No 207/2009 and Commission Regulation (EC) No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community trade mark, and repealing Commission Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) ([OJ 2015 L 341, p. 21](./../../../legal-content/EN/AUTO/?uri=OJ:L:2015:341:TOC)). |

| 29 | In those circumstances, for the purpose of interpreting a concept of EU law, account should be taken not only of the wording of the provision in which it appears but also of the context in which it is used and of the aims of the legislation of which it is part (judgment of 24 November 2011, Circul Globus Bucureşti, [C‑283/10](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A772&locale=en), [EU:C:2011:772](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A772), paragraph [32](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A772&anchor=#point32)). |

| 30 | As regards the wording and context of the provision at issue, first, it should be noted that the concept of ‘highly qualified professional’ consists of three words. In the ordinary meaning of those words, the noun ‘professional’ denotes a person skilled in a trade or a specialist, the adjective ‘qualified’ means that that person has the qualities, skills, abilities or knowledge to do something and the adverb ‘highly’ indicates the particularly advanced level of that qualification. Taken as a whole, that concept therefore appears to refer to a specialist with particularly advanced qualities, skills, abilities or knowledge, account being had, in this case, to the context in which it is used, namely in trade mark matters. |

| 31 | Thus, from a literal point of view, the concept of ‘highly qualified professional’ does not appear to imply, as such, any restriction with respect to the manner in which the specialist concerned acquires qualities, skills, abilities or knowledge in trade mark matters, in particular in relation to a specific place or given type of activity. |

| 32 | Second, Article 120(4)(b) of Regulation 2017/1001 states that the two other requirements laid down in Article 120(2)(b) and (c) of that regulation, namely the place requirement and the entitlement requirement, must, in any event, be fulfilled in order for an exemption from the nationality requirement to be granted. That stipulation in the provision at issue thus emphasises not only the cumulative nature of the three requirements laid down in Article 120(2) of Regulation 2017/1001, but also their autonomous nature. |

| 33 | The entitlement requirement must be fulfilled, in accordance with the detailed rules laid down in Article 120(2)(c) of Regulation 2017/1001, both by natural persons who are nationals of a Member State of the EEA and therefore fulfil the nationality requirement, and by natural persons who are not nationals of a Member State of the EEA and who request an exemption from the nationality requirement on account of their status as a ‘highly qualified professional’. |

| 34 | It therefore follows from the wording of the provision at issue and from the context in which it is used that the status of ‘highly qualified professional’ is independent of, and additional to, the entitlement requirement and has no connection with the conditions necessary for fulfilling that requirement (or for obtaining an exemption in relation to that requirement) or, more specifically, with the Member State in which that entitlement was obtained in accordance with its national rules. Accordingly, the particularly advanced qualities, skills, abilities or knowledge in trade mark matters capable of demonstrating the status of ‘highly qualified professional’ may have been acquired by the non-EEA national, both in a Member State of the EEA and in a third country, before or after obtaining the national entitlement in the EEA for the purposes of Article 120(2)(c) of Regulation 2017/1001. |

| 35 | As regards the aims pursued by the legislation of which the provision at issue is part, it is apparent from recital 43 of Regulation 2017/1001 that the rules on representation before EUIPO must ensure a smooth, effective and efficient operation of the EU trade mark system. Similarly, recital 18 of Delegated Regulation 2018/625 states that those rules need to ensure a smooth, effective and efficient operation of that system. |

| 36 | The pursuit of such aims in relation to representation in the context of the EU trade mark system does not presuppose that the status of ‘highly qualified professional’ is conditional on a certain amount of professional experience in a given Member State or on having a connection with a given Member State. |

| 37 | On the contrary, it appears to be irrelevant, from the point of view of the aims pursued by the rules on representation, whether the particularly advanced qualities, skills, abilities or knowledge possessed by the specialist requesting the exemption was acquired in one Member State rather than another, or even in a third country, since, in any event, a requester who is not a national of a Member State of the EEA must also fulfil the place requirement and the entitlement requirement which, for their part, require a connection with a Member State of the EEA. |

| 38 | It follows from the foregoing that the requirement relating to the need for professional experience in the Member State of entitlement applied by the Executive Director in the contested decision is based on an overly restrictive and incorrect interpretation of the concept of ‘highly qualified professional’ within the meaning of Article 120(4)(b) of Regulation 2017/1001, in that it establishes a necessary correlation between that concept and the country of entitlement for the purposes of Article 120(2)(c) of that regulation. Such an interpretation is not consistent with the scope of that concept, as is apparent from its wording, context and aims. None of those criteria for interpretation permits the inference that the status of ‘highly qualified professional’ requires, as a necessary condition, professional experience – or, for that matter, significant professional experience – in the Member State of entitlement. |

| 39 | Accordingly, the Executive Director having infringed Article 120(4)(b) of Regulation 2017/1001 by adopting an overly restrictive and incorrect interpretation of the concept of ‘highly qualified professional’, the second plea in law must be upheld. |

| 40 | However, it must be observed that, as EUIPO contends before the Court, the contested decision is not based solely on an alleged lack of professional experience in the Member State of entitlement, as was found in paragraph 21 of that decision. As is apparent from paragraphs 20 and 22 thereof, it is based also on the view that, overall, the standard of the evidence submitted by the applicant was too low, and that that evidence does not support the conclusion that she was a ‘highly’ qualified professional, the Executive Director however accepting that she was a qualified professional. The contested decision therefore relies, in essence, on two separate and independent bases relating, first, to the place of the professional experience and, second, to the level of the professional qualification demonstrated by the evidence. It follows that the infringement of Article 120(4)(b) of Regulation 2017/1001 committed by the Executive Director as regards the place of the professional experience cannot, as such, lead to a finding that that decision is unlawful in its entirety, since that infringement does not affect the basis of the contested decision concerning the level of professional qualification. |

| 41 | The Court therefore considers it appropriate to examine the first plea in law. |

First plea in law, alleging breach of the principle of legal certainty

| 42 | The applicant submits that the Executive Director failed to observe the principle of legal certainty by retroactively applying to her request for an exemption the guidelines for examination in EUIPO as referred to in Article 153(1)(l) of Regulation 2017/1001 (‘the EUIPO guidelines’), adopted in 2020, which were not in force at the time of that request. She maintains that her response of 9 and 13 March 2020 was not a new request, as the only request she made was that of 10 October 2019. She argues that the applicable EUIPO guidelines were therefore those in force at the time of that request, namely the 2017 guidelines, which did not require professional experience to have been acquired in the Member State of entitlement. According to her, it is incorrect to claim that the 2020 EUIPO guidelines merely contain further details as compared with the 2017 guidelines and that they did not change the interpretation of the legal requirements, the Executive Director having applied an interpretation which is not reflected in the legislation. |

| 43 | EUIPO contends that it did not regard the applicant’s response of 9 and 13 March 2020 as a new request. It states that the requirement of being a ‘highly qualified professional’ was ‘introduced in … [Regulation 2017/1001] within the latest legislative reform of 2017’ with which ‘the legislat[ure] thus introduced a stricter criterion’ for granting an exemption from the nationality requirement as compared with Regulation No 207/2009, which referred only to ‘special circumstances’. It maintains that the 2020 EUIPO guidelines merely provide further details and do not change the legal requirements. EUIPO states that all requests submitted under Regulation 2017/1001 have been handled in the same way. Lastly, it contends that, if the applicant had doubts as to the documents to be provided, it was for her to contact EUIPO. |

– Preliminary observations on the applicable legal principles

| 44 | The principle of legal certainty – which is one of the general principles of European Union law and the corollary of which is the principle of the protection of legitimate expectations – requires that rules of law be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by European Union law (judgments of 8 December 2011, France Télécom v Commission, [C‑81/10 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A811&locale=en), [EU:C:2011:811](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A811), paragraph [100](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A811&anchor=#point100), and of 9 October 2014, Traum, [C‑492/13](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2014%3A2267&locale=en), [EU:C:2014:2267](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2014%3A2267), paragraph [28](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2014%3A2267&anchor=#point28)). |

| 45 | The principle of legal certainty does not require that there be no amendment of rules of law. Thus, an individual cannot place reliance on there being no amendment to those rules whatever, but can only call into question the arrangements for the implementation of such an amendment (judgment of 7 June 2005, VEMW and Others, [C‑17/03](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2005%3A362&locale=en), [EU:C:2005:362](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2005%3A362), paragraph [81](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2005%3A362&anchor=#point81)). |

| 46 | In that regard, with respect, more specifically, to the temporal application of rules of law, according to the case-law, although the legal basis of an act and the applicable procedural rules must be in force at the time of adoption of that act, compliance with the principles governing the temporal application of the law and the requirements relating to the principles of legal certainty and the protection of legitimate expectations require the substantive rules in force at the time of the facts at issue to be applied even though those rules are no longer in force at the time when the act at issue was adopted by the EU institution (see, to that effect, judgments of 14 June 2016, Commission v McBride and Others, [C‑361/14 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2016%3A434&locale=en), [EU:C:2016:434](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2016%3A434), paragraph [40](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2016%3A434&anchor=#point40) and the case-law cited, and of 15 March 2018, Deichmann, [C‑256/16](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A187&locale=en), [EU:C:2018:187](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A187), paragraph [76](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A187&anchor=#point76)). |

| 47 | As regards the EUIPO guidelines, it is apparent from the introduction thereto that they are a document adopted by decision of the Executive Director and intended to reflect EUIPO’s trade mark practice by codifying it. It is clear from the decisions of the Executive Director adopting the EUIPO guidelines that those decisions are taken pursuant to Article 157(4)(a) of Regulation 2017/1001, which confers on the Executive Director the power to ‘tak[e] all necessary steps, including the adoption of internal administrative instructions and the publication of notices, to ensure the functioning of … [EUIPO]’, and in accordance with Article 153(1)(l) of that regulation, which expressly provides that the Management Board of EUIPO must be ‘consulted before adoption of the [EUIPO] guidelines’. In addition, those decisions are published in the Official Journal of EUIPO referred to in Article 116(1)(b) of that regulation and set the date on which the EUIPO guidelines enter ‘into force’. |

| 48 | It is clear from the case-law that, although the EUIPO guidelines lack binding force, they are a reference source on EUIPO’s practice. Those guidelines are a consolidated set of rules setting out the line of conduct which EUIPO itself proposes to adopt, with the result that, provided that those rules are consistent with legal provisions of higher authority, they constitute a self-imposed restriction on EUIPO, namely that of compliance with the rules which it has itself laid down (see judgment of 8 June 2022, Muschaweck v EUIPO – Conze (UM), [T‑293/21](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2022%3A345&locale=en), [EU:T:2022:345](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2022%3A345), paragraphs [38](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AT%3A2022%3A345&anchor=#point38) and [39](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AT%3A2022%3A345&anchor=#point39) and the case-law cited). |

| 49 | In that regard, it should be borne in mind that the Court of Justice has held, in a judgment concerning internal measures adopted by an EU administrative authority, that, although those measures may not be regarded as ‘rules of law’ which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment. In adopting such rules of conduct and announcing by publishing them that they will henceforth apply to the cases to which they relate, the administrative authority in question imposes a limit on the exercise of its discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of the general principles of law, such as equal treatment or the protection of legitimate expectations (see, to that effect, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, [C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2005%3A408&locale=en), [EU:C:2005:408](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2005%3A408), paragraphs [209](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2005%3A408&anchor=#point209) and [211](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2005%3A408&anchor=#point211)). |

| 50 | It follows from the foregoing that it is for the Executive Director, in a case such as the present one, to comply with any rules of conduct set out in the EUIPO guidelines that are relevant for the application of Article 120(4)(b) of Regulation 2017/1001 and, to that end, to comply with the principles governing the temporal application of those rules of conduct, in accordance with the principle of legal certainty. Since rules of conduct such as those set out in the EUIPO guidelines, while not binding, may help to ensure that EUIPO acts in a manner which is transparent, foreseeable and consistent with legal certainty (see, by analogy, judgments of 7 March 2002, Italy v Commission, [C‑310/99](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2002%3A143&locale=en), [EU:C:2002:143](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2002%3A143), paragraph [52](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2002%3A143&anchor=#point52), and of 12 February 2014, Beco v Commission, [T‑81/12](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2014%3A71&locale=en), [EU:T:2014:71](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2014%3A71), paragraph [70](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AT%3A2014%3A71&anchor=#point70)), it cannot be accepted that they may be applied in breach of the general principles of law, such as the principle of legal certainty in this instance, particularly as regards the temporal application of those rules. |

| 51 | It is true that, in accordance with the case-law referred to in paragraph 49 above, it cannot be ruled out that, in an individual case, the Executive Director may depart from those rules of conduct and give reasons which take account of the principle of equal treatment. Similarly, as those rules of conduct constitute a self-imposed restriction only on the administrative authority which adopted them, they cannot, in a given case, prevent a requester from demonstrating the status of ‘highly qualified professional’ on the basis of factors other than those which may derive from the practice of the Executive Director as set out in the EUIPO guidelines. |

| 52 | It is therefore in the light of those principles that it is necessary to examine whether, in the contested decision, the Executive Director, in breach of the principle of legal certainty, (i) incorrectly determined the date of the applicant’s request for an exemption, and (ii) incorrectly applied to that request EUIPO guidelines which were not in force on that date. |

– Application to the present case

| 53 | In the first place, as regards the date on which the applicant submitted her request for an exemption, it is apparent from paragraph 1 of the contested decision that the Executive Director considered that the applicant had submitted a complete request for an exemption on 9 March 2020. In particular, it is apparent from paragraph 4 of the contested decision that, according to the Executive Director, following EUIPO’s letter of 30 January 2020, which responded to the request for an exemption initially submitted on 10 October 2019, the applicant submitted a ‘new request’ on 9 March 2020 and that, consequently, the latter date was the date of the request. |

| 54 | It must be stated that those procedural details contained in the contested decision are partially incorrect. It is clear from the documents produced before the Court that the applicant submitted her request for an exemption on 10 October 2019 and that, by her letters of 9 and 13 March 2020, she did not submit a new request for an exemption, but merely responded to EUIPO’s letter of 30 January 2020. The only request for an exemption submitted by the applicant was therefore that of 10 October 2019 and the evidence in support of that request was submitted both in annex to that request and in annex to the letters of 9 and 13 March 2020. |

| 55 | It follows that, as the applicant rightly submits, the Executive Director incorrectly considered that her request for an exemption had been submitted on 9 March 2020, that request having been submitted on 10 October 2019. |

| 56 | In the second place, as regards the EUIPO guidelines applicable to the applicant’s request, it is necessary to make the following observations. |

| 57 | First, it should be noted that, at the time when that request was submitted on 10 October 2019, the 2017 EUIPO guidelines, adopted on 22 September 2017, had been in force since 1 October 2017, which is also the date from which Regulation 2017/1001 is to apply in accordance with the second paragraph of Article 212 thereof. By contrast, the 2020 EUIPO guidelines were adopted by the Executive Director on 12 December 2019 and entered into force on 1 February 2020. The latter guidelines were therefore in force when the contested decision was adopted by the Executive Director on 20 September 2020. |

| 58 | Second, it must be observed that the guidance contained in the 2017 EUIPO guidelines, on the one hand, and in the 2020 EUIPO guidelines, on the other, regarding the practice of the Executive Director relating to the assessment of requests for exemption from the nationality requirement under Article 120(4)(b) of Regulation 2017/1001 is considerably different. |

| 59 | Paragraph 2.3.4 of Section 5 of Part A of the 2017 EUIPO guidelines, concerning the exemption from the nationality requirement, simply states that that exemption may be granted under ‘special circumstances’. |

| 60 | By contrast, paragraph 2.3.4 of Section 5 of Part A of the 2020 EUIPO guidelines, after having also stated that that exemption may be granted under ‘special circumstances’ and that there must be ‘exceptional circumstances’, states, concerning specifically the exemption from the nationality requirement:  ‘This legal condition of being [a] “highly qualified professional” would at least, and without being necessarily sufficient in themselves, require the request[er] to demonstrate (with supporting evidence) that his or her professional experience:   | – | is specifically related to trade mark … matters, |  | – | has been specifically obtained “acting as a representative” in trade mark … matters, |  | – | is attributable to a specific trade mark … portfolio …, |  | – | has been performed under his or her own responsibility and authority, |  | – | has been acquired in the Member State of the EEA where the requester is currently entitled to represent others … within the meaning of Article 120(2)(c) … [of Regulation 2017/1001], |  | – | exceeds the minimum requirement of 5 years[’] duration … if the entitlement to represent is based on experience and not on qualification. |   The following circumstances would, on their own, not be considered to demonstrate that the request[er] is a “highly qualified professional” for the purposes of the exemption from the EEA nationality requirement. However, provided that the aforementioned requirements are fulfilled, these could be considered in the overall assessment of all relevant factors:   | – | experience in IP-related areas of laws other than trade marks and designs …; |  | – | formal qualifications …; |  | – | experience achieved under supervision, assisted by others, as part of a team, etc.[;] |  | – | publications, research or articles in recognised peer-reviewed journals or specialised publications, book authorship, experience in IP educational field.’ | |

| 61 | In other words, the 2020 EUIPO guidelines list six minimum cumulative requirements relating to professional experience, the demonstration of which is verified by the Executive Director in the course of his or her assessment, as well as four circumstances which, by themselves, are not considered by the Executive Director to be sufficient, but which, if those requirements are met, may be taken into consideration. |

| 62 | Thus, the 2020 EUIPO guidelines lay down criteria for assessing requests for exemption from the nationality requirement which were not included in the 2017 EUIPO guidelines and therefore set out a new, and more restrictive, practice of the Executive Director as compared with that set out in the 2017 EUIPO guidelines. As regards EUIPO’s argument that the 2020 EUIPO guidelines did not change the practice of the Executive Director, which, it maintains, was identical under the former 2017 EUIPO guidelines, it is sufficient to observe that such an argument is in no way substantiated, just as the argument that requests submitted under Regulation 2017/1001 have all been handled in the same way is in no way substantiated. |

| 63 | It must therefore be held that the divergent guidance contained in the 2017 and 2020 EUIPO guidelines regarding the practice of the Executive Director relating to the assessment of requests for exemption from the nationality requirement is liable to have a significant impact not only on the Executive Director’s assessment of a request for an exemption, but also, at an earlier stage, on the content of such a request, or even on the decision to submit that request. Without prejudice to the possibility for a requester to demonstrate that he or she holds the status of ‘highly qualified professional’ on the basis of factors other than those set out in those guidelines in accordance with paragraph 51 above, the said guidance enables requesters to anticipate, as the case may be, on the basis of which factors a request for an exemption may be assessed by the Executive Director. From that point of view, demonstrating that a person holds the status of ‘highly qualified professional’ in the light of ‘exceptional circumstances’ involving the fulfilment of six minimum cumulative requirements in terms of professional experience within the meaning of the 2020 EUIPO guidelines is manifestly different in scope from demonstrating that status solely in the light of relevant ‘special circumstances’ within the meaning of the 2017 EUIPO guidelines. |

| 64 | Third, in the contested decision, although he did not formally specify which EUIPO guidelines were applied, the Executive Director expressly reproduced, in paragraph 14 of that decision, the requirements and circumstances set out in the 2020 EUIPO guidelines (referred to in paragraph 60 above) and stated, in paragraph 15 of that decision, that the applicant’s request and evidence had to be evaluated in the light of those considerations. Thus, in paragraph 20 of the contested decision, the Executive Director stated that the applicant could not obtain an exemption for the purposes of the factors explained in the said paragraph 14. Moreover, in paragraph 23 of the contested decision, the Executive Director recalled that paragraph 14 of the same decision laid out the requirements and circumstances for obtaining an exemption and stated that the new 2020 EUIPO guidelines had not changed the practice applied when the 2017 EUIPO guidelines were in force, the only difference being that the new guidelines provided further details better to guide both requesters and EUIPO. |

| 65 | It is therefore apparent from the contested decision that the Executive Director examined the applicant’s request for an exemption in the light of the guidance contained in the 2020 EUIPO guidelines. |

| 66 | In accordance with the case-law referred to in paragraphs 44 and 46 above, however, it is the rules of conduct in force at the time of the facts at issue, that is to say, at the time when the request for an exemption was submitted, which must be applied when assessing that request, and not those in force at the time when the contested decision was adopted. In the present case, at the time of that request, the 2020 EUIPO guidelines were not in force and had not yet even been adopted; the guidelines in force at that time were those of 2017. Moreover, it has in no way been demonstrated that the new 2020 EUIPO guidelines did not change the practice of the Executive Director that was applied when the 2017 EUIPO guidelines were in force. |

| 67 | It follows, in the light of the matters examined in paragraphs 57 to 66 above, that the Executive Director, in breach of the principle of legal certainty, assessed the applicant’s request for an exemption in the light of rules of conduct set out in the 2020 EUIPO guidelines which were not in force at the time when that request was submitted, with the result that the applicant could not have foreseen that her request would be assessed in the light of those rules, which were new and more restrictive than those contained in the 2017 EUIPO guidelines. |

| 68 | Therefore, the Executive Director having failed to observe the principle of legal certainty by assessing the applicant’s request for an exemption submitted under Article 120(4)(b) of Regulation 2017/1001 in the light of rules of conduct which were not in force at the time when that request was submitted, the first plea in law must be upheld and, on that basis, the contested decision must be annulled. |

| 69 | Nevertheless, the Court considers it appropriate to examine also the fourth plea in law. |

Fourth plea in law, alleging infringement of the right to be heard

| 70 | The applicant, relying on Articles 94 and 97 of Regulation 2017/1001, submits that, in annex to her request for an exemption of 10 October 2019, she had produced supporting documents as proof that she was a highly qualified professional and that, in its response of 30 January 2020, EUIPO had stated that she would not be granted the exemption on the sole ground that she was practising in a Member State (Germany) different from the one in which she was qualified (Ireland). Thus, in her replies of 9 and 13 March 2020, the applicant responded only to the objection regarding the ‘locality’ of her practice. The applicant adds that she replied to the letter of30 January 2020 on her own initiative. She submits that, in that letter, EUIPO claimed that the request was inadmissible based on a single objection relating to the place of the applicant’s practice, and did not raise any further objections or issues, including in relation to the evidence that she was a highly qualified professional. The applicant maintains that, in her response of 9 and 13 March 2020, she merely addressed what appeared to be the problem of the admissibility of her request, but that, had she been asked to provide more details regarding her qualifications, she would have done so. |

| 71 | EUIPO contends that the applicant was able to submit observations and evidence, which were taken into consideration. It maintains that, furthermore, since the contested decision was taken on the basis of her request and the evidence which she put forward, the applicant cannot claim that she was not heard prior to the adoption of a decision which she herself triggered. EUIPO adds that it is difficult to identify what prevented the applicant from putting forward all of the evidence that she had at her disposal in order to prove that she was a highly qualified professional. |

– Preliminary observations regarding the applicable legal principles

| 72 | At the outset, it must be observed that Article 97 of Regulation 2017/1001, relied on by the applicant, is irrelevant to her right to be heard, since it governs the power of the adjudicating bodies of EUIPO to take evidence. |

| 73 | By contrast, under the second sentence of Article 94(1) of Regulation 2017/1001, decisions of EUIPO are to be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments. |

| 74 | That provision constitutes a specific application of the general principle of protection of the rights of the defence, guaranteed, furthermore, by Article 41(2)(a) of the Charter of Fundamental Rights of the European Union, according to which a person whose interests are affected by a decision of a public authority must be given the opportunity effectively to make his or her point of view known (judgment of 21 April 2021, Hasbro v EUIPO – Kreativni Dogadaji (MONOPOLY), [T‑663/19](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2021%3A211&locale=en), [EU:T:2021:211](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2021%3A211), paragraph [119](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AT%3A2021%3A211&anchor=#point119)). |

| 75 | The right to be heard set out in Article 94 of Regulation 2017/1001 extends to all the factual and legal material which forms the basis of the decision, but not to the final position which the authority intends to adopt (judgment of 21 April 2021, MONOPOLY, [T‑663/19](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2021%3A211&locale=en), [EU:T:2021:211](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2021%3A211), paragraph [120](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AT%3A2021%3A211&anchor=#point120)). |

| 76 | That right guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely (judgment of 4 April 2019, OZ v EIB, [C‑558/17 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A289&locale=en), [EU:C:2019:289](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A289), paragraph [53](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2019%3A289&anchor=#point53)). |

| 77 | That right is to be observed irrespective of the nature of the administrative procedure leading to the adoption of an individual measure, even where the applicable rules do not provide for it. That is the case, inter alia, when the administration proposes to take a decision in response to a request lodged by a person of his or her own initiative (judgment of 23 September 2020, UE v Commission, [T‑338/19](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2020%3A430&locale=en), [EU:T:2020:430](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2020%3A430), paragraphs [48](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AT%3A2020%3A430&anchor=#point48) and [50](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AT%3A2020%3A430&anchor=#point50)). |

| 78 | According to the case-law, an infringement of the right to be heard results in the annulment of the decision taken at the end of the administrative procedure at issue only if, had it not been for such an irregularity, the outcome of the procedure might have been different. In that regard, an applicant who relies on infringement of his or her right to be heard cannot be required to show that the measure concerned would have been different in content but simply that such a possibility cannot be totally ruled out (judgments of 18 June 2020, Commission v RQ, [C‑831/18 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A481&locale=en), [EU:C:2020:481](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A481), paragraphs [105](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A481&anchor=#point105) and [106](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A481&anchor=#point106), and of 12 July 2023, IFIC Holding v Commission, [T‑8/21](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2023%3A387&locale=en), [EU:T:2023:387](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2023%3A387), paragraphs [123](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AT%3A2023%3A387&anchor=#point123) and [124](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AT%3A2023%3A387&anchor=#point124)). |

| 79 | The assessment of that question must, moreover, be made in the light of the factual and legal circumstances of each case (judgments of 18 June 2020, Commission v RQ, [C‑831/18 P](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A481&locale=en), [EU:C:2020:481](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A481), paragraph [107](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A481&anchor=#point107), and of 12 July 2023, IFIC Holding v Commission, [T‑8/21](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2023%3A387&locale=en), [EU:T:2023:387](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2023%3A387), paragraph [125](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AT%3A2023%3A387&anchor=#point125)). |

– Summary of the background

| 80 | In the request of 10 October 2019, the applicant sought an exemption from the nationality requirement by declaring that she was a highly qualified professional. As is apparent from the boxes ticked under (d), (g) and (h) of Section 2 of the request form, the applicant relied on her ‘professional experience performed under supervision, assisted by others, as part of a team, etc[.]’, on her ‘formal qualifications’ and on her ‘publications, research or articles in recognised peer reviewed journals or specialised publications, [her] book authorship, [her] experience in IP educational field, etc.’. |

| 81 | To that end, in annex to her request for an exemption, the applicant produced three items of evidence: an extract from her employment contract, her diploma and an extract from the third edition, published in 2015, of a book on intellectual property. |

| 82 | In the letter of 30 January 2020, EUIPO stated, first of all, that the applicant had to prove her professional experience in her Member State of entitlement, namely Ireland; next, that, with the exception of a certificate issued by the Intellectual Property Office of Ireland stating that she was on the Register of Trade Mark Agents, the applicant had not produced any additional evidence to demonstrate that she was a highly qualified professional in Ireland, the rest of the evidence concerning Germany and the Netherlands (the names of the three countries all being written in bold letters); lastly, that the request for an exemption was therefore inadmissible as it did not contain the required evidence. Furthermore, the letter stated that the applicant could submit a new request at any time and, for information purposes, reproduced an extract from the text of the future 2020 EUIPO guidelines (including the part reproduced in paragraph 60 above). |

| 83 | In her letters of 9 and 13 March 2020, the applicant claimed that the 2017 EUIPO guidelines did not require professional experience to be acquired in the Member State of entitlement, that the new 2020 EUIPO guidelines should not have been applied to her situation, that she disagreed with the requirement, set out in the latter guidelines, to have professional experience in the Member State of entitlement and that she had worked on trade mark matters related to Ireland in addition to those concerning EU law. |

| 84 | To that end, in annex to her letters of 9 and 13 March 2020, the applicant produced three items of evidence: a screenshot of the Irish Register of Trade Mark Agents as well as a certificate attesting to her entry in that register, a letter from her former employer and a letter from a German academic institution concerning her activity as tutor. |

| 85 | In the contested decision, after having examined the evidence submitted by the applicant (paragraphs 17 to 19 of that decision), first of all, the Executive Director stated that, on the whole, although that evidence supported the conclusion that the applicant was a qualified professional, it did not support the conclusion that she was ‘highly’ qualified (paragraph 20 thereof). Next, the Executive Director stated that the applicant had not demonstrated significant professional experience in Ireland and that, in any event, the items of evidence submitted did not establish that she was highly qualified in Germany or in the Netherlands, either (paragraph 21 thereof). Lastly, the Executive Director noted that, while the evidence proved that the applicant was entitled to act before the Intellectual Property Office of Ireland, it did not prove that the applicant had exceeded that minimum requirement and therefore did not support the conclusion that she was a highly qualified professional in Ireland or in any other State (paragraph 22 thereof). |

– The existence of a procedural irregularity

| 86 | In the first place, in so far as the contested decision refuses a request for an exemption from the nationality requirement submitted by the applicant for the purpose of entering her on the list of professional representatives, it must be stated that that decision is an act of individual scope which affects the applicant’s interests adversely. Consequently, in accordance with the case-law referred to in paragraphs 76 and 77 above, the Executive Director was required to hear the applicant before adopting the contested decision. EUIPO’s arguments suggesting that the Executive Director was not under such an obligation, on the ground that the contested decision arose in response to a request from the applicant herself, must therefore be rejected (see, to that effect, judgment of 23 September 2020, UE v Commission, [T‑338/19](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AT%3A2020%3A430&locale=en), [EU:T:2020:430](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AT%3A2020%3A430), paragraph [50](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AT%3A2020%3A430&anchor=#point50)). |

| 87 | In the second place, it must be stated that, following the applicant’s request for an exemption, EUIPO sent her the letter of 30 January 2020, to which the applicant responded by the letters of 9 and 13 March 2020. However, that does not necessarily mean that the applicant was given the opportunity to make known her views ‘effectively’, as is required by the case-law referred to in paragraph 76 above. |

| 88 | First, as is apparent from the documents produced before the Court, EUIPO’s letter of 30 January 2020 did not provide the applicant with any information regarding the nature of that letter itself or regarding the conduct of the procedure for examining her request for an exemption, nor did it invite the applicant to submit any observations she might have had on the objections raised by EUIPO. Moreover, it is common ground that the applicant replied to that letter of her own initiative, by her letters of 9 and 13 March 2020. |

| 89 | Second, as is apparent from paragraph 82 above and from the documents produced before the Court, the letter of 30 January 2020 concluded that the applicant’s request for an exemption was ‘inadmissible’ due to the lack of evidence submitted in support of that request. In particular, that letter stated that the applicant had to have acquired professional experience in the Member State of entitlement – in this case Ireland – and that, apart from the certificate issued by the Intellectual Property Office of Ireland, no other evidence had been submitted to demonstrate that she was a highly qualified professional ‘in Ireland’, since the rest of the evidence submitted concerned Germany and the Netherlands. Furthermore, the names of those three countries were written in bold in that letter, which helped to emphasise the central importance, for EUIPO, of the country to which the applicant’s submission of evidence related. |

| 90 | The applicant, in her letters of 9 and 13 March 2020, thus responded to the objection raised by EUIPO, disputing the relevance of the requirement relating to the need for experience in the Member State of entitlement and providing evidence concerning her activities relating to Ireland. |

| 91 | The contested decision no longer refers to any ‘inadmissibility’ in respect of the request, but refuses, on the substance, to grant the applicant the exemption requested by relying not only, in paragraph 21 of that decision, on the lack of evidence relating to Ireland, but also, in paragraphs 20 and 22 thereof, on the lack of evidence supporting the conclusion that the applicant was ‘highly’ qualified, while the Executive Director accepts that the applicant was a qualified professional. As is apparent from paragraphs 20 to 22 of the contested decision, the objection relating to the place of the professional experience henceforth forms the basis of only one part of the Executive Director’s reasoning used in the contested decision, which is also – and primarily – based on the view that the standard of the evidence submitted was too low overall; according to the Executive Director, that evidence does not support the conclusion that the applicant, while qualified, is ‘highly’ qualified. |

| 92 | It must therefore be held that, in view of the difference between the objections set out in the letter of 30 January 2020 and those raised by the Executive Director in the contested decision, the applicant, during the administrative procedure which led to the adoption of that decision, was not given the opportunity, by the Executive Director, to present her comments effectively on the view that the standard of the evidence submitted was too low overall and, if necessary, to explain why that evidence demonstrated that she was not only qualified, but also highly qualified. On the contrary, instead of allowing her to present her comments effectively in that regard, the letter of 30 January 2020 led the applicant to focus on a single aspect – the country of professional experience – which was of limited scope in the contested decision. |

| 93 | It follows from the foregoing that the Executive Director did not properly hear the applicant during the administrative procedure that led to the adoption of the contested decision and, consequently, infringed her right to be heard. |

– The consequences of the procedural irregularity

| 94 | As regards the consequences to be drawn from the finding made in paragraph 93 above, in accordance with the case-law referred to in paragraphs 78 and 79 above, it is necessary to determine whether, in the light of the factual and legal circumstances of the present case, the applicant has sufficiently demonstrated that, had it not been for that procedural irregularity, the possibility that the contested decision might have been different in content cannot be totally ruled out. |

| 95 | In that regard, it should be noted that, in the written pleadings lodged before the Court, the applicant referred on numerous occasions to evidence that she could have produced before the Executive Director had she been heard during the administrative procedure that led to the adoption of the contested decision. In addition, as she had not been able to produce such evidence before the Executive Director, the applicant produced such evidence before the Court in annex to the application, to the reply and to the observations following referral back to the Court. |

| 96 | As a preliminary point, it is necessary to examine the admissibility of the evidence produced by the applicant before the Court, which is disputed by EUIPO. The latter contends that the evidence produced by the applicant in Annexes A.11, A.15, A.18 to A.22 and A.24 to A.28 to the application, in Annexes C.1 to C.5 to the reply and in Annexes E.1 to E.3 to the observations following referral back to the Court is inadmissible, since it was produced for the first time before the Court. By contrast, the applicant argues that that evidence is admissible, since she was not given an opportunity to be heard and it is only before the Court that she has had the opportunity to submit that evidence for the first time. |

| 97 | In so far as those annexes are intended to provide an indication of the evidence that the applicant could have produced before the Executive Director had she been heard, EUIPO’s objection must be rejected. Those annexes do not seek to have the Court, by substituting itself for the Executive Director, carry out a fresh assessment of the applicant’s request on the basis of evidence which the Executive Director did not have at its disposal; rather, they seek solely to support the applicant’s plea alleging infringement of her right to be heard. |

| 98 | Thus, from that perspective, the evidence the admissibility of which is disputed by EUIPO, referred to in paragraph 96 above, must be regarded as admissible. Furthermore, the same applies to Annexes A.17 and A.29 to the application, which are not referred to in EUIPO’s objection. |

| 99 | It is therefore necessary to examine whether the applicant’s arguments based on that evidence show that, had she been heard, it cannot be totally ruled out that the outcome of the procedure might have been different. |

| 100 | In that regard, at the outset, it must be observed that a number of those items of evidence appear prima facie to be irrelevant in the context of such an examination, since they appear to be items relating to activities of the applicant which are subsequent to the contested decision (Annexes C.1 to C.3 and C.5 to the reply and Annexes E.1 to E.3 to the observations following referral back to the Court), items not relating directly to the applicant (Annexes A.18, A.22 and A.24 to the application and Annex C.4 to the reply) or items not relating to trade mark law (Annexes A.25 and A.29 to the application). |

| 101 | On the other hand, it cannot be totally ruled out that the other items of evidence to which the applicant refers in Annexes A.11, A.15, A.17, A.19 to A.21 and A.26 to A.28 to the application could have enabled her, had she been heard during the administrative procedure that led to the adoption of the contested decision, to submit more evidence in relation to the qualifications referred to in paragraph 80 above which, according to the applicant, stemmed from the work carried out for her former employer, from her studies and from her research, publication and educational activities. |

| 102 | Although it is true that some of those items of evidence consist of letters drafted on dates that are subsequent to the adoption of the contested decision (Annexes A.15, A.20 and A.21) and an undated curriculum vitae (Annex A.11), they appear prima facie to relate to activities of the applicant which precede the adoption of the contested decision; consequently, it cannot be ruled out that, had she been heard during the procedure which led to the adoption of that decision, the applicant could also have produced such evidence before the Executive Director by obtaining it earlier. |

| 103 | It must therefore be held that the arguments and evidence submitted before the Court support the conclusion that, had the applicant been heard during the administrative procedure that led to the adoption of the contested decision, the possibility that the outcome of that procedure might have been different, particularly as regards the assessment of the level of her professional qualification, cannot be totally ruled out, bearing in mind that it is not for the Court, but solely for the Executive Director, to make such an assessment. |

| 104 | Accordingly, the fourth plea in law must be upheld and, on that basis also, the contested decision must be annulled, without there being any need to examine the third and fifth pleas in law. |

Costs

| 105 | Pursuant to Article 219 of the Rules of Procedure of the General Court, in decisions of the General Court given after its decision has been set aside and the case referred back to it, that court is to decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the Court of Justice. |

| 106 | Under Article 134(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. |

| 107 | Since EUIPO has been largely unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant relating to the proceedings instituted before the General Court and to the proceedings on the appeal before the Court of Justice, in accordance with the form of order sought by the applicant. |

|  | On those grounds,  THE GENERAL COURT (Second Chamber, Extended Composition)  hereby: |

|  | | 1. | Annuls Decision No ER 93419-2020 of the Executive Director of the European Union Intellectual Property Office (EUIPO) of 30 September 2020 concerning the request for an exemption submitted by Ms Nigar Kirimova pursuant to Article 120(4)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark; | |

|  | | 2. | Dismisses the action as to the remainder; | |

|  | | 3. | Orders EUIPO to pay the costs relating to the proceedings before the General Court and before the Court of Justice. | |

|  |  |
| --- | --- |
|  | Marcoulli  Tomljenović  Norkus  Valasidis  Spangsberg Grønfeldt  Delivered in open court in Luxembourg on 25 September 2024.  V. Di Bucci  Registrar  S. Papasavvas  President |

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[\*1](#c-ECR_62020TJ0727_EN_01-E0001)
) Language of the case: English.

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