CELEX: 62016TO0664(01)
Language: en
Date: 2018-05-30 00:00:00
Title: Order of the General Court (Fourth Chamber) of 30 May 2018.#PJ v European Union Intellectual Property Office.#EU trade mark — Representation by a lawyer who is not an independent third party with regard to the applicant — Replacement of a party to the proceedings — Transfer of the rights of the EU trade mark applicant — Representation by a lawyer who is not an independent third party with regard to the applicant for replacement — Inadmissibility.#Case T-664/16.

ORDER OF THE GENERAL COURT (Fourth Chamber)
      30 May 2018 (
            *1
         )
      (EU trade mark — Representation by a lawyer who is not an independent third party with regard to the applicant — Replacement of a party to the proceedings — Transfer of the rights of the EU trade mark applicant — Representation by a lawyer who is not an independent third party with regard to the applicant for replacement — Inadmissibility)
      In Case T‑664/16,
      
         PJ, represented by Mr S., lawyer,
      applicant,
      v
      
         European Union Intellectual Property Office (EUIPO), represented initially by S. Hanne, and subsequently by A. Söder, acting as Agents,
      defendant,
      the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
      
         Erdmann & Rossi GmbH, established in Berlin (Germany), represented by H. Kunz-Hallstein and R. Kunz-Hallstein, lawyers,
      ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 18 July 2016 (Case R 1670/2015-4), relating to invalidity proceedings between Erdmann & Rossi and PJ,
      THE GENERAL COURT (Fourth Chamber)
      composed of H. Kanninen, President, J. Schwarcz and C. Iliopoulos (Rapporteur), Judges,
      Registrar: E. Coulon,
      makes the following
      
         Order
      
      
         Background to the dispute
      
      
               1
            
            
               On 19 September 2011, the applicant, PJ, filed an application for registration of a European Union trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by 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)).
            
         
               2
            
            
               The mark in respect of which registration was sought is the word sign Erdmann & Rossi.
            
         
               3
            
            
               The goods and services for which registration was sought are in Classes 12, 37 and 42 of the Nice Agreement concerning the International Classification of Goods and Services for the purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:
               
                        –
                     
                     
                        Class 12: ‘Motor vehicles, in particular personalised vehicles; bodywork for motor vehicles’;
                     
                  
                        –
                     
                     
                        Class 37: ‘Including the modernisation of motor vehicles and structures for vehicles; maintenance and repair of motor vehicles’;
                     
                  
                        –
                     
                     
                        Class 42: ‘Design, moulding and technical development of bodywork for motor vehicles; planning arrangements for manufacture; manufacture of tools and equipment for motor vehicle construction’.
                     
                  
         
               4
            
            
               The mark was registered on 3 February 2012 under No 010310481.
            
         
               5
            
            
               On 26 March 2014, the intervener, Erdmann & Rossi GmbH, filed an application for a declaration that the contested mark was invalid on the basis of Article 52(1)(b) of Regulation No 207/2009 (now Article 59(1)(b) of Regulation No 2017/1001).
            
         
               6
            
            
               By decision of 29 June 2015, the Cancellation Division rejected the application for a declaration of invalidity in its entirety.
            
         
               7
            
            
               On 18 August 2015 the intervener filed a notice of appeal at EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation No 2017/1001), against the decision of the Cancellation Division.
            
         
               8
            
            
               By decision of 18 July 2016 (‘the contested decision’), the Fourth Board of Appeal of EUIPO upheld the appeal and annulled the Cancellation Division’s decision.
            
         
         Procedure and forms of order sought
      
      
               9
            
            
               The applicant brought the present action by application lodged at the Registry of the General Court on 14 September 2016. The application was signed by Mr S. in his capacity as a lawyer.
            
         
               10
            
            
               By document lodged at the General Court Registry on the same day, the applicant asked to be granted anonymity and for the confidential treatment of certain information vis-à-vis the public in accordance with Article 66 of the Rules of Procedure of the General Court.
            
         
               11
            
            
               By document lodged at the General Court Registry on 7 October 2016, the applicant informed the General Court of the fact that, following its request for anonymity and omission of certain information vis-à-vis the public of 14 September 2016, EUIPO had, provisionally and until the adoption by the Court of Justice of a final decision, rendered the contested decision and all correspondence lodged by the parties with the Cancellation Division and the Board of Appeal inaccessible on its website.
            
         
               12
            
            
               By judgment of 28 October 2016, the General Court upheld the applicant’s request to omit its name and address in publications relating to the present case and thereafter to replace its name with the letters ‘PJ’.
            
         
               13
            
            
               By decision of 24 January 2017 and following the applicant’s response to a written question from the General Court, the latter refused the applicant’s request for confidential treatment of certain information vis-à-vis the public.
            
         
               14
            
            
               On 28 March 2015, the intervener lodged a response at the Court Registry.
            
         
               15
            
            
               By document lodged at the General Court Registry on 31 March 2017, the Commission raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.
            
         
               16
            
            
               By letter lodged at the General Court Registry of 3 April 2017 and attached to the file by decision of the President of the Fourth Chamber of the General Court of 17 May 2017, EUIPO informed the General Court that the contested mark had been registered on 28 February 2017 in the EUIPO register for the benefit of its new proprietor, namely ‘[X] [GMbH & Co. KG]’. It is clear from the annexes attached to that letter that the registration was corrected by EUIPO and that the mark was registered on 1 March 2017 for the benefit of another proprietor, namely ‘[Y]-GmbH’.
            
         
               17
            
            
               By letter lodged at the General Court Registry on 8 May 2017, attached to the file by decision of the President of the Fourth Chamber of the General Court of 18 May 2017, the applicant asked, in particular, first, for the adoption of a measure of organisation of procedure under Article 89(3)(c) and (d) of the Rules of Procedure in order to clarify suspicions of tampering with the administrative case file and, second, the suspension, in accordance with Article 69(d) of the Rules of Procedure, of the present proceedings until the termination of the criminal investigations against members of staff of EUIPO.
            
         
               18
            
            
               By document lodged at the General Court Registry of 23 May 2017, EUIPO submitted new evidence in support of its plea of inadmissibility under Article 85(3) of the Rules of Procedure.
            
         
               19
            
            
               By document lodged at the General Court Registry on 23 May 2017, the applicant’s representative, Mr S., lodged a request under Article 174 of the Rules of Procedure for the substitution of [Y]-GmbH (‘the applicant for replacement’) in place of the applicant. On 1 June 2017, the Court invited the parties to the proceedings to submit their observations on that application for replacement pursuant to Article 176(2) of its Rules of Procedure.
            
         
               20
            
            
               By document lodged at the Court Registry on 24 May 2017, the applicant submitted its observations on EUIPO’s plea of inadmissibility.
            
         
               21
            
            
               By document lodged at the General Court Registry on 2 June 2017, the intervener submitted its observations on EUIPO’s letter of 3 April 2017 and the applicant’s letter of 8 May 2017.
            
         
               22
            
            
               By document lodged at the Registry of the General Court on 7 June 2017, the applicant submitted its observations on EUIPO’s letter of 3 April 2017. In particular, the applicant claims that its right to be heard and the principle of a fair hearing require that it is given the opportunity to respond to the intervener’s response of 28 March 2017.
            
         
               23
            
            
               By documents lodged at the General Court Registry on 9 and 15 June 2017, the intervener and EUIPO indicated that the application for substitution must be dismissed as inadmissible.
            
         
               24
            
            
               By decision of the President of the Fourth Chamber of the General Court of 14 June 2017, the new evidence presented by EUIPO by letter of 23 May 2017 (see paragraph 18 above) were attached to the file and a period was fixed, in accordance with Article 85(4) of the Rules of Procedure, to give the applicant and the intervener the opportunity to comment on that new evidence, which they did within the period prescribed on 28 and 20 June 2017 respectively.
            
         
               25
            
            
               By document lodged at the General Court Registry on 20 July 2017 the applicant repeated its request of 8 May 2017 to stay the proceedings in accordance with Article 69(d) of the Rules of Procedure.
            
         
               26
            
            
               By documents lodged at the General Court Registry on 14 and 21 August 2017 respectively, the intervener and EUIPO submitted their observations on the request to stay the proceedings, claiming that it should be refused.
            
         
               27
            
            
               By decision of 9 October 2017, the General Court refused the application to stay the proceedings brought by the applicant.
            
         
               28
            
            
               In the application, the applicant claims that the Court should:
               
                        –
                     
                     
                        annul the contested decision;
                     
                  
                        –
                     
                     
                        order EUIPO to pay the costs of the present action and in the invalidity proceedings before the Board of Appeal and before the Cancellation Division.
                     
                  
         
               29
            
            
               In the plea of inadmissibility, EUIPO contends essentially that the Court should:
               
                        –
                     
                     
                        dismiss the application as inadmissible;
                     
                  
                        –
                     
                     
                        order the applicant to pay the costs.
                     
                  
         
               30
            
            
               In its observations on the plea of inadmissibility, the applicant contends that the Court should:
               
                        –
                     
                     
                        dismiss the objections of inadmissibility;
                     
                  
                        –
                     
                     
                        declare the action to be well founded;
                     
                  
         
               31
            
            
               In its response, the intervener contends that the Court should:
               
                        –
                     
                     
                        dismiss the application;
                     
                  
                        –
                     
                     
                        order the applicant to pay the costs.
                     
                  
         
         Law
      
      
               32
            
            
               Pursuant to Article 130(1) of the Rules of Procedure, the defendant may ask the Court to rule on the question of admissibility without considering the merits of the case. In accordance with Article 130(6) of those rules, the Court may decide to open the oral procedure in respect of the plea of inadmissibility.
            
         
               33
            
            
               In this case, the Court considers that it has sufficient information from the documents before it to enable it to give judgment without opening the oral procedure.
            
         
               34
            
            
               Before examining the admissibility of the present action and the application for substitution, it is appropriate to rule on the applicant’s form of order asking the Court to dismiss the plea of admissibility of 31 March 2017 and the evidence of 23 May 2017 as inadmissible.
            
         
         
            Admissibility of the plea of illegality raised by the applicant
         
      
      
               35
            
            
               The applicant challenges the admissibility of EUIPO’s plea of inadmissibility on the ground that it is out of time. More specifically, it argues, first, that EUIPO has failed to comply with the period of two months prescribed by Article 81(1) of the Rules of Procedure and, second, the grant of a single extension of the time limit on account of distance of 10 days laid down by Article 60 of thereof is inapplicable with respect to a transmission by the e-Curia application.
            
         
               36
            
            
               In that connection, it is clear from the reading of Article 81 and Article 130(1) of the Rules of Procedure that a plea of inadmissibility raised by the defendant must be made by separate document within two months from the service of the application. In accordance with Article 60 thereof, that that period may be extended by a single period of 10 days on account of distance (order of 23 March 2017, Gollnisch v Parliament, T‑624/16, not published, EU:T:2017:243, paragraph 32).
            
         
               37
            
            
               Furthermore, by decision of 14 September 2011, relating to the lodgement and service of procedural documents by way of the e-Curia application (OJ 2011 C 289, p. 9), the General Court introduced a means of lodging and serving procedural documents electronically. In accordance with Article 7, second paragraph, first sentence, thereof, a procedural document is to be served at the time when the intended recipient (representative or his assistant) requests access to that document.
            
         
               38
            
            
               In the present case, since a message was sent to EUIPO by the e-Curia application on 24 January 2017 and EUIPO requested access to the originating application on 26 January 2017, the period within which to lodge the plea of inadmissibility expired on 5 April 2017.
            
         
               39
            
            
               It follows that, since EUIPO’s plea of inadmissibility was lodged by separate document at the Registry of the General Court on 31 March 2017, it was lodged within that period.
            
         
               40
            
            
               That finding cannot be called into question by the applicant’s argument that the extension of time on account of distance is not applicable in the present case, on the ground that the principle of equal treatment requires that Article 73(3) of the Rules of Procedure, which states that that period is not applicable where the lodging of the original act is preceded by sending it to the Registry by telefax, should be applied by analogy to the lodging of a document by way of the e-Curia application. Contrary to the applicant’s argument, the single extension of on account of distance of 10 days provided for by Article 60 of the Rules of Procedure applies to all the procedural time limits laid down by the Treaties, the Statute of the Court of Justice of the European Union and the Rules of Procedure, irrespective of the method of lodging the procedural document (paper version or by means of the e-Curia application). In the absence of any indications to the contrary in the Rules of Procedure concerning the lodging of an act through the e-Curia application, it must be stated that the extension on account of distance of 10 days laid down by Article 60 of the Rules of Procedure applies to the lodging of a plea of inadmissibility via the e-Curia application (see, to that effect, order of 23 March 2017, Gollnisch v Parliament, T‑624/16, not published, EU:T:2017:243, paragraphs 32 and 33).
            
         
               41
            
            
               Finally, the applicant’s argument that EUIPO’s plea of admissibility was not lodged in accordance with Article 5 of the decision of the General Court of 14 September 2011 on the lodging and service of procedural documents by means of e-Curia, must be dismissed as unfounded. It is clear from the cover page of the plea of inadmissibility, which was served on the parties that the lodgement was validated by means of the e-Curia application by EUIPO agent Ms A. Söder on 31 March 2017. As to the applicant’s claim that ‘it does not appear from the examination of the file carried out by the [applicant’s representative] on 26 [April] 2017 that, when the document was lodged on 31 March 2017, Ms [A. Söder’s] log-in and password were used’, it must be held that it is technically impossible for the representative a party to verify himself if and when the representative of the other party used his log-in or password for the e-Curia IT application.
            
         
               42
            
            
               Therefore, the applicant’s plea of inadmissibility must be dismissed.
            
         
         
            The admissibility of the evidence submitted by EUIPO on 23 May 2017 under Article 85(3) of the Rules of Procedure
         
      
      
               43
            
            
               The applicant claims that the new evidence submitted by EUIPO in support of its plea of inadmissibility, by letter of 23 May 2017, is inadmissible. The letter was sent to EUIPO by the intervener on 11 May 2017 and contains an extract from the gemeinsames Registerportal der Länder (common register portal of the German Länder) which offers, against payment, access to all the commercial registers of all the German Länder. According to EUIPO that extract shows, first, that the applicant is authorised to represent [Z] law firm alone and to conclude legal transactions with himself and, second, that Mr S., the lawyer mandated by the applicant in the proceedings before the General Court is not a member of the law firm mentioned above. Therefore, it is clear that there is an employment contract and, consequently, an employer-employee relationship between the applicant’s law firm and Mr S.
            
         
               44
            
            
               According to the applicant, EUIPO could and should have consulted that register in order to adduce it as evidence at the time when the plea of inadmissibility was lodged, since the extract from the register submitted has existed since 2013 and EUIPO indicated a number of times in its plea of inadmissibility that the law firm concerned was a professional partnership.
            
         
               45
            
            
               It should be recalled that, according to Article 85(1) and (3) of the Rules of Procedure, evidence produced or offered is to be submitted in the first exchange of pleadings, the main parties exceptionally having the opportunity to produce or offer further evidence before the oral part of the procedure is closed, provided that the delay in the submission of such evidence is justified.
            
         
               46
            
            
               In the present case, it must be held that EUIPO produced the extract mentioned in paragraph 43 above on 23 May 2017, almost two months after the plea of inadmissibility of 31 March 2017 was lodged. Nevertheless, the late submission of evidence by EUIPO is due to the fact that, first, the letter containing that extract was sent to it by the intervener only on 11 May 2017, second, EUIPO did not have access to the common register portal of the German Länder and, third, gaining such access against payment is not justified with regard to EUIPO’s activities.
            
         
               47
            
            
               Therefore, the late submission of the new evidence is justified and is therefore admissible. In any event, it must be recalled that the question of the applicant’s representation is a matter of public policy (see, to that effect, the order of 5 September 2013, ClientEarth v Council, C‑573/11 P, not published, EU:C:2013:564, paragraph 20) and may, on that basis, and under Article 129 of the Rules of Procedure, be examined by the General Court of its own motion at any time.
            
         
         
            Admissibility of the action
         
      
      
               48
            
            
               By its plea of inadmissibility EUIPO submits essentially that the applicant is not properly represented by a lawyer, within the meaning of Article 51(1) of the Rules of Procedure, read together with Article 19, third paragraph of the Statute of the Court of Justice of the European Union, and that the application does not satisfy the requirements of Article 73(1) of the Rules of Procedure.
            
         
               49
            
            
               In support of its plea of inadmissibility, EUIPO relies on two grounds, first, the fact that the applicant, by giving [Z] law firm in which he is a partner a general authority to act, necessarily gives himself authority to act and, second, the fact that the representative who signed and filed the action, Mr S., was employed by that law firm and could not satisfy the requirement of independence deriving from the Statute of the Court of Justice of the European Union and the Rules of Procedure in so far as he in fact depends on the applicant, who as a partner in and owner of that law firm, has management authority over him.
            
         
               50
            
            
               The applicant challenges EUIPO’s arguments. According to the applicant, neither the conditions for the existence of ‘self-representation’ by him, nor the conditions relating to a lack of independence on the part of his representative are satisfied in the present case.
            
         
               51
            
            
               It must be recalled that under Article 19, third and fourth paragraphs, and Article 21, first paragraph, of the Protocol on the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to Article 53, first paragraph thereof and, according to Article 73(1), first subparagraph, of the Rules of Procedure of the General Court, parties, other than the Member States and institutions of the European Union, the Surveillance Authority of the European Free Trade Association (EFTA), or the States which are parties to the Agreement on the European Economic Area (EEA), must be represented by a lawyer who is authorised to practise before a court of a Member State or of another State which is party to the EEA Agreement. Further, the application must contain the applicant’s name and permanent address and a statement of the signatory’s capacity. The original of every pleading must be signed by the party’s agent or lawyer.
            
         
               52
            
            
               According to settled case-law, it is clear from the abovementioned provisions and, in particular, the use of the word ‘represented’ in Article 19, third paragraph of the Statute of the Court of Justice of the European Union that, for the purposes of bringing an action before the General Court, a ‘party’ within the meaning of that article, in whatever capacity, is not permitted to act itself but must use the services of a third person authorised to practise before a court of a Member State or of a State which is a party to the EEA Agreement (see order of 20 July 2016, PITEE v Commission, T‑674/15, not published, EU:T:2016:444, paragraph 8 and the case-law cited).
            
         
               53
            
            
               In that connection, it must be recalled that the lawyer’s role in the European Union legal order, which is derived from the legal traditions common to the Member States, and on which Article 19 of the Statute of the Court of Justice of the European is based, is that of collaborating in the administration of justice and being required to provide, in full independence and in the overriding interests of justice, such legal assistance as his client requires (see order of 16 September 2016, Salavrakos v Parliament, T‑396/16, not published, EU:T:2016:588, paragraph 9 and the case-law cited). That assistance is provided by a lawyer who, structurally, hierarchically and functionally, is a third party in relation to the undertaking receiving that advice (judgment of 17 September 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission, T‑125/03 and T‑253/03, EU:T:2007:287, paragraph 168). That interpretation of the requirement of the independence of lawyers is relevant in the context of representation before the Courts of the European Union (see, to that effect, order of 9 November 2011, Glaxo Group v OHIM — Farmodiética (ADVANCE), T‑243/11, not published, EU:T:2011:649, paragraph 16).
            
         
               54
            
            
               Thus, it has already been held that the requirement of the independence of lawyers requires the absence of any employment relationship between the lawyer and his client. The concept of the independence of lawyers is determined not only positively, that is by reference to professional ethical obligations, but also negatively, that is to say, by the absence of an employment relationship (see judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej and Poland v Commission, C-422/11 P and C-423/11 P, EU:C:2012:553, paragraph 24 and the case-law cited).
            
         
               55
            
            
               That reasoning applies with the same force in a situation in which the lawyers are employed by an entity connected to the party they represent (judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej and Poland v Commission, C-422/11 P and C-423/11 P, EU:C:2012:553, paragraph 25 and the case-law cited).
            
         
               56
            
            
               It has also been held that the lawyer of a party, within the meaning of Article 19, third paragraph, of the Statute of the Court of Justice of the European Union, must not have any personal connection to the case in question or any relationship of dependence with his client of such a nature as to place him at risk of not being able to fulfil his vital role of representative of the law in the most appropriate manner. In particular, the Court has held that the financial or structural relationships that the representative has with his client cannot be such as to give rise to confusion between the client’s own interests and the personal interests of its representative (order of 6 September 2011, ClientEarth v Council, T‑452/10, not published, EU:T:2011:420, paragraph 20).
            
         
               57
            
            
               The requirement imposed by EU law that a non-privileged party must be represented before the Court by an independent third party cannot therefore be regarded as being a requirement designed solely to exclude representation by employees of the principal or by those who are financially dependent on it (see, to that effect, order of 5 September 2013, ClientEarth v Council, C‑573/11 P, not published, EU:C:2013:564, paragraph 13). It is a general requirement, the observance of which must be examined on a case-by-case basis (order of 20 November 2017, BikeWorld v Commission, T‑702/15, EU:T:2017:834, paragraph 35).
            
         
               58
            
            
               It is in the light of those principles that the Court must determine whether the applicant’s claims are well founded.
            
         
               59
            
            
               In the first place, with regard to the first plea of inadmissibility raised by EUIPO alleging ‘self-representation’, it must be stated that the representative who signed and lodged the originating application through the e-Curia system is Mr S. and not the applicant. It follows that the first ground of inadmissibility raised by EUIPO must be dismissed as unfounded.
            
         
               60
            
            
               That finding cannot be called into question by EUIPO’s argument that the applicant gave [Z] law firm, of which he is one of the two founding partners, a general authority to act which is, in reality, a power of self-representation. In that regard, it should be noted that, under Article 51(3) of the Rules of Procedure, where the party represented by the lawyer is a legal person governed by private law, the lawyer must lodge at the Registry an authority to act given by that person. That requirement applies only where the applicant is a natural person, as in the present case. Therefore, the fact that the applicant gave [Z] law firm authority to act has no effect on the assessment of the alleged self-representation.
            
         
               61
            
            
               Second, as regards the second plea of inadmissibility relied on by EUIPO, which concern the question of whether Mr S. is in a position to provide the applicant with ‘fully independent’ legal assistance, it must be examined whether the connections between Mr S. and the applicant are compatible with the requirements applicable to the representation of non-privileged parties before the Courts of the European Union.
            
         
               62
            
            
               In that connection, it is common ground that the applicant is one of the cofounders of [Z] law firm and one of its two partners. Furthermore, it is clear from the file and, in particular, the heading used to lodge the application and from the law firm’s website that Mr S. is not a partner in the law firm. It is also clear from the file that [Z] law firm is a registered company which is legally separate from the applicant, even if the latter is authorised to represent it (see evidence submitted by EUIPO on 23 May 2017, paragraphs 43 to 47 above). Furthermore, it has been established that the applicant instructed [Z] law firm to defend him and that Mr S. acts on behalf of that law firm.
            
         
               63
            
            
               Even if the applicant is not the only partner in [Z] law firm and, as he points out in his written observations on the plea of inadmissibility, since decisions of that law firm are taken unanimously he cannot ‘on his own hire, dismiss or promote’ one of the members of staff of that law firm, the fact remains that precisely because decisions are taken unanimously by the two partners, the applicant exercises effective control over all the decisions of that firm, including decisions relating to its members of staff, including Mr S. Therefore, despite his enrolment with a Bar or Law Society and the professional ethical obligations to which he is subject, as a result, Mr S. does not enjoy the same degree of independence from his employer as a lawyer working in an external law firm does in relation to his client. Consequently, Mr S. is less able to deal effectively with any conflicts between his professional obligations and the aims of his client (see, by analogy, judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals and Others v Commission, C‑550/07 P, EU:C:2010:512, paragraph 45).
            
         
               64
            
            
               Furthermore, Mr S.’s relationship with [Z] law firm, in spite of the fact that it is legally separate from the applicant is liable to affect his independence since the interests of [Z] law firm are largely the same as those of the applicant. Therefore, there is a risk that Mr S.’s professional opinion of those advisers would be, at least partly, influenced by his working environment (judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej, C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraph 25, and order of 14 November 2016, Dimos Athinaion v Commission, T‑360/16, not published, EU:T:2016:694, paragraph 10).
            
         
               65
            
            
               Therefore, professional relationship that Mr S. had with the applicant at the time the application was lodged was such that he may have been unable to perform his main role as an officer of the court in the most appropriate manner.
            
         
               66
            
            
               That conclusion cannot be called in question by the applicant’s arguments.
            
         
               67
            
            
               First, the applicant asserts that there is no possible threat to Mr S.’s independence given that such a threat is contrary to the German national rules of the Bundesrechtsanwaltsordnung (Federal Law on lawyers) of 1 August 1959 (BGBl. 1959 I., p. 565), and the Berufsordnung für Rechtsanwälte (Regulation for the legal profession). In that connection, it must be observed that, although the conception of the lawyer’s role in the legal order of the European Union derives from the legal traditions common to the Member States, in the context of disputes brought before the Courts of the European Union that conception is implemented objectively and is necessarily independent from the national legal orders. Therefore, the provisions concerning the representation of non-privileged parties before the Courts of the European Union must be interpreted, as far as possible, independently and without reference to national law (judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej, C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraphs 34 and 35, and order of 14 November 2016, Dimos Athinaoin v Commission, T‑360/16, not published, EU:T:2016:694, paragraph 13). As is clear from paragraphs 53 to 56 above, the concept of independence of lawyers in European Union law is defined not only in a positive manner, on the basis of membership of a Bar and adherence to a Code of Conduct and Code of Ethics, but also negatively.
            
         
               68
            
            
               Second, the applicant submits that his business activity, as a natural person who is the proprietor of the contested mark, is clearly separate from that of the legal person and, in particular, [Z] law firm, which is not a party to the dispute. Although it is true that the legal person enjoys legal independence in relation to its partners, in the present case, it appears to be difficult to formally establish a boundary between the conduct of the legal person and that of the natural person. It is evident that the activities of the legal person benefit the interests and activities of the partner as a natural person.
            
         
               69
            
            
               Third, the applicant states that the independence of lawyers required by the case-law is not a criterion laid down by Article 19 of the Statute of the Court of Justice of the European Union, nor is it mentioned in Article 51 of the Rules of procedure, and that the inadmissibility of the action is, therefore, in contradiction with the principle of legal certainty, since the latter requires that the rule of law which impose charges on individuals must be clear and precise and its application must be foreseeable for the parties concerned.
            
         
               70
            
            
               In that connection it must be observed that the general principle of legal certainty is a fundamental principle of EU law which requires, in particular, that rules should be clear and precise, so that individuals may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly. However, in order to determine whether the requirements which derive from that principle are satisfied, all the relevant elements which emerge from the terms, objectives or general scheme of that legislation and, if need be, with the assistance of the courts’ interpretation of it.
            
         
               71
            
            
               First of all, it must be held that the expression ‘[o]ther parties must be represented by a lawyer’, in Article 19, third paragraph, of the Statute of the Court of Justice of the European Union, therefore precludes a party and his representative from being the same person, (see, to that effect, orders of 3 September 2015, Lambauer v Council, C‑52/15 P, not published, EU:C:2015:549, paragraph 20 and the case-law cited, and 16 November 2016, Garcia Ruiz v Parliament, T‑628/16, not published, EU:T:2016:669, paragraph 8 and the case-law cited). Next, the conception of the lawyer’s role in the EU legal order, and in particular, the requirement of independence, the observance with which must be examined on a case by case basis (see paragraph 57 above) derives from the legal traditions common to the Member States (see paragraph 53 above). Finally, it follows from settled case-law of the EU judicature that fully independent legal assistance is that provided by a lawyer who, structurally, hierarchically and functionally, is a third party in relation to the undertaking receiving that advice (paragraph 53 above). Therefore, the fact that the requirement of independence are not expressly provided by the Statute of the Court of Justice of the European Union or the Rules of Procedure cannot undermine the principle of legal certainty.
            
         
               72
            
            
               It follows from the foregoing that, in so far as the application was not signed by an independent lawyer, the present action was not brought in accordance with the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union and with Article 51(1) of the Rules of Procedure.
            
         
               73
            
            
               Therefore, and without there being any need to order the measure of organisation of procedure requested by the applicant, the action must be dismissed as inadmissible.
            
         
         
            Application for replacement of a party
         
      
      
               74
            
            
               EUIPO and the intervener rely on the inadmissibility of the application for replacement of the applicant by the applicant for replacement which, according to the applicant, became the proprietor of the contested mark and therefore the successor. According to EUIPO and the intervener, the applicant for replacement is not represented in accordance with Article 175(3) of the Rules of Procedure.
            
         
               75
            
            
               Article 176(3) of the Rules of Procedure of the General Court provides that the decision on the application for replacement is to take the form of a reasoned order of the President or to be included in the decision closing the proceedings.
            
         
               76
            
            
               In accordance with Article 174 of the Rules of Procedure, where an intellectual property right affected by the proceedings has been transferred to a third party by a party to the proceedings before the Board of Appeal of EUIPO, the successor to that right may apply to replace the original party in the proceedings before the General Court Article 176(5) of the Rules of Procedure specifies that, if the application for replacement is granted, the successor to the party who is replaced must accept the case as he finds it at the time of that replacement. He is bound by the procedural documents lodged by the party whom he replaces. Furthermore, it is clear from Articles 17 and 24 of Regulation No 207/2009 (now Articles 20 and 28 of Regulation No 2017/1001) that, after entry of the transfer of an application for an EU trade mark in the EUIPO Register, the successor may rely on the rights deriving from that application.
            
         
               77
            
            
               Finally, under Article 175(3) of the Rules of Procedure, the applicant for replacement is to be represented in accordance with the provisions of Article 19 of the Statute of the Court of Justice of the European Union.
            
         
               78
            
            
               It must be stated, first, that there is no longer any need to adjudicate on the application for replacement since the General Court has taken the view, for the reasons set out in paragraph 59 to 73 above, that the action was inadmissible. In a case like that in the present case, in which the applicant for replacement is closely linked to the applicant, the application for replacement no longer has importance once the action is dismissed as being inadmissible, on the ground that there is an irregularity in the representation of the applicant.
            
         
               79
            
            
               Second, and in any event, it must be observed that the application for replacement cannot be regarded as admissible in the light of the facts in the present case. More specifically, Mr S. informed the General Court of the transfer of the application for registration at issue from the applicant to the applicant for replacement and requested, as the representative of the latter, the replacement of the applicant in the present proceedings by the applicant for replacement. In particular, Mr S. annexed, as evidence of the transfer of the application for the contested mark to the applicant for replacement, a communication from EUIPO of 1 March 2017 and an extract from the EUIPO Register. Mr S. also provided a copy of the general power to act given to [Z] law firm by the applicant for replacement.
            
         
               80
            
            
               As stated in paragraph 77 above, the conditions for representation according to the provisions of Article 19 of the Statute of the Court of Justice of the European Union apply also in in context of an application for replacement. In that regard, it must be stated that the lawyer who signed the application for replacement, Mr S. is not an independent lawyer with regard to the applicant for replacement, within the meaning of Article 19 of the Statute of the Court of Justice of the European Union, since the manager of the applicant for replacement and the signatory of the general power to act referred to in paragraph 79 above is the applicant, who is one of the only two partners in [Z] law firm, in which Mr S. was practising as a lawyer when the application for replacement was field (see, in that regard, paragraphs 63 to 65 above).
            
         
               81
            
            
               In those circumstances, there is no need to adjudicate on the application for replacement made by the applicant for replacement.
            
         
         Costs
      
      
               82
            
            
               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. Since the appellant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought to that effect by EUIPO and the intervener.
            
         
               83
            
            
               Under Article 176(4) of the Rules of Procedure, if the application for replacement is refused, a decision is to be given as to the costs relating to that application, including the costs of the applicant for replacement, pursuant to the provisions of Articles 134 and 135. Since the application for replacement has been dismissed and no decision as to the costs relating to the application for replacement has been submitted, it must be held, first, that the applicant for replacement is to bear its own costs and, second, that each party is to bear its own costs relating to the application for replacement.
            
          
            
               On those grounds,
               THE GENERAL COURT (Fourth Chamber)
               hereby orders:
            
          
            
               
                        
                           1.
                        
                     
                     
                        
                           The action shall be dismissed as inadmissible.
                        
                     
                  
          
            
               
                        
                           2.
                        
                     
                     
                        
                           There is no need to adjudicate on the application for replacement.
                        
                     
                  
          
            
               
                        
                           3.
                        
                     
                     
                        
                           PJ is to pay the costs.
                        
                     
                  
          
            
               
                        
                           4.
                        
                     
                     
                        
                           [Y]-GmbH, and each party, is to bear its own costs relating to the application for replacement.
                        
                     
                  
          
               
                  
                     Luxembourg, 30 May 2018.
                     
                        
                           E. Coulon
                           H. Kanninen
                        
                        
                           Registrar
                           President
                        
                     
                  
               
            (
            *1
         )	Language of the case: German.