CELEX: C2001/331/17
Language: en
Date: 2001-11-24 00:00:00
Title: Case C-361/01 P: Appeal brought on 24 September 2001 by Christina Kik against the judgment delivered on 12 July 2001 by the Fourth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-120/99 between Christina Kik, supported by the Hellenic Republic and the Office for Harmonisation in the Internal Market (Trade Marks and Designs), supported by the Kingdom of Spain and the Council of the European Union

24.11.2001             EN                    Official Journal of the European Communities                                          C 331/11
Appeal brought on 24 September 2001 by Christina Kik                          No 40/94, an application submitted in Dutch is never
against the judgment delivered on 12 July 2001 by the                         dealt with in that language and all opposition, revocation
Fourth Chamber (Extended Composition) of the Court of                         or invalidity proceedings take place in one of the
First Instance of the European Communities in Case                            Office’s working languages, the appellant submits that by
T-120/99 between Christina Kik, supported by the Hellenic                     introducing those rules governing languages the Council
Republic and the Office for Harmonisation in the Internal                     has failed to fulfil its obligation to treat all the citizens of
Market (Trade Marks and Designs), supported by the                            the Union quite equally. A distinct group of citizens of
Kingdom of Spain and the Council of the European Union                        the Union, namely, nationals of Member States the
                                                                              languages of which are not working languages of the
                        (Case C-361/01 P)                                     Office, are discriminated against in comparison with
                                                                              nationals of the other Member States because they
                         (2001/C 331/17)                                      cannot follow proceedings before the Office in their own
                                                                              language, which causes them to incur considerably higher
                                                                              costs and entails a greater risk of inaccuracy.
An appeal against the judgment delivered on 12 July 2001 by                   In exercising their profession, trade mark agents of the
the Fourth Chamber (Extended Composition) of the Court of                     Member States whose language is not one of the working
First Instance of the European Communities in Case T-120/99                   languages of the Office are placed in a situation substan-
between Christina Kik, supported by the Hellenic Republic,                    tially unfavourable to competition. It will always be
and the Office for Harmonisation in the Internal Market (Trade                cheaper, and therefore more attractive, for an applicant
Marks and Designs), supported by the Kingdom of Spain and                     for a Community trade mark to be assisted by a trade
the Council of the European Union was brought before the                      mark agent whose mother tongue belongs to the Office’s
Court of Justice of the European Communities on 24 Septem-                    working languages. Consequently, the rules governing
ber 2001 by Ms Kik, represented by E.H. Pijnacker Hordijck                    languages leads to significant distortion of competition
and S.B. Noë, lawyers, the other parties to the proceedings                   on the Community market.
being the Office for Harmonisation in the Internal Market
(Trade Marks and Designs, ‘OHIM’), represented by O. Montalto                 To the applicant’s mind, breach of the prohibition of
and J. Miranda de Sousa, acting as Agents, and J. Bourgeois,                  discrimination cannot be justified by considerations of
Lawyer, the Hellenic Republic, represented by K. Samoni-                      practical expediency, given the fundamental nature of the
Randou and S. Vodina, acting as Agents, the Kingdom of                        principle of equal treatment.
Spain, represented by S. Ortiz Vaamonde, acting as Agent, and                 Even if practical and financial considerations could justify
the Council of the European Union, represented by G. Houttin                  derogation from the principle of equal treatment, the fact
and A. Lo Monaco, acting as Agents.                                           would remain that the rules governing languages laid
                                                                              down in Regulation (EC) No 40/94 are not proportional.
The appellant claims that the Court should:                                   The Council could have designated one official language
                                                                              for all proceedings before the Office, for example English.
—     set aside the contested judgment (1) of the Court of First              That would have had a considerably less discriminatory
      Instance,                                                               effect and distorted the market considerably less than the
                                                                              rules governing languages in question. In the appellant’s
—     annul the decision of the Board of Appeal of the Office                 opinion, there is no reasonable justification for less
      for Harmonisation in the Internal Market of 19 March                    favourable treatment of, for example, Dutch, which is
      1999,                                                                   spoken by more than 20 million citizens of the Union, in
                                                                              relation to Spanish or Italian.
—     order the Office for Harmonisation in the Internal Market
      to pay the costs, including the costs incurred before the               Finally, the fact that the Council adopted Regulation (EC)
      Court of First Instance.                                                No 40/94 unanimously cannot constitute a factor of
                                                                              any consequence. The ‘rule of law’ implies that the
                                                                              Community legislature is also subject to the law.
Pleas in law and main arguments                                               In the alternative: at the very least, the second sentence of
                                                                              subparagraph 4 is unlawful. This sentence is also contrary
—     Misinterpretation of Article 115 of Regulation (EC)                     to the principle which forms the basis of subparagraph 1
      No 40/94 (2), the Court of First Instance erred in its                  and of the first sentence of subparagraph 4 namely, that
      understanding that those rules mean that all applications               the language used for filing the application is to be the
      are to be dealt with in one of the working languages of                 language of the proceedings. The second sentence of
      the Office.                                                             subparagraph 4, as is clear from the settled practice of
                                                                              the Office, deprives that principle of all meaning. The
—     Breach of the law, in particular Article 6 EC: just as, in
                                                                              various provisions of Article 115 are, consequently,
      accordance with this provision of the Treaty, the Member
      States are obliged, in the field of language, to treat their            mutually inconsistent.
      own nationals and those of other Member States quite
      equally in situations governed by Community law, so,              (1) Not yet published.
      according to the appellant, Article 6 a fortiori requires         (2) Council Regulation (EC) No 40/94 on the Community trade mark
      the Community legislature to treat all citizens of the                (OJ L 11 of 14.1.1994, p. 11).
      Union quite equally. Since, under the rules governing
      languages introduced by Article 115 of Regulation (EC)