Christina Kik v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2003-09-09
81. As far as the substance of the ground of appeal is concerned, it must be stated first of all that, in the light of what has been said in this judgment in respect of the first ground of appeal, the scope of this second ground is limited to an assessment of the legality of the language regime at the Office in requiring that a second language be chosen as a possible language of proceedings in opposition, revocation and invalidity proceedings and for   " written communications"  within the meaning of the second sentence of Article 115(4) of Regulation No 40/94.  It is necessary to determine whether that regime infringes a principle of equality of languages that is alleged to exist, as described by the appellant.
82. As the appellant points out, the Treaty contains several references to the use of languages in the European Union.  None the less, those references cannot be regarded as evidencing a general principle of Community law that confers a right on every citizen to have a version of anything that might affect his interests drawn up in his language in all circumstances.
83. With regard to relations between citizens and the Community institutions and bodies, Article 8d of the Treaty, as amended by the Treaty of Amsterdam, requires,  inter alia , that the institutions and certain bodies correspond with the citizens of the Union in one of the languages mentioned in Article 248 of the Treaty.  That provision, which was not yet in force when the contested act was adopted, is not in any event generally applicable to all bodies in the Union.  In particular it does not apply to the Office, as the Court of First Instance correctly points out at paragraph 64 of the contested judgment.
84. Moreover, Article 217 of the Treaty authorises the Council to determine the rules governing the languages of the institutions of the Community, acting unanimously.  It was in application of that provision that it adopted Regulation No 1, Article 1 of which lays down the official languages and working languages of the Community institutions.  Those official languages are not, it will be observed, exactly the same as those identified in Articles 8d and 248 of the Treaty.
85. Further, Regulation No 1, in particular Article 4, requires that regulations and other documents of general application be drafted in the eleven official languages of the Union.  It follows from that provision, and from Article 191 of the EC Treaty (now Article 254 EC) requiring publication in the  Official Journal of the European Union  of regulations, directives, and decisions adopted in accordance with the procedure referred to in Article 189b of the EC Treaty (now, after amendment, Article 251 EC), read in conjunction with Article 5 of Regulation No 1, which provides for the publication of the Official Journal in the official languages, that an individual decision need not necessarily be drawn up in all the official languages, even though it may affect the rights of a citizen of the Union other than the person to whom it is addressed, for example a competing economic operator.
86. For an institution to address a citizen in his language does not therefore resolve all the linguistic difficulties encountered by citizens in the context of the activities of the Union ' s institutions and bodies.  Indeed it is a difficulty of that kind that is brought to the fore in this case since, with the exception of the   " written communications"  referred to in the second sentence of Article 115(4) of Regulation No 40/94, which will be dealt with at paragraph 98 of this judgment, the Office ' s language regime cannot be challenged in regard to the way in which the Office deals directly with the applicant, as the procedure must be conducted in the language used for filing the Community trade mark application.  That regime is, on the other hand, subject to criticism for the way in which it regulates relations between several parties with possibly different languages, in the context of opposition, revocation and invalidity proceedings.
87. Nor can the second paragraph of Article 248 of the Treaty, as amended by the Treaty of Amsterdam, or the Court ' s case-law on the interpretation of Community law be relied on in support of a possible principle of equality of languages.  Although equal account must be taken of all the authentic versions of a text when interpreting that text, that holds good only in so far as such versions exist and are authentic.  Consequently, even if an individual decision is published in the  Official Journal of the European Union  and is therefore translated into all the languages for the information of citizens, only the language used in the relevant procedure will be authentic and will be used to interpret that decision.
88. Account must also be taken of the fact that the Community trade mark was created for the benefit not of all citizens, but of economic operators, and that economic operators are not under any obligation to make use of it.
89. Whilst the monopoly right to use a trade mark is recognised by a public authority, the trade mark right is essentially a tool used by economic operators in the context of their professional activities to produce profits.  The legislature is therefore free to require that they should bear, in whole or at least in part, the operating costs of a body created to register Community trade marks.
90. The fifth recital in the preamble to Regulation No 40/94 states as follows:   " the Community law relating to trade marks ... does not replace the laws of the Member States on trade marks; ... it would not in fact appear to be justified to require undertakings to apply for registration of their trade marks as Community trade marks; ... national trade marks continue to be necessary for those undertakings which do not want protection of their trade marks at Community level" .
91. Economic operators none the less have an interest in an instrument such as the Community trade mark, made available to them by the Community legislature, which enables them to avoid filing multiple national trade mark applications, with all the translation costs that that entails (see on this point, by way of analogy, the arguments put forward by BASF AG relating to the costs of translating European patent specifications set out at paragraph 12 of the judgment in Case C-44/98  BASF  [1999] ECR I-6269).  For persuasive evidence of that interest, it is sufficient to note the considerable number of Community trade mark applications which, surpassing initial predictions, have been filed since the Office was set up.
92. It follows from all of those facts that the language regime of a body such as the Office is the result of a difficult process which seeks to achieve the necessary balance between the interests of economic operators and the public interest in terms of the cost of proceedings, but also between the interests of applicants for Community trade marks and those of other economic operators in regard to access to translations of documents which confer rights, or proceedings involving more than one economic operator, such as opposition, revocation and invalidity proceedings.
93. The Court of First Instance was therefore right to find, at paragraph 62 of the contested judgment, that, in determining the official languages of the Community which may be used as languages of proceedings in opposition, revocation and invalidity proceedings, where the parties cannot agree on which language to use, the Council was pursuing the legitimate aim of seeking an appropriate linguistic solution to the difficulties arising from such a failure to agree.
94. Similarly, the Court of First Instance was right to hold, at paragraph 63 of the contested judgment, that, even if the Council did treat official languages of the Community differently, its choice to limit the languages to those which are most widely known in the European Community is appropriate and proportionate.
95. In those circumstances, the appellant ' s argument that it would be less discriminatory to choose a single language rather than five is not apposite.
96. Finally, as regards the written communications referred to in the second sentence of Article 115(4) of Regulation No 40/94, it must be pointed out that, as indicated at paragraphs 45 and 47 of this judgment, that term must be interpreted strictly and can only relate to communications which, from their content, cannot be regarded as amounting to procedural documents.  Since the use of the second language in this context cannot adversely affect the legal interests of an applicant for a Community trade mark, it follows that any difference in treatment that might result from use of the second language would be negligible in scope and in any event justified by the operating needs of the Office.
97. It follows from all those considerations that the second ground of appeal must also be rejected as unfounded.
Objection of failure to state reasons
Arguments of the Hellenic Republic
102. It should be observed in that connection that the Court has consistently held that the scope of the obligation to state reasons depends on the nature of the measure in question and that, in the case of measures of general application, the statement of reasons may be confined to indicating the general situation which led to its adoption, on the one hand, and the general objectives which it is intended to achieve, on the other.  If the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made (Case C-150/94  United Kingdom  v  Council  [1998] ECR I-7235, paragraphs 25 and 26, and Case C-168/98  Luxembourg  v  Parliament and Council  [2000] ECR I-9131, paragraph 62).