ORDER OF THE GENERAL COURT (Fifth Chamber)

26 January 2017 (*)

(EU trade mark — Representation of the applicant by a lawyer who is not a third party — Inadmissibility)

In Case T‑353/16,

European Social Enterprise Law Association, established in London (United Kingdom), represented by Mr L. Fletcher, lawyer,

applicant,

v

European Union Office for Intellectual Property (EUIPO), represented by Mr L. Rampini, acting as Agent,

defendant,

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 26 April 2016 (Case R 2208/2015-4), concerning an application for registration of the word sign EUROPEAN SOCIAL ENTERPRISE LAW ASSOCIATION as an EU trade mark,

THE GENERAL COURT (Fifth Chamber),

composed of D. Gratsias, President, A. Dittrich (Rapporteur) and P.G. Xuereb, Judges,

Registrar: M.E. Coulon,

having regard to the application lodged at the Court Registry on 28 June 2016,

having regard to the response lodged at the Court Registry on 20 September 2016,

having regard to the written question put by the Court to the parties and EUIPO’s response to that question lodged at the Court Registry on 16 November 2016,

makes the following

Order

 Facts and proceedings

1        The present action, brought on behalf of the applicant, European Social Enterprise Law Association, by Mr L. Fletcher in his capacity as solicitor, is directed against the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) dated 26 April 2016 (Case R 2208/2015-4), concerning an application for registration of the word sign EUROPEAN SOCIAL ENTERPRISE LAW ASSOCIATION as an EU trade mark (‘the contested decision’).

2        As is apparent from the applicant’s website, Mr Fletcher is the chair of the applicant’s board.

3        Furthermore, the applicant’s registered office is at the law firm in which Mr Fletcher works.

4        By letter from the Court Registry of 31 October 2016, the parties were requested to submit their views on the formal validity of the application and, consequently, on the admissibility of the action, so far as concerns the capacity of the applicant’s lawyer to represent it before the Courts of the European Union, having regard to the fact that it is apparent from the applicant’s website (http://esela.eu/about-esela/) that the solicitor who signed the application is the chair of the applicant’s board and that the applicant’s registered office is at the law firm in which he works.

5        EUIPO lodged its observations within the time limit set. The applicant submitted no observations.

 Forms of order sought

6        In the application, the applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs.

7        In the defence, EUIPO contends that the Court should:

–        dismiss the application;

–        order the applicant to pay the costs.

8        In its observations on the written question put by the Court, EUIPO stated that the action should be dismissed as inadmissible.

 Law

9        Under Article 129 of the Rules of Procedure of the General Court, the Court may, at any time of its own motion, after hearing the main parties, decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case.

10      In the present case, the Court considers that it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings.

11      According to the first, third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, which applies to the General Court by virtue of Article 53 of that Statute:

‘The Member States and the institutions of the Union shall be represented before the Court of Justice by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer.

Other parties must be represented by a lawyer.

Only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Court.’

12      The first paragraph of Article 21 of the Statute of the Court of Justice furthermore provides as follows:

‘A case shall be brought before the Court of Justice by a written application addressed to the Registrar. The application shall contain the applicant’s name and permanent address and the description of the signatory …’

13      Under Article 73(1) of the Rules of Procedure, the original paper version of a procedural document must bear the handwritten signature of the party’s agent or lawyer.

14      It is apparent from the abovementioned provisions, and in particular from the use of the term ‘represented’ in the third paragraph of Article 19 of the Statute of the Court of Justice, that, in order to bring an action before the General Court, a ‘party’ within the meaning of that article is not authorised 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 Agreement on the European Economic Area (see, to that effect, order of 21 March 2011, Milux v OHIM (REFLUXCONTROL and Others), T‑139/10, T‑280/10 to T‑285/10 and T‑349/10 to T‑352/10, not published, EU:T:2011:98, paragraph 20 and the case-law cited).

15      That requirement to have recourse to a third party is based on a conception of the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of justice, such legal assistance as his client needs. Such a conception reflects legal traditions common to the Member States and is also to be found in the European Union legal order, as is demonstrated by, precisely, Article 19 of the Statute of the Court of Justice (see order of 21 March 2011, REFLUXCONTROL and Others, T‑139/10, T‑280/10 to T‑285/10 and T‑349/10 to T‑352/10, not published, EU:T:2011:98, paragraph 21 and the case-law cited).

16      The purpose of the requirement for representation by a third party is to ensure that legal persons are defended by a representative who is sufficiently distant from the legal person which he represents (see order of 4 December 2014, ADR Center v Commission, C‑259/14 P, not published, EU:C:2014:2417, paragraph 25 and the case-law cited).

17      Mr Fletcher, the solicitor representing the applicant, cannot be considered, for the purposes of the present cases, to be a ‘third party’ who is independent of the applicant. He is the chair of the applicant’s board, that is to say its governing body (see, to that effect, order of 21 March 2011, REFLUXCONTROL and Others, T‑139/10, T‑280/10 to T‑285/10 and T‑349/10 to T‑352/10, not published, EU:T:2011:98, paragraph 22).

18      It follows from the order of 29 September 2010, EREF v Commission (C‑74/10 P and C‑75/10 P, not published, EU:C:2010:557, paragraphs 50 and 51), that a person who occupies a position at a high executive level within an association cannot act as its legal representative before the Courts of the European Union as an independent third party (order of 21 March 2011, REFLUXCONTROL and Others, T‑139/10, T‑280/10 to T‑285/10 and T‑349/10 to T‑352/10, not published, EU:T:2011:98, paragraph 26). The Court has also held that the requirement that a lawyer should be independent also applies to a situation in which the lawyer is the chair of the board of the party which he is representing, regardless of whether he is employed by that party (see, to that effect, order of 4 December 2014, ADR Center v Commission, C‑259/14 P, not published, EU:C:2014:2417, paragraph 27).

19      The nature of the position held by Mr Fletcher in the applicant is therefore not compatible with representation of that party before the Courts of the European Union (see, to that effect, order of 4 December 2014, ADR Center v Commission, C‑259/14 P, not published, EU:C:2014:2417, paragraph 28).

20      It follows from all the foregoing that, since the application initiating proceedings was signed by Mr Fletcher, the present action was not brought in accordance with the third and fourth paragraphs of Article 19 and the first paragraph of Article 21 of the Statute of the Court of Justice and the first paragraph of Article 73(1) of the Rules of Procedure of the General Court.

21      Accordingly, the present action must be dismissed as inadmissible.

 Costs

22      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 applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby orders:

1.      The action is dismissed as inadmissible.

2.      The European Social Enterprise Law Association shall pay the costs.

Luxembourg, 26 January 2017.

E. Coulon

      D. Gratsias

Registrar

      President