Order of the Court of First Instance (Third Chamber) of 8 June 1998. – David T. Keeling v Office for Harmonisation in the Internal Market (Trade Marks and Designs).

BIB.ORDER

T-148/9761997B01480009.000122191223012T

ORDER OF 8. 6. 1998 — CASE T-148/97

KEELING v OHIM

Order of the Court of First Instance (Third Chamber)

8 June 1998^(*)

In Case T-148/97,

David T. Keeling, member of a Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs), residing in Alicante (Spain), represented by Arthur Alan Dashwood, Barrister, of the Bar of England and Wales, instructed by Edward Lewis, Solicitors, with an address for service in Luxembourg at the Chambers of Arsène Kronshagen, 22 Rue Marie-Adélaïde,

applicant,

Office for Harmonisation in the Internal Market (Trade Marks and Designs), represented by Oreste Montako, Director of its Legal Department, and João Paulo Miranda de Sousa, of its Legal Department, acting as Agents, with an address for service at the office of Carlos Gómez de la Cruz, of the Legal Service of the Commission of the European Communities, Wagner Centre, Kirchberg,

defendant,

APPLICATION for annulment of Decision No ADM-97-3 of the President of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 February 1997 concerning the organisation of the Boards of Appeal,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of: V. Tiili, President, C. P. Briët and A. Potocki, Judges,

Registrar: H.Jung,

makes the following

Order

Legal background and facts of the dispute

1The Office for Harmonisation in the Internal Market (Trade Marks and Designs) (hereinafter ‘the Office’) was established by Article 2 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1, hereinafter ‘Regulation No 40/94’).

2Article 119(2)(a) of Regulation No 40/94 provides that the President of the Office, by whom the Office is to be managed, shall ‘take all necessary steps, including the adoption of internal administrative instructions and the publication of notices, to ensure the functioning of the Office’.

3On the basis of that provision, the President of the Office adopted, on 21 February 1997, Decision No ADM-97-3 concerning the organisation of the Boards of Appeal, revised on 27 February 1997 (hereinafter ‘the contested decision’). Article 2 thereof, entitled ‘Integration of the chairmen and the members of the Boards of Appeal’, provides:

‘1.The Vice-President for Legal Affairs shall be the immediate superior of the chairmen of the Boards of Appeal.
2.The chairmen of the Boards of Appeal shall be the immediate superiors of the members of the Boards of Appeal to which they are designated. Where a member is designated to more than one Board of Appeal, the immediate superior shall be the chairman of the Board of the principal assignment.’

4Articles 1, 3 and 4 of the contested decision concern respectively the designation, among the chairmen of the Boards of Appeal, of a chairman for administrative matters, the organisation of a registry common to the Boards of Appeal, and the staffing of the Boards of Appeal.

5Article 131(1) of Regulation No 40/94 provides that the members, including the chairmen, of the Boards of Appeal are to be appointed for a term of five years, in accordance with the procedure laid down in Article 120 of that regulation for the appointment of the President of the Office. Under Article 120, the appointment is to be made by the Council from a list of at most three candidates, drawn up by the Administrative Board of the Office. Article 131(1) further provides that the members of the Boards of Appeal may not be removed from office during the five-year term unless there are serious grounds for such removal and the Court of Justice, on application by the Council, takes a decision to that effect.

6Article 131(2) of Regulation No 40/94 states that the members of the Boards of Appeal ‘shall be independent’ and ‘shall not be bound by any instructions’ in their decisions.

7The applicant is a member of the first Board of Appeal.

Procedure and forms of order sought by the parties

8Those were the circumstances in which, by application lodged at the Registry of the Court of First Instance on 5 May 1997, the applicant brought the present action ‘pursuant to the fourth paragraph of Article 173 of the EC Treaty’ (hereinafter ‘the Treaty’).

9Pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance, the defendant, by separate document lodged at the Registry on 24 June 1997, raised a plea of inadmissibility. The applicant submitted his observations on the plea of inadmissibility by a document lodged on 1 September 1997.

10In his application, the applicant claims that the Court should:

—
declare the action admissible;
—
annul the contested decision, in particular Article 2 thereof;
—
order the Office to pay the costs.

11The Office contends that the Court should:

—
end the written procedure;
—
decide that it is not necessary to open the oral procedure;
—
declare the action inadmissible;
—
order the applicant to pay the costs.

12In his observations on the plea of inadmissibility, the applicant claims that the Court should:

—
dismiss the plea of inadmissibility;
—
declare the action admissible;
—
order the Orfice to pay the costs occasioned by the plea of inadmissibility;
—
in the alternative, reserve its decision on admissibility for the final judgment;
—
order the resumption of the written procedure.

Admissibility

13Under Article 114 of the Rules of Procedure, the Court may, on application by a party, give a decision on admissibility without considering the substance of the case. Under paragraph 3 of that article, the remainder of the proceedings is to be oral unless the Court decides otherwise.

14In the present case the Court considers that the documents in the case provide it with sufficient information and decides that there is no need to open the oral procedure.

15The Court notes, as a preliminary observation, that the applicant and another member of the first Board of Appeal, Mr Chaves Fonseca Ferrão, have each also brought an action under Article 179 of the Treaty against the decisions of the President of the Office rejecting their respective complaints against the contested decision. Those actions have been registered as Case T-297/97 and Case T-159/97 respectively.

16Again by way of a preliminary observation, it may also be noted that, in addition, Mr Chaves Fonseca Ferrão requested the Commission of the European Communities to review the legality of the contested decision in accordance with Article 118 of Regulation No 40/94 — which provides inter alia, in paragraph 1, that the Commission is to check the legality of those acts of the President of the Office in respect of which Community law does not provide for any check on legality by another body — and that the Commission rejected that request as inadmissible on the ground that the contested decision could, in its opinion, be challenged by the person concerned before the Community judicature under Article 179 of the Treaty.

Arguments of the parties

17The defendant raises two pleas of inadmissibility. By the first it submits that the appropriate basis for challenging the legality of the contested decision is Article 179 of the Treaty. By the second it contends that no action against the Office may be brought on the basis of Article 173 of the Treaty. In the circumstances of the case, the second plea of inadmissibility should be examined first.

18The defendant submits that the contested decision cannot be the subject of an action under Article 173 of the Treaty, since it does not emanate from one of the institutions mentioned in that article and since in the present case a broad interpretation of the article is not permissible.

19It submits that Article 173 of the Treaty does not expressly allow an action to be brought against acts of decentralised Community bodies which have their own legal personality, such as the Office. A broad interpretation of Article 173 would be permissible only if it were impossible for the applicant to have recourse to other remedies. In the present case, according to the defendant, there is a remedy, namely that provided for in Article 118 of Regulation No 40/94. Should it be the case that the President's decision cannot be brought before the Community judicature under Article 179 of the Treaty, an application under Article 118 of that regulation would then be necessary. Article 173 of the Treaty cannot, therefore, be given a broader interpretation.

20According to the defendant, if the applicant's interpretation were to be accepted, Article 118 of Regulation No 40/94 would be rendered devoid of content, since a direct remedy before the Community judicature would always be available, under Article 179 of the Treaty for disputes concerning staff matters or under Article 173 of the Treaty in other cases. The defendant submits that Article 118 of Regulation No 40/94 shows that the legislature's intention was to avoid ‘minor’ actions before the Community judicature. Any decision taken by the Commission under Article 118 of Regulation No 40/94 may, as a next step, if it is considered appropriate, be made the subject of an action under Article 173 of the Treaty. In the defendant's submission, the possibility for third parties concerned to secure judicial review of acts of the President of the Office is thus sufficiently assured.

21Finally, since the applicant brought his action without first making a formal application to the Commission for a check on legality under Article 118 of Regulation No 40/94, the action is in any event inadmissible.

22The applicant, citing the judgment in Case 294/83 Les Verts v Parliament [1986] ECR 1339, submits that in a Community based on the rule of law the jurisdiction conferred on the Court by Article 173 of the Treaty extends to all measures adopted within the institutional system of the Communities which are intended to produce legal effects. In the applicant's submission, the contested decision is such a measure, and is of direct and individual concern to him.

23The applicant also submits that acts of the President of the Office can have far-reaching effects and that the contested decision affects the credibility and efficacy of the system for reviewing the legality of virtually all the decisions of the Office which have an impact on the legal situation of individuals.

24The applicant further argues that the defendant exaggerates the scope of Article 118 of Regulation No 40/94. At the time when the draft regulation on the Community trade mark was submitted, the judgment in Les Verts v Parliament had not yet been delivered. Article 118 was meant to provide a device by which the decisions of the President of the Office could be challenged before the Community judicature, since decisions of the Commission under that article would be amenable to judicial review. According to the applicant, it was out of an excess of caution that Article 118 was allowed to survive. The applicant submits, moreover, that the strict conditions laid down in Article 118 and the absence of proper procedural rules which might be applied by the Commission significantly curtail the legal protection which individuals enjoy under the Treaty. It follows, according to the applicant, that Article 118 is unsuitable as a means of challenging acts of the President which are of direct and individual concern to natural or legal persons.

25The applicant concludes that the defendant's plea of inadmissibility must be rejected.

Findings of the Court

26It follows from Regulation No 40/94 that three remedies are potentially available against decisions taken by the organs of the Office. Which remedy is appropriate depends on the nature of the contested measure.

27First, Title VII of Regulation No 40/94, headed ‘Appeals’, makes provision for appeals against substantive decisions concerning Community trade marks taken by the examiners, Opposition Divisions, the Administration of Trade Marks and Legal Division, and Cancellation Divisions. If the body whose decision is contested does not rectify its decision within the prescribed time-limit, the appeal must be remitted to one of the Office's three Boards of Appeal. Decisions of the Boards of Appeal may in turn, under Article 63 of that regulation, be the subject of an action before the Court of Justice of the European Communities.

28Second, as stated above, Article 118 of Regulation No 40/94, entitled ‘Control of legality’, provides in particular that the Commission is to ‘check the legality of those acts of the President of the Office in respect of which Community law does not provide for any check on legality by another body’. The Commission's decisions may be the subject of an action under Article 173 of the Treaty.

29Third, Article 112 of Regulation No 40/94, entitled ‘Staff’, provides, in paragraph 1, that ‘[t]he Staff Regulations of officials of the European Communities, the Conditions of Employment of other servants of the European Communities, and the rules adopted by agreement between the Institutions of the European Communities for giving effect to those Staff Regulations and Conditions of Employment shall apply to the staff of the Office, without prejudice to the application of Article 131 to the members of the Boards of Appeal’. Paragraph 2 provides that, without prejudice to Article 120 concerning the appointment of senior officials of the Office and the exercise by the Council of disciplinary authority over those officials (see paragraph 5 above), the powers conferred on each institution by the Staff Regulations and by the Conditions of Employment of other servants are to be exercised by the Office in respect of its staff. Consequently, since the staff of the Office are thus subject to the Staff Regulations and the Conditions of Employment, the remedies provided for in Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations are available to them.

30In the present case, the Court must determine whether the applicant's action, which is based on Article 173 of the Treaty and which directly challenges the contested decision, is, as he claims, admissible.

31According to the first paragraph of Article 173 of the Treaty, the Community judicature may review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-à-vis third parties. It follows that acts emanating from Community bodies other than those listed in that provision cannot be challenged on the basis of it.

32The Office is not one of the institutions of the Community listed in Article 4 of the Treaty, nor is it mentioned in the first paragraph of Article 173 of the Treaty.

33The Court observes, moreover, that one or other of the remedies mentioned in paragraphs 28 and 29 above is potentially available against a decision such as that at issue in this case. The contested decision is therefore not immune from all judicial review.

34In those circumstances, the Court finds that the present action, brought directly against a decision of the President of the Office and based on Article 173 of the Treaty, must be dismissed as manifestly inadmissible and that there is no need to examine the defendant's other plea of inadmissibility.

Costs

35Under Article 87(2) 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, he must be ordered to pay the costs, as applied for by the defendant.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby orders:

1.The application is dismissed as inadmissible.
2.The applicant shall bear the costs.