29 November 2024 (*)

( Action for annulment – Representation by a lawyer who is not an independent third party with regard to the applicant – Inadmissibility )

In Case T‑230/24,

established in Wrocław (Poland), represented by M. Mielniczuk-Skibicka and E. Gryc-Zerych, lawyers,

applicant,

European Union Intellectual Property Office (EUIPO),

represented by J. Ivanauskas, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

4Kraft sp. z o.o.,

established in Poznań (Poland), represented by J. Skołuda, lawyer,

THE GENERAL COURT (Third Chamber),

composed of P. Škvařilová-Pelzl (Rapporteur), President, I. Nõmm and R. Meyer, Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure, in particular:

– the plea of inadmissibility raised by the intervener by a separate document lodged at the Registry of the General Court on 12 July 2024,

– the applicant’s observations regarding the plea of inadmissibility, lodged at the Court Registry on 26 August 2024,

makes the following

By its action under Article 263 TFEU, the applicant, TelForceOne S.A., seeks the annulment of the decision of the Third Board of Appeal of EUIPO of 7 March 2024 (Case R 677/2023-3).

As a preliminary point, it should be noted that, under Article 173(3) of the Rules of Procedure of the General Court, a party to the proceedings before the Board of Appeal, other than the applicant, who has become an intervener before the Court in accordance with paragraphs 1 and 2 of that article is to have the same procedural rights as the main parties. That intervener may support the form of order sought by a main party and may apply for a form of order and put forward pleas in law independently of those applied for and put forward by the main parties. It follows that the intervener may also dispute the admissibility of the action by a separate document under Article 130(1) of the Rules of Procedure, which is applicable to proceedings relating to intellectual property rights under Article 191 of those rules (judgment of 6 October 2021, Allergan Holdings France v EUIPO – Dermavita Company (JUVEDERM), T‑397/20, not published, EU:T:2021:653, paragraph 17).

Under Article 130(1) of the Rules of Procedure, an intervener may apply to the Court for a decision on inadmissibility without going to the substance of the case. Under Article 130(6) of those rules, the Court may decide to open the oral part of the procedure in respect of the plea of inadmissibility.

In the present case, the Court considers that it has sufficient information from the documents before it and has decided to give its decision without opening the oral part of the procedure.

Under the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court in accordance with the first paragraph of Article 53 thereof, parties other than the Member States, the institutions of the European Union, the States which are parties to the Agreement on the European Economic Area (EEA) and the European Free Trade Association (EFTA) Surveillance Authority must be represented by a lawyer authorised to practise before a court of a Member State or of another State which is a party to the EEA Agreement. Article 51(1) of the Rules of Procedure states that, in proceedings before the General Court, a party must be represented by an agent or a lawyer in accordance with the provisions of Article 19 of the Statute.

It is apparent from the wording of the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union that, for the purpose of bringing an action before the General Court, a party, within the meaning of that provision, is required to use the services of a third party (see, to that effect, judgments of 4 February 2020, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 58 and the case-law cited, and of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 61).

That requirement is intended, on the one hand, to prevent private parties from acting on their own behalf before the Courts without using an intermediary and, on the other, to ensure that legal persons are defended by a representative who is sufficiently distant from the legal person he or she represents (see, to that effect, judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 63 and the case-law cited).

In that regard, the Court of Justice has recalled that the objective of representation by a lawyer, as referred to in the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union, which is to be carried out in the interests of the sound administration of justice, is above all to protect and defend to the greatest possible extent the principal’s interests, acting in full independence and in line with the law and professional rules and codes of conduct (see, to that effect, judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 64 and the case-law cited).

Thus, the requirement that a lawyer be independent is determined not only negatively, that is to say, by the absence of an employment relationship between the lawyer and his or her client, but also positively, that is by reference to the lawyer’s professional ethical obligations (see judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 66 and the case-law cited).

As regards the positive definition of that requirement of independence, the Court of Justice has expressly stated that that independence must be understood not as the lack of any connection whatsoever between the lawyer and his or her client, but only the lack of connections which have a manifestly detrimental effect on the lawyer’s capacity to carry out the task of defending his or her client while acting in that client’s interests to the greatest possible extent, in line with the law and professional rules and codes of conduct (see judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 69 and the case-law cited).

In the present case, the application initiating proceedings was signed by Ms Mielniczuk-Skibicka. It is apparent from the document granting her power of attorney that she is ‘employed by the [applicant]’. This is borne out by the fact that the application lodged by Ms Mielniczuk-Skibicka was printed on the applicant’s headed stationery and the fact that Ms Mielniczuk-Skibicka’s address, which appears in that application, is identical to the applicant’s address. This is also confirmed by Annex A.5 to the plea of inadmissibility, which is a screenshot of Ms Mielniczuk-Skibicka’s LinkedIn profile, from which it is apparent that she has been employed by the applicant as an intellectual property lawyer (‘IP lawyer’) since 2022. Moreover, it should be noted that, in its observations regarding the plea of inadmissibility, the applicant does not dispute that Ms Mielniczuk-Skibicka is employed by it as an intellectual property lawyer, but maintains that such an employment relationship is irrelevant for the purpose of assessing the independence of its representative.

It is thus apparent that Ms Mielniczuk-Skibicka, who lodged the application, is in an employment relationship with the applicant and that there is a relationship of subordination between her and the applicant. In view of that relationship of subordination, it must be held that the applicant could therefore exercise effective control over its representative. Thus, there is a risk that, as a result of those duties, Ms Mielniczuk-Skibicka’s professional opinion would be at least partly influenced by her professional environment.

It follows that the connections between Ms Mielniczuk-Skibicka and the applicant are such as to have a manifestly detrimental effect on her capacity to carry out the task of defending the applicant while acting in its interests to the greatest possible extent. Consequently, the present action has not been 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 Article 51(1) of the Rules of Procedure, and must be declared inadmissible.

That conclusion is not invalidated by the applicant’s references to the Polish legislation governing the rules on the provision of legal assistance by Polish lawyers.

In that regard, as has been recalled in paragraph 9 above, the concept of the ‘independence’ of a lawyer is determined not only positively, that is by reference to his or her professional ethical obligations, but also negatively, that is to say, by the absence of an employment relationship (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).

Thus, the applicant’s reference to the requirements of independence arising from the professional rules governing the profession of legal adviser is not, in itself, capable of demonstrating that it has complied with the requirement that its lawyer before the Court be independent. Professional ethical obligations are not, in themselves, capable of demonstrating compliance with the requirement of independence.

In addition, according to the case-law, 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 and Poland v Commission, C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraph 35, and order of 18 November 2014, Justice & Environment v Commission, T‑221/14, not published, EU:T:2014:1002, paragraph 15).

Similarly, the fact that the applicant, for the purpose of rectifying its action, granted power of attorney to a second lawyer is not capable of calling into question the conclusion set out in paragraph 13 above.

According to the case-law, failure to comply with the requirements referred to in the third and fourth paragraphs of Article 19 of the Statute of the Court of Justice of the European Union and in Article 51(1) of the Rules of Procedure is not one of the defects capable of being rectified under the second paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 78(6) of the Rules of Procedure (see orders of 26 April 2018, Valencia Club de Fútbol v Commission, T‑732/16, not published, EU:T:2018:238, paragraph 19 and the case-law cited, and of 25 July 2023, Malmendier v Council, T‑832/22, not published, EU:T:2023:448, paragraph 9 and the case-law cited).

Furthermore, contrary to the applicant’s assertions, in a case such as that referred to in paragraphs 11 and 12 above, no provision of the Rules of Procedure or of the Statute of the Court of Justice of the European Union currently obliges the General Court or the Court of Justice to notify the person bringing an action or to give him or her the opportunity to appoint a new representative in the course of the proceedings (judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 90).

Lastly, in so far as the applicant argues that the inadmissibility of the action would infringe Articles 47 and 52 of the Charter of Fundamental Rights of the European Union, the Court of Justice has previously explained that effective judicial protection of a natural or legal person, such as the applicant, which has been unsuccessful in its application for a declaration of invalidity before the Board of Appeal, is ensured by the right of that person to bring an action before the Courts of the European Union against the decision of the Board of Appeal (see, to that effect, judgment of 24 March 2022, PJ and PC v EUIPO, C‑529/18 P and C‑531/18 P, EU:C:2022:218, paragraph 87).

In addition, it is also apparent from the case-law of the Court of Justice that the right of access to a court is not an absolute right and that, consequently, it may involve proportionate restrictions that pursue a legitimate aim and do not adversely affect the very essence of that right (see judgment of 30 June 2016, Toma and Biroul Executorului Judecătoresc Horațiu-Vasile Cruduleci, C‑205/15, EU:C:2016:499, paragraph 44 and the case-law cited, and order of 6 April 2017, PITEE v Commission, C‑464/16 P, not published, EU:C:2017:291, paragraph 31 and the case-law cited).

In the light of all of the foregoing, the plea of inadmissibility raised by the intervener must be upheld and the action must be dismissed as inadmissible.

Costs

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 the intervener.

By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, the former must, as no hearing was held, be ordered to bear its own costs.

On those grounds,

hereby orders:

1.The action is dismissed as inadmissible.

3.The European Union Intellectual Property Office (EUIPO) shall bear its own costs.

Luxembourg, 29 November 2024.

Registrar

President

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Language of the case: English.