8 May 2023 (*1)

(Appeal – EU trade mark – Determination as to whether appeals should be allowed to proceed – Article 170b of the Rules of Procedure of the Court of Justice – Request demonstrating that an issue is significant with respect to the unity, consistency or development of EU law – Appeal allowed to proceed in part)

In Case C‑776/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 December 2022,

Studio Legale Ughi e Nunziante, established in Rome (Italy), represented by L. Cascone, A. Clemente, F. De Filippis and A. Marega, avvocati,

appellant,

the other party to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

THE COURT (Chamber determining whether appeals may proceed),

composed of L. Bay Larsen, Vice-President of the Court, M. Safjan and N. Jääskinen (Rapporteur), Judges,

Registrar: A. Calot Escobar,

having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, J. Richard de la Tour,

makes the following

Arguments of the appellant

Findings of the Court

In the present case, it should be noted, first, that the request that the appeal be allowed to proceed sets out precisely and clearly the three grounds relied on in the appeal, alleging, first, infringement of Articles 119 and 126 of the Rules of Procedure of the General Court, second, misapplication of the case-law of the Court of Justice relating to the application of the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union as well as Article 51 of the Rules of Procedure of the General Court, and, third, infringement of Articles 47 and 52 of the Charter and, possibly, of Article 51(4) and Article 55(1) of the Rules of Procedure of the General Court.

Further, as regards the first ground of appeal, it should be noted that the request that the appeal be allowed to proceed sets out to the requisite legal standard the alleged error resulting from the infringement of Articles 119 and 126 of the Rules of Procedure of the General Court. It is apparent from that request that the alleged error lies in the fact that the order under appeal does not, first, contain an adequate statement of reasons, since the General Court merely refers to one of its earlier decisions in which it had also failed to state reasons for the applicability of the requirement of independence of the lawyer where the appellant was a law firm and one of its members represented it before the General Court, without, however, setting out a full line of reasoning on that point. Second, despite citing it in the order under appeal, the General Court failed to take into account and apply the most recent case-law of the Court of Justice on the matter.

On the other hand, although the appellant identifies the issue raised by its first ground of appeal – which consists, in essence, in determining whether there is a failure to state reasons where the General Court merely refers by analogy to previous decisions on the point concerned – but without setting out full reasoning on that point, it has failed, in any event, to demonstrate to the requisite legal standard how the alleged failure to state reasons in the order under appeal raises an issue that is significant with respect to the unity, consistency or development of EU law. The appellant, who merely puts forward arguments of a general nature, has failed to produce any evidence to show that this ground of appeal raises an issue the importance of which exceeds the scope of the order under appeal and, ultimately, that of its appeal.

Third, in so far as concerns the issue raised by the second ground of appeal, it should be noted that the request that the appeal be allowed to proceed sets out to the requisite legal standard the alleged error resulting from the failure to have regard to the case-law, the extent to which that alleged error had an effect on the outcome of the order under appeal, and the concrete reasons why such an error, even if established, raises an issue that is significant with respect to the unity, consistency or development of EU law.

It is apparent from that request that the alleged error lies in the fact that the case-law resulting from the judgment of 14 July 2022, Universität Bremen v REA (C‑110/21 P, EU:C:2022:555, paragraph 67), according to which the requirement of the independence of a lawyer laid down in EU law must be interpreted in such a way as to limit cases of inadmissibility solely to cases where it is obvious that the representative concerned is not in a position to carry out his or her task of defending his or her client by acting in the best interests of his or her client, with the result that that representative should be removed in the interests of the client, was disregarded by the order under appeal. According to that request, if such an error had been established, the action before the General Court would have been admissible.

Furthermore, the appellant identifies the question raised by its second ground of appeal, which consists, in essence, in determining whether the case-law resulting from the judgment of 14 July 2022, Universität Bremen v REA (C‑110/21 P, EU:C:2022:555, paragraph 67), relating to the application of the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union, means that partners in a law firm who are instructed by that firm satisfy the requirement of independence as defined by the Court of Justice. By pointing out that, under Italian law, there is no employment relationship between a professional partnership of lawyers and one of its members and that the member instructed to represent that partnership in court cannot have a conflict of interest with it, the appellant suggests that the question of law raised by its second ground of appeal goes beyond the scope of its appeal, since the answer to that question will have repercussions which go far beyond the present case. In doing so, the appellant sets out the specific reasons why such an issue is significant with respect to the unity, consistency or development of EU law.

Fourth, as regards the issue raised by the third ground of appeal, it should be noted that the request that the appeal be allowed to proceed sets out to the requisite legal standard the alleged error resulting from the failure to have regard to the case-law, the extent to which that alleged error had an effect on the outcome of the order under appeal and the concrete reasons why such an error, even if established, raises an issue that is significant with respect to the unity, consistency or development of EU law.

It is apparent from that request that the alleged error of law consists, in essence, in the fact that the General Court, after establishing the absence of independence of the three lawyers who represented the appellant before it, found that no possibility of rectification was expressly provided for in the Rules of Procedure of the General Court. Otherwise, the appellant would have had the opportunity to prevent its action from being declared inadmissible.

In addition, first, the appellant identifies the question raised by its third ground of appeal, which consists, in essence, in determining whether, where a party is not, according to the General Court, duly represented by a lawyer, within the meaning of Article 19 of the Statute of the Court of Justice of the European Union, Articles 47 and 52 of the Charter imply that the General Court must, before adopting a decision dismissing the action, notify that party to that effect in order to allow it to be duly represented. Second, it is apparent from the request that the appeal be allowed to proceed that the significance of any obligation for the General Court to allow an appellant to rectify his or her action before finding that the action is inadmissible, without infringing the rights enshrined in the Charter, goes beyond the scope of the order under appeal alone. In that connection, it should be noted that such a question is not linked to a specific area of EU law, but concerns any type of dispute brought before the General Court in respect of which representation by a lawyer is required, within the meaning of the third paragraph of Article 19 of the Statute of the Court of Justice of the European Union.

Taking into account the elements set out by the appellant, the present request that the appeal be allowed to proceed demonstrates to the requisite legal standard that the second and third grounds of appeal raise issues that are significant with respect to the unity, consistency or development of EU law.

In the light of the foregoing considerations, the appeal should be allowed to proceed in its second and third grounds of appeal, to which the response will have to relate, and should not be allowed to proceed as to the remainder.

Costs

Under Article 170b(4) of the Rules of Procedure of the Court of Justice, where an appeal is allowed to proceed, wholly or in part, having regard to the criteria set out in the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union, the proceedings are to continue in accordance with Articles 171 to 190a of those rules.

Under Article 137 of the Rules of Procedure, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the judgment or order which closes the proceedings.

Accordingly, since the request that the appeal be allowed to proceed must be allowed in part, the costs must be reserved.

On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:

The appeal is allowed to proceed in part.

The response shall relate to the second and third grounds of appeal.

The costs are reserved.

[Signatures]

*1 Language of the case: Italian.