T-148/97

v

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 Com­ mission of the European Communities, Wagner Centre, Kirchberg,

defendant,

* Language of the case: English.

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ORDER OF 8. 6. 1998 — CASE T-148/97

Legal background and facts of the dispute

1 The 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').

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KEELING v OHIM

2 Article 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'.

3 On 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:

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 mem­ bers 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.

6 Article 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.

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

Procedure and forms of order sought by the parties

8 Those 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' (herein­ after 'the Treaty').

9 Pursuant 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.

11 The 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.

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

— order the resumption of the written procedure.

Admissibility

13 Under 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.

14 In 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 pro­ cedure.

15 The 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.

16 Again by way of a preliminary observation, it may also be noted that, in addition, Mr Chaves Fonseca Ferrão requested the Commission of the European Communi­ ties to review the legality of the contested decision in accordance with Article 118

19 It 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.

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ORDER OF 8. 6. 1998 — CASE T-148/97

20 According 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.

24 The 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 Com­ munity 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 deci­ sions of the President of the Office could be challenged before the Community judicature, since decisions of the Commission under that article would be ame­ nable to judicial review. According to the applicant, it was out of an excess of cau­ tion 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 pro­ tection 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 Presi­ dent which are of direct and individual concern to natural or legal persons.

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

Findings of the Court

26 It 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.

27 First, 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 con­ tested 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

29 Third, 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 Con­ ditions of Employment of other servants of the European Communities, and the rules adopted by agreement between the Institutions of the European Communi­ ties 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 Employ­ ment, the remedies provided for in Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations are available to them.

30 In 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 con­ tested decision, is, as he claims, admissible.

31 According to the first paragraph of Article 173 of the Treaty, the Community judi­ cature 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

Costs

35 Under 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.

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ORDER OF 8. 6. 1998 — CASE T-148/97

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

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