C-361/01

KIK v O H I M

OPINION OF ADVOCATE GENERAL JACOBS delivered on 20 March 2003 1

1. This is an appeal against a judgment of 3. Regulation No 1 of the Council of the Court of First Instance 2dismissing an 15 April 1958 determining the languages action brought by Christina Kik against the to be used by the European Economic Office for Harmonisation in the Internal Community 4was based on what is now Market (Trade Marks and Designs) ('the Article 290 EC. The citation in its preamble Office') in which she essentially sought to reads: put in issue the rules governing the use of languages at the Office.

'Having regard to Article 217 of the Treaty which provides that the rules governing the languages of the institutions of the Com- munity shall, without prejudice to the provisions contained in the rules of pro- cedure of the Court of Justice, be deter- Relevant legislation mined by the Council, acting unanimously.'

2. Article 290 EC (formerly Article 217 of 4. Article 1 of Regulation No 1 currently the EC Treaty) provides: provides:

5. Article 2 of Regulation No 1 provides: relation to every trade mark the trade mark law created by this Regulation;... it is therefore essential, while retaining the Community's existing institutional struc- ture and balance of powers, to establish an Office for Harmonisation in the Internal 'Documents which a Member State or a Market (trade marks and designs) which is person subject to the jurisdiction of a independent in relation to technical matters Member State sends to institutions of the and has legal, administrative and financial Community may be drafted in any one of autonomy;... to this end it is necessary and the official languages selected by the appropriate that it should be a body of the sender. The reply shall be drafted in the Community having legal personality and same language.' exercising the implementing powers which are conferred on it by this Regulation, and that it should operate within the frame- work of Community law without detract- ing from the competencies exercised by the Community institutions.' 6. Article 5 provides that the Official Journal of the European Communities (now the Official Journal of the European Union) is to be published in the 11 official languages. 9. The use of languages in proceedings before the Office is governed by Article 115 of the Regulation. That article provides as follows:

7. The Office was established by Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark 5('the Regulation' or 'Regulation 40/94'). ' 1 . The application for a Community trade mark shall be filed in one of the official languages of the European Community.

5. The notice of opposition and an appli- cation for revocation or invalidity shall be filed in one of the languages of the Office.

10. Rule 1(1)(j) of Article 1 of Commission R e g u l a t i o n (EC) N o 2 8 6 8 / 9 5 of 6. If the language chosen, in accordance 13 December 1995 implementing Regu- with paragraph 5, for the notice of opposi- lation (EC) No 40/94 6 repeats the require- tion or the application for revocation or ment in Article 115(3) of Regulation invalidity is the language of the application No 40/94 that the application for regis- for a trade mark or the second language tration must indicate a 'second language'. indicated when the application was filed, that language shall be the language of the proceedings. 6 — OJ 199J L 303, p. 1.

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Background to the dispute of Appeal also held that the Office, which includes its Boards of Appeal, can but apply the Regulation, even if its view is that the Regulation is not compatible with primary Community law

12. By a decision of 20 March 1998 the Office dismissed the application on the ground that a formal condition, that is to say the requirement that the applicant indicate English, French, German, Italian or Spanish as a 'second language', was not The judgment of the Court of First Instance satisfied. The applicant appealed against that decision on the ground inter alia that it was unlawful because it was based on unlawful legislation. The Board of Appeal of the Office dismissed the appeal by 14. The Court of First Instance first con- decision of 19 March 1999 ('the contested sidered the Office's challenge to the decision') on the ground that, since the admissibility of the plea that Article 115(3) applicant had indicated as a 'second lan- of the Regulation - on which the contested guage' the same language as that used for decision was based - was unlawful. The filing the application for registration, the Office submitted that, even if the Court application was vitiated by a formal irregu- were to find the restriction on the choice of larity distinct from the other irregularity languages in Article 115 to be unlawful, committed by not indicating one of the five that could not lead to the contested languages of the Office as a 'second lan- decision being set aside since the Office guage'. In the contested decision the Board did not dismiss the applicant's request for

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KIK v OHLM

'32 It follows from the foregoing that, in so far as the plea of illegality raised by the applicant in support of her action for annulment or alteration of the con- tested decision relates to the obligation under Article 115(3) of Regulation 17. It stated first that, contrary to the No 40/94 and Rule 1(1)(j) of Article 1 submissions of the applicant, the examiner of Regulation No 2868/95, it is admiss- and the Board of Appeal did not have ible. To that extent, the subject-matter jurisdiction to decide not to apply the rule of the plea of illegality encompasses the laid down by Article 115(3) of the Regu- obligation laid down by those provi- lation and Rule 1(1)(j) of Article 1 of sions, as clarified - in regard to its Regulation No 2868/95.

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KIK v OHIM

62 Next, in so far as Article 115(3) of that is to be used for opposition, Regulation No 40/94 requires the revocation or invalidity proceedings in applicant to indicate a second language the event that the first language chosen for the purposes of the possible use of by the applicant is not that requested that language as the language of pro- by another party to the proceedings. ceedings for opposition, revocation or Secondly, by limiting that choice to the invalidity proceedings, the fact remains languages which are the most widely that that rule was adopted for the known in the European Community, legitimate purpose of reaching a solu- and thus avoiding the possibility of the tion on languages in cases where language of proceedings being particu- opposition, revocation or invalidity larly remote in relation to the linguistic proceedings ensue between parties knowledge of the other party to the who do not have the same language proceedings, the Council remained preference and cannot agree between within the limits of what is necessary themselves on the language of proceed- for achieving the aim in view (Cases ings. In that regard, it is to be noted 222/84 Johnston [1986] ECR 1651, that, under Article 115(7) of Regu- paragraph 38, and C-285/98 Kreil lation No 40/94, parties to opposition, [2000] ECR I-69, paragraph 23). revocation or invalidity proceedings are entitled to agree that any one of the official languages of the European Community is to be the language of the proceedings, an option which might particularly suit parties with the same language preference.

20. The Court of First Instance accordingly dismissed the action. 23. The appeal was lodged on 21 September 2001. On 25 January 2002 the appellant's counsel informed the Court of Justice that the appellant had died and that her estate wished to continue the appeal. In this Opinion, I use the terms 'applicant' and 'appellant' to refer to both the late Mrs Kik and her estate as appropriate. The appeal

21. In her appeal, the appellant asks the Court to annul the judgment of the Court 24. The Office sent a letter to the Court of First Instance, to annul the contested raising the question whether the appellant's decision and to order the Office to pay the estate had standing to continue the appeal, costs of both proceedings. There are two given in particular that the proceedings had grounds of appeal: first, that the Court of been brought by the appellant in her First Instance erred in law in its interpre- professional capacity as a trade mark agent. tation of Article 115 of Regulation No 40/94 since it failed to take into a c c o u n t t h e s e c o n d s e n t e n c e of Article 115(4) and second, that the Court of First Instance erred in law in dismissing her plea that the language regime set up by Article 115 of the Regulation was unlaw- ful. 25. At the hearing, at which the appellant, the Office, Spain, the Council and the Commission were represented, counsel for the appellant contended that the estate did have standing. The Office did not pursue the point and I accordingly do not propose 22. Greece supports the appellant, in par- to deal with it. ticular with regard to her argument that there is a principle that all the official languages of the Community are equal. The 8 — The Commission intervened in the appeal only.

The first ground of appeal cant accepts the use of that language as a language of proceedings only with regard to opposition, revocation or invalidity pro- ceedings. While that principle indeed underlies Article 115(3), the Court of First 26. The appellant's first ground of appeal is Instance fails to take account of the fact that the Court of First Instance incorrectly that the second sentence of Article 115(4) interpreted Article 115 of the Regulation by empowers the Office to derogate from that not taking account of the second sentence principle where the application is not made of Article 115(4). That sentence states that, in one of the working languages of the if the application was made in a language Office. The conclusion of the Court of First other than the languages of the Office, the Instance that for so long as the applicant is Office may send written communications the sole party to proceedings before the to the applicant in the second language Office the Regulation cannot in itself entail indicated by the applicant in his appli- differentiated treatment as regards lan- cation. The appellant submits that, as she guage is consequently incorrect. The effect stated in her application to the Court of of the Regulation is that all applications are First Instance and as the representative of dealt with in one of the working languages the Office expressly acknowledged at the of the Office. hearing before the Court of First Instance, the Office always 9uses its power to cor- respond with applicants in the second language if the application is not made in one of the languages of the Office. There- after the whole procedure, including the automatic examination of the absolute and relative grounds for refusal and any dif- 28. Moreover the Court of First Instance ferences which arise between the applicant ignores the implications of the second and the Office, takes place in the second sentence of Article 115(4) in paragraphs language. All the applicant receives in his 62 and 63 of the judgment. The fact that in first language is evidence of the entry in the the case of applications not made in one of register of Community trade marks, which the working languages of the Office the by virtue of Article 116(2) of the Regu- indication of a second language entails the lation is made in all the official languages use of that language in the processing of the of the European Community. application cannot contribute to resolving the question of languages in inter partes proceedings and cannot therefore be con- sidered to be an appropriate and propor- tionate choice.

points out that the Court of First Instance as in any sense implying differentiated dismissed as inadmissible the applicant's treatment as regards language, given that argument that the whole of Article 115 was it in fact guarantees use of the language of unlawful to the extent that it concerned the the application filed as the language of provisions of that article other than proceedings and thus the language in which Article 115(3), which underlay the con- procedural documents of a decisional char- tested decision, and considers that the acter must be drafted'. In the appellant's Court should not upset that ruling, par- view, those two statements are as a matter ticularly given that the appellant adduces of law incorrect by reason of the second no specific argument against it in the sentence of Article 115(4). In my view the appeal. The Council and Spain also submit appellant's first ground of appeal is admiss- that the first ground of appeal is inadmiss- ible. ible: as the Court of First Instance noted at paragraphs 32 and 33 of its judgment, Article 115(3) was at the root of the contested decision; the applicant could not therefore raise the illegality of the other provisions of Article 115. Since the appel- lant does not contest those paragraphs of the judgment, she cannot now question the 31. On the substance of the first ground of legality of those other provisions of appeal, the Office, supported by the Coun- Article 115. cil and the Commission, submits that in any event the Court of First Instance did not overlook the second sentence of Article 115(4): although that sentence was not explicitly mentioned in paragraphs 60 to 63 of the judgment, the legal analysis there set out applies to the whole of Article 115; moreover a careful reading of the judgment shows clearly that the Court 30. I do not accept those arguments. It of First Instance took into account the seems to me that the appellant is not raising scope and effect of Article 115 as a whole. the argument which she raised before the Court of First Instance and which that court dismissed as in part inadmissible. In the appeal she is rather focusing on the analysis of the Court of First Instance in paragraph 61 of its judgment, in which it is considering the substance and not the admissibility of the application. In that 32. The Office adds that applicants who paragraph, the Court of First Instance file their application in a language other c o n c l u d e s from t h e w o r d i n g of than one of its working languages remain Article 115(3) that 'so long as the applicant entitled to use the language of the appli- is the sole party to proceedings before the cation in their written and oral communi- Office, the language used for filing the cations with the Office for as long as they application for registration remains the are the sole party to the proceedings. The language of proceedings'. On that basis, it second sentence of Article 115(4) gives the concludes that 'in such proceedings, Regu- Office an option in the exercise of which it lation No 40/94 cannot be taken, in itself, must take account of all relevant circum-

33. The Office considers however that the option conferred by that provision is not restricted, as the Court of First Instance states, to documents other than procedural documents of a decisional character but rather encompasses all written communi- cations. 36. In my view, the fact that the appellant was apparently not directly prejudiced by the second sentence of Article 115(4), since the Office communicated with her in Dutch throughout, does not undermine her argu- ment, which is to the effect that the con- clusion of the Court of First Instance that 34. The Council submits that the Office in the Regulation did not differentiate a p p l y i n g the second sentence of between languages in proceedings to which Article 115(4) should respect the principle the applicant was the sole party was incor- underlying proceedings to which the appli- rect as a matter of law. It is worth repeating cant is the sole party, namely that the that the appellant is not in her first ground language of proceedings is the language of of appeal directly challenging the lawful- the application. Thus procedural docu- ness of the s e c o n d s e n t e n c e of ments of a decisional character must be in Article 115(4); 10 she is rather criticising the language of the application. The appel- the failure of the Court of First Instance to lant's interpretation of the second sentence of Article 115(4) would negate the above- 10 — She does however seek directly to challenge the lawfulness mentioned principle. The Council adds that of the second sentence of Article 115(4) in her submission the manner in which the Office applies that in the alternative in the context of her second ground of appeal; as I explain in paragraph 74 below I consider that provision cannot affect its validity. that plea is inadmissible.

39. The appellant's principal submission is that that regime is contrary to Article 12 EC because it favours certain official lan- guages and hence certain citizens of the Union. In particular she argues that (i) the 37. It is implicit in paragraph 61 of the language regime discriminates on the basis judgment, and in particular the conclusion of language contrary to the fundamental of that paragraph, that the Court of First principle of equality of languages enshrined Instance considered that the Office was in particular in Article 12 EC; (ii) such entitled to draft documents other than discrimination cannot be justified on procedural documents of a decisional char- grounds of practical convenience and (iii) acter in a language other than the language even if the regime could be so justified, it is of proceedings. That entitlement can flow not proportionate. In addition, Greece only from the second sentence of submits that insufficient reasons are given Article 115(4). The Court of First Instance in the Regulation for the choice of the must therefore have interpreted that provi- regime. sion as entitling the Office to use the second language indicated by the applicant when sending written communications other than procedural documents of a decisional char- acter. To that extent, the statement of the Court of First Instance that the Regulation Infringement of the fundamental principle 'cannot be taken, in itself, as in any sense of equality of languages implying differentiated treatment as regards language' is incorrect. As will become apparent, however, I do not con- sider that it follows from the fact that the Regulation so differentiates between lan- 40. According to the Court of First guages that it is in any sense unlawful. Instance, the appellant had claimed that

41. The Court of First Instance noted first that Regulation No 1 was merely an act of secondary law and that the Member States 43. However, I am not convinced by the did not lay down rules governing languages arguments adduced before this Court in in the Treaty, since Article 290 EC simply support of that proposition. conferred on the Council acting unani- mously the competence to determine the rules governing the languages of the insti- tutions. The rules governing languages laid down by Regulation No 1 could not there- fore be deemed to amount to a principle of Community law and the applicant could not rely on Article 12 EC in conjunction with Regulation No 1 as a basis for demonstrating that Article 115 was 44. First, the appellant and Greece simply illegal. 12 state that equality of languages is a funda- mental principle of Community law, the appellant adding that the principle is mani- fested above all in Article 314 EC. Equality of languages is not however a fundamental principle; as will be seen, the appellant adduces no argument which succeeds in 42. That conclusion certainly seems correct demonstrating that it is. Nor does as far as it goes. It is possible however that Article 314 assist. That article merely it does not fully answer the point raised. provides that all the texts of the Treaty Although the appellant's pleadings before are equally authentic; no principle that all the Court of First Instance are laconic, it official languages of the Community must may be that she invoked Regulation No 1 in all circumstances be treated equally may merely as an additional argument suppor- be inferred from that statement. That is all ting her principal assertion that the lan- the more obvious given the inclusion of guage regime was discriminatory contrary Irish in the language versions of the Treaty stated to be authentic. Irish however is not for most purposes an official language of 11 — Paragraph 57 of the judgment. the Community. In particular it is not 12 — Paragraphs 58 and 59 of the judgment. included in 'the official languages and the

working languages of the institutions of the must be used for all purposes as working Union' listed in Article 1 of Regulation languages of all institutions of the Union, No 1. 13 nor can any such proposition be inferred from it. In any event the Office is not an institution. The Office is mentioned in neither Article 7(1) EC, which lists the institutions, nor Part Five of the Treaty, entitled 'Institutions of the Community'. 45. Second, the appellant submits that the Moreover the preamble to Regulation Court has confirmed that all the language No 40/94 18 confirms that the Office is versions must, in principle, be recognised as not an institution and was not intended to having the same weight regardless of the be treated as one. size of the population of the Member States using the language in question. 14 Greece makes a similar point. 15 That proposition however was made in the context of the need for a uniform interpretation of Com- munity legislation and concerns the exer- cise which the Court sometimes undertakes of comparing different language versions in cases where there are discrepancies between some of those versions. It does not - nor can it - itself provide support for the view that in all circumstances all the official languages are to have equal status 47. Next, the appellant and Greece invoke for all purposes. Article 21 EC. That article states that every citizen of the Union may write to 'any of the institutions or bodies referred to in this Article or in Article 7' in any of the official languages and have an answer in the same language. Article 21 refers to the European 46. The appellant then states that the Parliament and the Ombudsman. Article 7 fundamental principle that the official refers to the European Parliament, the languages are equal is developed and con- Council, the Commission, the Court of firmed in Regulation No 1. That Regu- Justice, the Court of Auditors (which are lation, which is based on what is now collectively described as 'institutions'), the Article 290 EC, 16 lays down rules govern- Economic and Social Committee and the ing the languages of the institutions of the Committee of the Regions. The Office is Community. 17 Nowhere however does it thus not among the institutions and bodies state that all the Community languages to which Article 21 applies and the con- clusion of the Court of First Instance to that effect in paragraph 64 of its judgment is 13 — Set out in paragraph 4 above. clearly correct. In any event, the present 14 — Case C-296/95 EMU Tobacco (1998) ECR I-1605, para- case concerns not the rights of citizens of graph 36 of the judgment. 15 — Greece refers to Case C-372/88 Cricket St Thomas [1990] the Union acting as such but the professio- ECR I-1345. 16 — Set out in paragraph 2 above. 17 — See the citation in the preamble, set out in paragraph 3 above. 18 — See the 11th recital, set out in paragraph 8 above.

49. The only cases cited which concern the right to use a particular language however are Mutsch and Bickel and Franz, neither of which helps the appellant. In neither case was it alleged or held that the restriction on the applicant's right to use his mother tongue infringed a fundamental principle that all Community languages are equal. Mutsch concerned the lawfulness of Bel- gian rules on the use of languages in the national courts. Those rules provided that, where an accused person of Belgian 50. For the reasons given above, the appel- nationality resided in a German-speaking lant has not in my view succeeded in municipality, the proceedings before the demonstrating that Article 12 enshrines a criminal court in question were to take fundamental principle of Community law place in German. Mr Mutsch, a Lux- that all official languages must in all circumstances be treated equally for all purposes. The ruling of the Court of First 19 — Case 186/87 Cowan [1989] ECR 195, paragraph 10 of the Instance set out in paragraph 41 above judgment; Case C-43/95 Data Delecta and Forsberg [1996 ECR I-4661, paragraph 16 and Case C-274/96 must accordingly stand, and moreover Bickel and Franz [1998] ECR I-7637, paragraph 14. could properly have been expressed in 20 — Case 137/84 Mutsch [1985] ECR 2681, paragraph 11 of the judgment. more general terms.

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Differentiated treatment of languages Justification and proportionality

52. The Court of First Instance implicitly 54. By implication the Court of First accepted, in paragraph 62 of its judgment, Instance accepted the arguments advanced that in so far as Article 115(3) concerned before it by the Council, which it summa- inter partes proceedings it differentiated rised as follows in the judgment: between the official languages of the Com- munity since it limited the languages which could be used in such proceedings (in most circumstances) to one of the languages of the Office. The Court of First Instance concluded however 2 1 that the requirement '... the purpose of [the rules governing in Article 115(3) was both justified and languages instituted by the Regulation] is to proportionate. Since the appellant appears enable undertakings to obtain, following a to challenge that conclusion, I will consider single, practical and accessible procedure, her arguments on those issues.

22 — Paragraph 62 of the judgment. 21 — In paragraphs 62 and 63. 23 — Paragraph 63 of the judgment.

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KIK v OHIM

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58. In the original proposal for the Regu- of around BEF 100 million; each trade lation 2 6 (issued in 1980), Article 103, mark application would then have involved headed '[Language]', read: 'The language at least BEF 10 000 2 7 in translation costs in of the Office for procedural purposes is...'. a Community of six languages. The fees It was thus intended to restrict the Office to which users would have had to be charged the use of one language for procedural would therefore have been so high that the purposes. It is clear from the Explanatory Community trade mark would have lost its Memorandum accompanying the proposal attraction and would not have been used. that the Commission had given careful In addition, the Commission stressed that thought to the appropriate linguistic with seven (from 1981) and later eight and regime. nine languages, the Office would have been unable to handle thousands of procedures within the requisite time-limits.

59. In particular the Commission noted first that the 'establishment of a Trade Mark Office raises a completely new prob- lem for the Community as regards the linguistic arrangements to be adopted, since the Office will be the first Community body 61. Now of course there are 11 official to be making administrative decisions in languages, and there may shortly be 20. accordance with a formal, precisely The concerns expressed by the Commission defined, multi-stage procedure'. Next, the are therefore even weightier. Commission referred to 'the problem of the sheer number of applications for Commu- nity trade marks reaching the Office, estimated at 10 000 a year'. It may be noted that the annual average is now over 40 000.

63. The comparison which the appellant wide divergences between the workloads draws with Member States seeking to involved: whereas the Office stated at the defend themselves on financial grounds hearing that from the beginning of 1996 to against charges of infringement of funda- the end of October 2002 it dealt with mental Treaty freedoms is not in my view 288 946 applications (an annual average of apposite. In adopting the legal framework over 40 000) and that in the same period for establishing the Office, including its 55 889 opposition proceedings were regis- language regime, the Council was correctly tered (an annual average of some 8 000), in driven by the imperative of setting in place 2001 the Commission took only 340 merger a system which would work. Common decisions and (in DG Competition) sense suggests that imposing on the Office 451 State aid decisions. 31 As for the a requirement to operate for all purposes in Community Plant Variety Office, in 2001 all official languages would have seriously it granted 1 518 Community Plant Variety undermined that objective, all the more so rights, 32 and the Council states in its as there would clearly be an ever-increasing written observations that in six years there number of official languages in the have been only 12 opposition proceedings. future. 29 It is evident that business organi- sations — in general representing the vast majority of those whom the Community trade mark was intended to benefit — took the same view. 30 Had the Council imposed on the Office mandatory use of all Com- munity languages for all purposes, that to my mind would have been both unjustified and disproportionate.

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Precisely because the parties will be indi- pleaded that no reasons had been given in viduals who will not necessarily share a the Regulation for the limitation on lan- common language, it was thought necess- guages there laid down but that the Court ary to lay down specific rules determining of First Instance neither dealt with that plea the use of languages. 33 nor raised the question of its own motion. Although in paragraphs 62 and 63 of the judgment the Court of First Instance appears to have considered whether there were valid reasons for the language regime 66. Finally in the context of proportional- instituted by the Regulation, Greece sub- ity the appellant argues that the Council mits that the Court of First Instance did not could have achieved the same end with less properly assess the reasons given in the discriminatory effect by designating one Regulation but in fact added a reason official language, such as English, for all where none was given. It is clear from the proceedings before the Office. That argu- case-law however that the Court of First ment appears perverse: it is hard to see how Instance cannot in any circumstances sub- favouring one language could be regarded stitute its own reasoning for that of the as less discriminatory than favouring five. author of the contested act. 34 However, I do not consider that it is necessary to take a view on the argument since in putting it forward the appellant is raising a wholly new plea which was not raised before the Court of First Instance. Since in an appeal the Court is competent only to review the legal assessment made by the Court of First Instance of the pleas argued before it, an appellant cannot intro- duce a fresh submission going to the substance of the case.

'That departure from primary Community law is all the more serious because no grounds are given for it in the Regu- lation.' 35 71. In the present case, the language regime established by the Regulation is the subject of one article out of 143; the principles set out in the preceding paragraph are in my view manifestly applicable. The general and essential objectives of the Regulation are clearly spelt out in the 18 recitals in the 69. Admittedly, the Court of First Instance preamble. It would be disproportionate to does not revert to that issue in its judgment. require explicit reasons to be given separ- Since however that court found (correctly, ately for each of the articles laying down in my view) that there was no such specific details of the Community trade departure from primary Community law, mark system which the Regulation aims to there was no need for it to examine the plea establish. further.

The argument in the alternative 74. I concur with the Office, Spain, the Council and the Commission that that submission is manifestly inadmissible since the contested decision was not based on the 73. In the alternative, the appellant submits second sentence of Article 115(4). Nor in the context of her second ground of moreover has the appellant been in any appeal that, even if the whole of Article 115 way prejudiced by that provision since it is not unlawful, the second sentence of appears that the Office in fact communi- Article 115(4) is unlawful since it is incom- cated with her in Dutch from the outset. patible not only with the prohibition on Finally, the submission that the second discrimination but also with the principle sentence of Article 115(4) is in itself underlying Article 115(1) and the first unlawful appears to be a wholly new plea sentence of Article 115(4), namely that which was not raised before the Court of the language in which the application is First Instance. The appellant's argument in filed is the language of proceedings. the alternative is accordingly inadmissible.

Conclusion

75. I am therefore of the opinion that the Court should:

(1) dismiss the appeal;

(2) order the appellant to bear the costs of the appeal.

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