Last Tuesday 7th December, the General Court issued an Order in a case concerning an action for annulment of a EUIPO Board of Appeal Decision. The case would have been a standard action for annulment in a trademark case before the General Court but ended up being an examination of the conditions necessary for lawyers certified by the UK Bar to represent parties before the Courts of the EU.
The action was ultimately dismissed as inadmissible because the legal representatives for Daimler AG did not fulfill the requirements of the Statute of the Court. In reaching its conclusion the General Court looked into the different procedures for which UK lawyers are still allowed to represent clients before the Courts following Brexit before concluding that this particular case did not fall under any such procedures.
Please find below a brief Info Rapide covering the salient points of the Order that should be of particular interest to anybody following the consequences and outcomes of the UK withdrawal from the European Union (Brexit).
7th December 2021
Following Brexit, legal practitioners from the United Kingdom may only represent parties before the courts of the EU under specific conditions laid out in the Withdrawal Agreement1. Failing such conditions, an action by a party represented by UK legal practitioners is declared manifestly inadmissible.
Summary
For the first time the General Court was called upon to look into the application to UK legal practitioners of requirements for representation before the Courts of the EU since the withdrawal of the UK and Northern Ireland from the European Union (Brexit).
An action for the annulment of a EUIPO Board of Appeal decision was dismissed as manifestly inadmissible as the applicants’ legal representatives before the General Court failed to satisfy the conditions of the Statute of the CJEU2. Daimler AG had brought an action against a decision of the First Board of Appeal EUIPO relating to opposition proceedings between it and Volkswagen AG.
In its application, Daimler stated that it was represented by a ‘patent attorney litigator’ and by two Barristers. In accordance with its rules of procedure, The General Court requested that Daimler confirm that its legal representatives were authorised to practise before a court of a Member State or of an EEA State.
Reasoning
Concerning the ‘patent attorney litigator’ the General Court recalled that this is “not a lawyer within the meaning of the Statute of the CJEU and accordingly a ‘patent attorney litigator’ is not authorised to represent a party before the General Court3”.
Concerning the two barristers, the General Court noted that there are two cumulative conditions that must be satisfied for a person to be validly permitted to represent parties before the Courts of the EU. First, that person must be a lawyer, and second, he or she must be authorised to practise before a court of a Member State or of another State that is a party to the EEA Agreement.
The General Court then outlined the various situations, since the entry into force of the withdrawal agreement, in which a lawyer who is authorised to practise before the courts or tribunals of the UK may represent or assist a party before the Courts of the EU.
These situations are as follows:
- Proceedings that were pending before the Courts of the EU before the end of the transition period (31 December 2020);
- Proceedings for failure to fulfill obligations brought by the Commission against the UK;
- Challenges of decisions adopted by institutions, bodies, offices and agencies of the EU before the end of the transition period (31 December 2020);
- Administrative procedures concerning (i) compliance with EU law by the UK or by natural or legal persons residing or established in the UK and (ii) compliance with EU law relating to competition in the UK, as well as (iii) State Aid procedures, or (iv) European Anti-Fraud Office (OLAF) procedures;
- Ongoing procedures before the EUIPO.
The present action for annulment was lodged on 12 July 2021, after the end of the transition period. It is an action pursuant to the EU Trade Mark Regulation. The challenged decision was adopted on 7 May 2021, also after the end of the transition period.
The General Court found that the action in question was not covered by any of the situations provided for in the withdrawal agreement in which a lawyer who is authorised to practise before the courts or tribunals of the UK may represent or assist a party before the Courts of the EU.
Since the application did not satisfy the conditions laid down in the Statute of the CJEU the action was dismissed as manifestly inadmissible.
1 Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ 2020 L 29, p.7)
2 Article 19 of the Statute of the CJEU applicable to the General Court pursuant to Article 53 of the same Statute.
3 Order of 20th October 2008, Imperial Chemical Industries v OHIM (Factory Finish), T-487/07
Source – EU General Court (via e-mail)