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Tuesday, September 16, 2003

ECJ upholds Language Regime of the OHIM.

In the

Case C-361/01 P the

European Court of Justice (ECJ) has defended the restricted language regime of the OHIM allowing only a subset of five languages (English, French, German, Italian and Spanish; cf.

Article 115 CTMR) out of the full set of eleven Official languages of the EU (Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and Swedish).

In a CTM application, which was in Dutch, the applicant had indicated Dutch as a second language. By a decision the examiner had 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 satisfied.

An application for annulment of the decision of the OHIM was lodged at the Registry of the Court of First Instance. However, the Court of First Instance dismissed the action.

The case came to the ECJ. The appellant advanced two grounds of appeal. The first is incorrect interpretation by the Court of First Instance of Article 115 of Regulation No 40/94. The second is infringement by the Court of First Instance of Community law and, more specifically, of Article 6 of the Treaty, in not declaring Article 115 of the Regulation No 40/94 to be unlawful.

However, the ECJ concluded that according to Article 115(4), the language of proceedings before the Office is to be the language used for filing the application for a Community trade mark, although the second language chosen by the applicant may be used by the Office to send him written communications. It follows from that provision that the option of using a second language for written communications is an exception to the principle that the language of proceedings be used, and that the term written communications must therefore be interpreted strictly. Since the proceedings comprise all such acts as must be carried out in processing an application, the Court concluded that the term procedural documents covers any document that is required or prescribed by the Community legislation for the purposes of processing an application for a Community trade mark or necessary for such processing, be they notifications, requests for correction, clarification or other documents. Contrary to the Office's submissions, all such documents must therefore be drawn up by it in the language used for filing the application. In contrast to procedural documents, written communications, as referred to in the second sentence of Article 115(4) of Regulation No 40/94, are any communications which, from their content, cannot be regarded as amounting to procedural documents, such as letters under cover of which the Office sends procedural documents, or by which it communicates information to applicants. In the light of the interpretation to be given to Article 115(4) of Regulation No 40/94,the ECJ concluded that the Court of First Instance was right to assume that Regulation No 40/94 cannot be taken, in itself, as in any sense implying differentiated treatment as regards language, given that it in fact guarantees use of the language of the application filed as the language of proceedings.

Moreover, the appellant had submitted that the Court of First Instance erred as to Community law, in particular Article 6 of the Treaty, in dismissing the appeal in so far as it had been argued by the appellant that the entire language regime established by Article 115(2) to (6) of Regulation No 40/94 was unlawful, because of first of all, the said regime infringes the fundamental principle of equality of languages. This principle arguably manifests itself several times in Community law. Thus, one example is Article 248 of the EC Treaty (now, after amendment, Article 314 EC), which provides that all the language versions of the Treaty are authentic. Another is Regulation No 1, which lays down the official languages of the Community, provides that any national of a Member State may write to an institution in one of the official languages and receive a reply in that language and states that the Official Journal of the European Union is to appear in all eleven official languages. The third paragraph of Article 8d of the Treaty, which was inserted in that provision by the Treaty of Amsterdam, confirms the right of every citizen of the Union to write to any of the institutions or bodies referred to in that article or in Article 4 of the EC Treaty (now Article 7 EC) in one of the languages mentioned in Article 248 of the Treaty and to have an answer in the same language. The applicant also refers to the Court's settled law on the principle of equality, of which the prohibition of discrimination on grounds of nationality mentioned in Article 6 of the Treaty is one expression. Under that case-law, particular importance is attached to the protection of rights and to facilitating matters for citizens as regards languages.

The ECJ nevertheless dismissed the case also in view of this second ground, saying that the appellant has not advanced any arguments that call into question the conclusions reached by the Court of First Instance with regard to the objective reason that justifies the difference.

Any other decision of the ECJ might well have rocked the structure of various EU institutions in their foundations. In particular, if the ECJ would have allowed the secong ground as put forward by the appellant, this would have been a blow even to the ongoing attempts to find a workable language regime for the Community Patent.

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