Order of 5 Jun 2025, C-800/24 (Tertianum v EUIPO)

ORDER OF THE COURT (Tenth Chamber)

5 June 2025 (*)

( Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Manifest inadmissibility – Article 56 of the Statute of the Court of Justice of the European Union – Appeal brought by a person who was not a party to the proceedings before the General Court – EU trade mark – Articles 174 to 176 of the Rules of Procedure of the General Court – Replacement of a party – Transfer of an intellectual property right during the proceedings before the General Court – No application for replacement )

In Case C-800/24 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 13 November 2024,

Tertianum Services AG, established in Baar (Switzerland), represented by S. Fröhlich, M. Hartmann and H. Lerchl, Rechtsanwälte,

appellant,

the other parties to the proceedings being:

Tertianum AG, established in Dübendorf (Switzerland), represented by S. Fröhlich and M. Hartmann, Rechtsanwälte,

applicant at first instance,

European Union Intellectual Property Office (EUIPO), represented by D. Stoyanova-Valchanova, acting as Agent,

defendant at first instance,

DPF AG, established in Berlin (Germany), represented by A. Nordemann, Rechtsanwalt,

intervener at first instance,

THE COURT (Tenth Chamber),

composed of D. Gratsias, President of the Chamber, J. Passer (Rapporteur) and B. Smulders, Judges,

Advocate General: L. Medina,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        By its appeal, Tertianum Services AG seeks to have set aside the judgment of the General Court of the European Union of 4 September 2024, Tertianum v EUIPO – DPF (TERTIANUM) (T-73/23, ‘the judgment under appeal’, EU:T:2024:578), by which the General Court dismissed the action brought by Tertianum AG for annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 2 November 2022 (Case R 1706/2021-4) (‘the decision at issue’).

 Background to the dispute

2        The background to the dispute, as set out in paragraphs 2 to 11 of the judgment under appeal, may be summarised as follows.

3        On 11 August 2016, DPF AG filed an application for registration of a figurative mark for services in Classes 35, 36, 41, 43 and 44 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended.

4        On 13 December 2016, Tertianum filed a notice of opposition to that figurative mark. That opposition was based on the existence of another figurative mark (‘the mark at issue’).

5        On 28 September 2021, the Opposition Division of EUIPO adopted a decision rejecting that opposition.

6        On 4 October 2021, Tertianum filed a notice of appeal against that decision.

7        By the decision at issue, the Board of Appeal of EUIPO dismissed that appeal.

 The action before the General Court and the judgment under appeal

8        By application lodged at the Registry of the General Court on 16 February 2023, Tertianum brought an action for annulment of the decision at issue.

9        By the judgment under appeal, the General Court dismissed that action as unfounded.

 Form of order sought by the appellant and the procedure before the Court of Justice

10      By its appeal, Tertianum Services claims that the Court should:

–        set aside the judgment under appeal;

–        annul the decision at issue; and

–        order EUIPO to pay the costs of the proceedings before the General Court and the Court of Justice.

11      As an annex to its appeal, Tertianum Services submitted to the Court a request that the appeal be allowed to proceed, in which it submits that the appeal raises two issues that are significant with respect to the unity, consistency and development of EU law.

12      By letter of 2 December 2024, the Court of Justice invited the parties before the General Court to submit their observations on that request and on whether, having regard to Article 56 of the Statute of the Court of Justice of the European Union, Article 174 of the Rules of Procedure of the General Court and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Tertianum Services may be regarded as a party entitled to make such a request and to lodge the corresponding appeal.

13      Tertianum, EUIPO and DPF submitted their observations on that matter within the period prescribed for that purpose.

 Admissibility of the appeal

14      Article 181 of the Rules of Procedure of the Court of Justice provides that, where the appeal or cross-appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal or cross-appeal in whole or in part.

15      That article must be applied in the present case.

 Observations of the parties

16      In its appeal and its request that the appeal be allowed to proceed, Tertianum Services essentially presents itself as the successor in title to Tertianum. In that regard, Tertianum Services states that Tertianum transferred to it all of Tertianum’s trade marks, including the mark at issue, under a trade mark transfer agreement concluded in April 2024, which is annexed to that appeal. Furthermore, as additional evidence of the transfer of the mark at issue, Tertianum Services produces extracts from the respective registers of the World Intellectual Property Organization (WIPO) and the Deutsches Patent- und Markenamt (German Patent and Trade Mark Office, Germany) recording its registration as the proprietor of that mark.

17      In its observations, EUIPO submits, first of all, that it follows from the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union that, without prejudice to the third paragraph of that article, an appeal may be brought before the Court of Justice, in principle, only by a person who was a party to the proceedings before the General Court.

18      Next, EUIPO maintains that account should be taken of the fact that, in the specific field of EU trade marks, the EU legislature has established a mechanism for the replacement of a party which applies where an intellectual property right is transferred between two different persons during the proceedings, a mechanism set out in Articles 174 to 176 of the Rules of Procedure of the General Court. An examination of the content and scheme of that mechanism shows that replacement requires both an application by the third party concerned and a decision of the General Court, so that it cannot be regarded as resulting automatically either from the transfer of a given trade mark from one person to another or from the registration of that transfer with the competent bodies. In the present case, EUIPO claims that Tertianum Services did not, however, make use of that mechanism, despite having had the opportunity to do so. Moreover, Tertianum Services does not rely on any particular circumstances which might entitle it to lodge an appeal notwithstanding its inaction.

19      Lastly, EUIPO contends that the existence of Article 56 of the Statute of the Court of Justice of the European Union and Articles 174 to 176 of the Rules of Procedure of the General Court does not infringe the right to effective judicial protection guaranteed by Article 47 of the Charter. The limitation which those three articles of the Rules of Procedure of the General Court place on the exercise of that right is justified by the pursuit of the objective of ensuring the proper administration of justice and is proportionate for that purpose.

20      DPF expresses a similar view in more concise terms.

21      Tertianum submits, in the first place, that Tertianum Services brought the appeal with its express prior consent, in the latter’s capacity as the new owner of the mark at issue and therefore as a person whose rights are affected by the judgment under appeal.

22      In the second place, Tertianum states, in essence, that EU law generally allows a party to proceedings to be replaced during those proceedings by a third party to whom it has transferred one or more intellectual property rights forming the subject matter of those proceedings. In particular, such replacement may take place during proceedings before the General Court, pursuant to Articles 174 to 176 of its Rules of Procedure. It is true that no provision is made for a similar mechanism in proceedings before the Court of Justice. However, having regard to the right to effective judicial protection enshrined in Article 47 of the Charter, Tertianum argues that the view should be taken in the present case that Tertianum Services, as the new owner of the mark at issue, is entitled to bring an appeal against the judgment under appeal.

 Findings of the Court

23      It follows from the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union that, subject to the third paragraph of that article, an appeal may be brought before the Court of Justice only by the parties and interveners in the proceedings before the General Court. The purpose of circumscribing the persons capable of bringing such an appeal in a given case is to safeguard the proper administration of justice, not least by ensuring a degree of foreseeability in the appeals which can be brought against decisions of the General Court and by avoiding the circumvention of time limits and conditions of admissibility which apply to other legal remedies provided for by EU law (judgments of 1 October 2015, Electrabel and Dunamenti Erőmű v Commission, C-357/14 P, EU:C:2015:642, paragraph 30, and of 27 February 2025, Nouryon Performance Formulations v Commission, C-353/23 P, EU:C:2025:115, paragraph 32).

24      It follows that a person who was not a party to the proceedings before the General Court in a given case does not have standing to bring an appeal against the decision closing those proceedings, unless there are special circumstances conferring such standing on that person (judgments of 6 May 2021, Bayer CropScience and Bayer v Commission, C-499/18 P, EU:C:2021:367, paragraph 43, and of 27 February 2025, Nouryon Performance Formulations v Commission, C-353/23 P, EU:C:2025:115, paragraph 33).

25      In the present case, it is common ground that Tertianum Services has brought an appeal against the judgment under appeal even though it was not a party to the proceedings before the General Court.

26      For that reason, Tertianum Services manifestly does not have standing to bring that appeal unless it can be established that there are special circumstances conferring such standing on it.

27      In that regard, Tertianum Services and Tertianum submit, in essence, first of all, that Tertianum, which was the applicant before the General Court, transferred all of its trade marks to Tertianum Services during the proceedings before that court, including the mark at issue; next, that Tertianum expressly consented, when that transfer took place, to Tertianum Services continuing those proceedings, if necessary by bringing an appeal before the Court of Justice; and, lastly, that such replacement is permitted by EU law.

28      In the light of that situation, it should be observed, in the first place, that, generally speaking, the transfer of a series of trade marks which does not correspond, inter alia, to a transfer of all the assets and liabilities of one person to another person, together with a cessation of the former’s existence, is not sufficient to give rise to a transfer of the procedural rights of the former, as a party at first instance, to the latter (see, by analogy, judgment of 27 February 2025, Nouryon Performance Formulations v Commission, C-353/23 P, EU:C:2025:115, paragraph 35).

29      In the second place, the fact that one of the parties to a dispute before the General Court transfers to a third party one or more intellectual property rights at issue in that dispute, during the proceedings before that court, does not, in itself, amount to a special circumstance entitling that third party to bring, before the Court of Justice, an appeal against the decision delivered by the General Court in that dispute.

30      In such a situation, the Rules of Procedure of the General Court provide, in Articles 174 to 176 thereof, for a mechanism for the replacement of a party, under which a third party to whom one of the parties to a dispute pending before that court has transferred one or more intellectual property rights at issue in that dispute may, as successor, apply to replace, in the context and for the purposes of that dispute, the party having transferred those rights to it.

31      As is apparent from Articles 174 to 176, such an application, which must contain, inter alia, a statement of the circumstances and evidence justifying the replacement, may be lodged at any stage of the proceedings. In addition, the parties must be given the opportunity to submit their observations on that application. Lastly, the General Court must subsequently take a decision by way of a reasoned order or in the decision closing the proceedings. If the application is granted, the successor must accept the case as he or she finds it at the time of that replacement and is bound by the procedural documents lodged by the party whom he or she replaces.

32      It follows from Articles 174 to 176 of the Rules of Procedure of the General Court that, if the successor makes use of the possibility afforded by that mechanism and the application for replacement is granted, resulting in the successor becoming a party to the proceedings before the General Court, he or she may subsequently bring an appeal before the Court of Justice, in accordance with Article 56 of the Statute of the Court of Justice of the European Union.

33      By contrast, if the successor does not make use of that possibility, he or she cannot be allowed to bring such an appeal, since that would have the effect of circumventing not only the mechanism provided for in Articles 174 to 176 of the Rules of Procedure of the General Court, but also Article 56 of the Statute of the Court of Justice of the European Union, unless, as stated in paragraph 24 above, the existence of particular circumstances can be established.

34      In the present case, Tertianum Services has nevertheless failed to establish the existence of such particular circumstances, even though the mark at issue was transferred in sufficient time to enable it to have recourse to the mechanism provided for in Articles 174 to 176 of the Rules of Procedure of the General Court. That transfer took place in April 2024, that is to say, more than four months before the date on which the judgment under appeal was delivered, namely 4 September 2024.

35      In the third and last place, it is true that the existence of such a mechanism makes the exercise of the right to effective judicial protection enshrined in Article 47 of the Charter subject to certain requirements, non-compliance with which is liable to affect the admissibility of the legal action concerned.

36      However, Article 52(1) of the Charter provides that limitations may be placed on the exercise of the rights and freedoms guaranteed by the Charter on condition that (i) those limitations are provided for by law, (ii) they respect the essence of the rights and freedoms at issue, and (iii) in compliance with the principle of proportionality, they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (judgments of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters), C-245/19 and C-246/19, EU:C:2020:795, paragraph 51, and of 18 January 2024, RTL Nederland and RTL Nieuws, C-451/22, EU:C:2024:54, paragraph 68).

37      The mechanism for replacing a party provided for in the Rules of Procedure of the General Court satisfies those different conditions.

38      Thus, first of all, that mechanism satisfies the condition that any limitation on the exercise of the right to effective judicial protection must be ‘provided for by law’ within the meaning of the case-law of the Court of Justice, since Articles 174 to 176 of the Rules of Procedure of the General Court clearly and precisely define its scope (see, by analogy, judgments of 17 December 2015, WebMindLicenses, C-419/14, EU:C:2015:832, paragraph 81, and of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters), C-245/19 and C-246/19, EU:C:2020:795, paragraph 76).

39      Next, that mechanism not only respects, but is intended precisely to facilitate respect for the essence of the right to an effective remedy, and more specifically the requirement that the person who holds that right should be able to access a court or tribunal with the power to ensure respect for the rights guaranteed to that person by EU law (see, in that regard, judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters), C-245/19 and C-246/19, EU:C:2020:795, paragraph 66). The very purpose of Articles 174 to 176 of the Rules of Procedure of the General Court is to enable a person to whom an intellectual property right at issue in a dispute pending before that court has been transferred to have access to that court as from that transfer and, subsequently, to bring an appeal, before the Court of Justice, against the decision closing the proceedings before the General Court, provided that that person complies, in particular, with the various conditions laid down in Article 175 thereof, such as those relating to representation and to the form and required content of the application.

40      Finally, while it is true that a person who declines to have recourse to the mechanism in question is, in so doing, deprived of the possibility of becoming a party to the proceedings before the General Court and of subsequently bringing an appeal before the Court of Justice, those legal consequences associated with that person’s inaction appear, on the one hand, to be justified. As is apparent from paragraphs 23 and 33 above, Articles 174 to 176 of the Rules of Procedure of the General Court are intended, to that extent, to ensure the proper administration of justice and thus to meet an objective of general interest recognised by the European Union (see, to that effect, judgment of 15 September 2016, Star Storage and Others, C-439/14 and C-488/14, EU:C:2016:688, paragraph 55).

41      On the other hand, since Articles 174 to 176 expressly allow the third party concerned to make an application for replacement at any stage of the proceedings before the General Court and do not preclude special circumstances from being taken into account, the limitation which, from a temporal standpoint, is imposed on the exercise of the right to effective judicial protection with effect from the end of those proceedings, if the third party concerned declines to make such a request, cannot be considered to be disproportionate.

42      For all those reasons, the present appeal must be dismissed as manifestly inadmissible, without it being necessary, in consequence, to rule on the request that the appeal be allowed to proceed.

 Costs

43      Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In accordance with the second sentence of Article 184(4) of those rules, where an intervener at first instance has not brought the appeal but has taken part in the written or oral part of the proceedings before the Court of Justice, the Court may decide that that person is to bear his or her own costs.

44      In the present case, Tertianum Services has been unsuccessful in its appeal, but the other parties to the proceedings have not applied for costs. Each party must therefore be ordered to bear its own costs.

On those grounds, the Court (Tenth Chamber) hereby orders:

1.      The appeal is dismissed as manifestly inadmissible.

2.      Tertianum Services AG, Tertianum AG, the European Union Intellectual Property Office (EUIPO) and DPF AG shall bear their own costs.

Luxembourg, 5 June 2025.

A. Calot Escobar

D. Gratsias

Registrar

President of the Chamber

*      Language of the case: English.