Parties Grounds Operative part

In Case C‑483/07 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 5 November 2007,

Galileo Lebensmittel GmbH & Co. KG, established in Trierweiler (Germany), represented by K. Bott, Rechtsanwalt,

appellant,

the other party to the proceedings being:

Commission of the European Communities, represented by G. Braun and E. Montaguti, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Sixth Chamber),

composed of J.­-C. Bonichot (Rapporteur), President of the Chamber, P. Kūris and L. Bay Larsen, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1. By its appeal, Galileo Lebensmittel GmbH & Co. KG (‘Galileo Lebensmittel’ or ‘the appellant’) seeks the setting aside of the order of 28 August 2007 in Case T‑46/06 Galileo Lebensmittel v Commission (‘the order under appeal’), by which the Court of First Instance dismissed as inadmissible the action for annulment of the Commission’s decision to reserve – pursuant to Article 9 of Commission Regulation (EC) No 874/2004 of 28 April 2004 laying down public policy rules concerning the implementation and functions of the .eu Top Level Domain and the principles governing registration (OJ 2004 L 162, p. 40) – the internet domain name ‘galileo.eu’ as a .eu Top Level Domain (‘TLD’) for use by the Community institutions and bodies (‘the contested decision’).

Legal context

2. The legal framework consists of two regulations, namely, a basic regulation, Regulation (EC) No 733/2002 of the European Parliament and of the Council of 22 April 2002 on the implementation of the .eu Top Level Domain (OJ 2002 L 113, p. 1), and an implementing regulation, Regulation No 874/2004.

Regulation No 733/2002

3. Article 5 of Regulation No 733/2002, entitled ‘Policy framework’, provides as follows:

‘1. After consulting the Registry and following the procedure referred to in Article 6(3), the Commission shall adopt public policy rules concerning the implementation and functions of the .eu TLD and the public policy principles on registration. Public policy shall include:

(a) an extra-judicial settlement of conflicts policy;

(b) public policy on speculative and abusive registration of domain names including the possibility of registrations of domain names in a phased manner to ensure appropriate temporary opportunities for the holders of prior rights recognised or established by national and/or Community law and for public bodies to register their names;

(c) policy on possible revocation of domain names, including the question of bona vacantia ;

(d) issues of language and geographical concepts;

(e) treatment of intellectual property and other rights.

2. Within three months of the entry into force of this Regulation, Member States may notify to the Commission and to the other Member States a limited list of broadly-recognised names with regard to geographical and/or geopolitical concepts which affect their political or territorial organisation that may either:

(a) not be registered, or

(b) be registered only under a second level domain according to the public policy rules.

The Commission shall notify to the Registry without delay the list of notified names to which such criteria apply. The Commission shall publish the list at the same time as it notifies the Registry.

Where a Member State or the Commission within 30 days of publication raises an objection to an item included in a notified list, the Commission shall take measures, in accordance with the procedure referred to in Article 6(3), to remedy the situation.

…’

4. Under Article 7 of Regulation No 733/2002, ‘[t]he Community shall retain all rights relating to the .eu TLD including, in particular, intellectual property rights and other rights to the Registry databases required to ensure the implementation of this Regulation and the right to re-designate the Registry’.

Regulation No 874/2004

5. In the preamble to Regulation No 874/2004, it is stated that that regulation is based on ‘Regulation … No 733/2002 …, and in particular Article 5(1) thereof’.

6. Recital 9 in the preamble to Regulation No 874/2004 states that:

‘A Member State should be authorised to designate an operator that will register as a domain name its official name and the name under which it is commonly known. Similarly, the Commission should be authorised to select domain names for use by the institutions of the Community, and to designate the operator of those domain names. The Registry should be empowered to reserve a number of specified domain names for its operational functions.’

7. Article 9 of Regulation No 874/2004, entitled ‘Second level domain name for geographical and geopolitical names’, provides as follows:

‘Registration of geographical and geopolitical concepts as domain names in accordance with Article 5(2)(b) of Regulation (EC) No 733/2002 may be provided for by a Member State that has notified the names. This may be done under any domain name that has been registered by that Member State.

The Commission may ask the Registry to introduce domain names directly under the .eu TLD for use by the Community institutions and bodies. After the entry into force of this Regulation and not later than a week before the beginning of the phased registration period provided for in Chapter IV, the Commission shall notify the Registry of the names that are to be reserved and the bodies that represent the Community institutions and bodies in registering the names.’

8. Article 10(1) of Regulation No 874/2004 states that:

‘Holders of prior rights recognised or established by national and/or Community law and public bodies shall be eligible to apply to register domain names during a period of phased registration before general registration of .eu domain starts.

“Prior rights” shall be understood to include, inter alia, registered national and community trademarks, geographical indications or designations of origin, and, in as far as they are protected under national law in the Member State where they are held: unregistered trademarks, trade names, business identifiers, company names, family names, and distinctive titles of protected literary and artistic works.

…’

9. The third subparagraph of Article 12(2) of Regulation No 874/2004 provides as follows:

‘During the first part of phased registration, only registered national and Community trademarks … may be applied for as domain names ...’

10. Under Article 22(1) of Regulation No 874/2004:

‘An [alternative dispute resolution] procedure may be initiated by any party where:

…

(b) a decision taken by the Registry conflicts with this Regulation or with Regulation (EC) No 733/2002.’

Facts

11. The background to the dispute was set out as follows in paragraphs 11 to 16 of the order under appeal:

‘International system of internet domains

11 The internet Domain Name System (DNS) consists of a registry with a hierarchical structure which [contains] the names of all domains and the computers connected with them which are registered for certain undertakings and persons using the internet. The domain name is an electronic text which brings the internet user to a given page. The [TLD] is the part of the domain name on the right, after the last dot in the name. It designates the highest level of the geographical and organisational structure of the internet domain name system used for addresses. On the internet, the TLD is either the ISO two-letter country code or an abbreviation in English, for example, ‘.com’, ‘.net’ or ‘.org’. The allocation of codes for the various TLD names (for example, the ISO country code ‘.lu’ for Luxembourg) is coordinated by the body responsible for the allocation of internet names and addresses, the Internet Corporation for Assigned Names and Numbers (ICANN), a non-profit corporation incorporated under US law.

12 On the basis of that system, the ICANN Board of Directors authorised the allocation of the new “.eu” TLD on 21 May 2005 and authorised the President of ICANN to conclude an agreement with the European Registry for Internet Domains (EURid). EURid is a non-profit association incorporated under Belgian law which was designated by the Commission to manage the “.eu” TLD (see Commission Decision 2002/375/EC of 21 May 2003 on the designation of the .eu Top Level Domain Registry (OJ 2003 L 128, p. 29)).

Background to the dispute

13 Galileo Lebensmittel holds a licence, dated 13 February 2006, for the exclusive use of various trade marks registered on behalf of IFD Italian Food Distribution SA, established at Mertert (Luxembourg), including the word mark Galileo, registered with the German Patent and Trade Mark Office under number 2071982. IFD Italian Food Distribution, the holding company which owns Galileo Lebensmittel, does not engage in any business activities.

14 On 1 December 2005, Galileo Lebensmittel applied to EURid on the basis of Article 10(1) of Regulation No 874/2004 and through a German undertaking, 1 & 1 Internet AG, for registration of the domain name “galileo.eu”. On 7 December 2005, the 1 & 1 internet registration bureau lodged the application for registration with EURid electronically.

15 The applicant also applied for registration of the domain name “galileo-food.eu”. EURid acknowledged receipt of that application, but not of the application relating to the domain name “galileo.eu”.

16 EURid did not grant the application, nor did it acknowledge receipt thereof, because the domain name “galileo.eu” had been reserved for the Commission since 7 November 2005. EURid informed the applicant accordingly on 2 February 2006. In its message, EURid states that it had duly reserved that domain name on the basis of Article 9 of Regulation No 874/2004. That reservation had not been decided on by EURid but by the Commission. Given that the latter had reserved the domain name “galileo.eu”, note was no longer taken of the order in which applications for registration of that domain name were received.’

The action before the Court of First Instance and the order under appeal

12. On 13 February 2006, Galileo Lebensmittel brought an action before the Court of First Instance for annulment of the Commission’s decision to reserve the domain name ‘galileo.eu’ for use by the Community institutions and bodies.

13. By the order under appeal, the Court of First Instance dismissed the action as inadmissible on the ground that the decision, which was not addressed to Galileo Lebensmittel, was also not ‘of individual concern’ to it, within the meaning of the fourth paragraph of Article 230 EC.

14. The Court of First Instance referred to the case-law according to which the fact that it is possible to determine more or less precisely the number, or even the identity, of the persons to whom a measure applies does not mean that that measure must be regarded as being of individual concern to those persons so long as it is established that the measure applies to them by virtue of an objective legal or factual situation defined therein.

15. The Court of First Instance went on to point out that, in order for the contested measure to be of individual concern to Galileo Lebensmittel, that company had to be a member of a limited class of traders and it had to be entitled to particular protection. The Court of First Instance ruled that neither of those conditions was satisfied in the case before it.

16. With regard to the matter of particular protection, the Court of First Instance held that there was no provision under which the Commission was required to take account of Galileo Lebensmittel’s interests.

17. With regard to the question whether Galileo Lebensmittel was a member of a limited class of traders by reason of characteristics specific to the members of that class, the Court of First Instance held that, at the time when the list was drawn up, the number and identity of the persons likely to be concerned by the reservation was neither definitively known nor even determinable.

18. Each domain name on the list is reserved not just vis-à-vis holders of prior rights, such as the applicant claims to be, and public bodies, which is a very large group but which it is possible to identify, but also vis-à-vis the general public. Even supposing that no application is introduced during the period scheduled for early and privileged registration, it is always possible that such an application may be introduced during the period scheduled for general registration.

19. The Court of First Instance stated in that regard that the date to be taken into consideration for the purposes of determining whether there was a limited class of traders concerned was the date on which the contested measure was adopted.

Forms of order sought

20. In its appeal, Galileo Lebensmittel claims that the Court should:

– set aside the order under appeal and annul the contested decision;

– order the Commission to pay the costs of both sets of proceedings;

– in the alternative, set aside the order under appeal, refer the case back to the Court of First Instance and order the Commission to pay the costs of the appeal proceedings.

21. The Commission contends that the Court should:

– dismiss the appeal; and

– order the appellant to pay the costs.

The appeal

22. Under Article 119 of the Rules of Procedure, where an appeal is clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal by reasoned order.

23. In its appeal, Galileo Lebensmittel claims that the Court of First Instance vitiated the order under appeal by an error of law in finding that the Commission’s decision to reserve the domain name ‘galileo.eu’ for use by the Community institutions and bodies was not of individual concern to Galileo Lebensmittel.

24. The appeal may be analysed as raising, essentially, three pleas in law.

The first plea, alleging that the contested decision is not in the nature of a regulation

Arguments of the parties

25. The first plea alleges that the order under appeal does not take sufficient account of the particular circumstances of the case and, in particular, of the fact that the contested decision is not a regulation.

26. The case-law referred to by the Court of First Instance relates to actions concerning Community regulations. However, the contested decision is not in the nature of a regulation; rather, it is a measure applying a regulation to a specific case. Moreover, the contested decision is intended to protect the particular needs of the Commission with regard to domain names. The case-law used by the Court of First Instance is therefore inappropriate to the present case.

27. The Commission replies that the contested decision is a measure of general scope, which produces different effects on the various persons affected by it, according to the domain name for which registration was sought.

Findings of the Court

28. The fourth paragraph of Article 230 EC makes it possible for any natural or legal person to bring an action for annulment in the case of two types of decision: (i) decisions addressed to that person and (ii) decisions which, albeit in the form of a regulation or of a decision addressed to another, are of direct and individual concern to that person.

29. The essential distinguishing factor lies in whether or not the applicant for annulment is the addressee of the decision being challenged. If that is not so, the applicant must, in order to be able to bring an action for annulment, be directly and individually concerned by that decision. The case-law on that concept of individual concern applies, therefore, where the decision being challenged is not addressed to the applicant.

30. Consequently, and without there being any need to determine the exact nature of the contested decision, it is sufficient to note that it was not addressed to Galileo Lebensmittel. The Court of First Instance was fully entitled, therefore, in the case before it, to apply the case-law on the concept of individual concern for the purposes of determining whether Galileo Lebensmittel had locus standi.

31. The first plea in law must therefore be rejected as clearly unfounded.

The second plea, alleging that the order under appeal does not take account of the fact that the word mark which the appellant claims to own is entitled to particular protection

Arguments of the parties

32. The appellant claims that the domain name ‘galileo.eu’ constitutes a unique marketable economic asset and that the effect of the contested decision is essentially to withdraw it from the market without compensation.

33. As user and exclusive holder of a licence for the word mark Galileo, the appellant is individually concerned by the contested decision, which infringes its trade mark rights in that it prevents it from registering the domain name ‘galileo.eu’ and, to that extent, the order under appeal is, according to the appellant, vitiated by an error of law.

34. The appellant relies in that regard on the case-law flowing from Case 11/82 Piraiki‑Patraiki and Others v Commission [1985] ECR 207 and also refers to Case C‑309/89 Codorniu v Council [1994] ECR I‑1853, as well as the Opinion of the Advocate General in Case C‑125/06 P Commission v Infront WM [2008] ECR I‑1451).

35. The appellant adds that the Court of First Instance proceeded, incorrectly, to assess the criterion of individual concern in the light of the factual and legal position at the time when the contested decision was adopted, and maintains that there is no reason why individual concern should not be assessed in the light of circumstances subsequent to that date.

36. Lastly, the appellant claims that Regulation No 874/2004 gives it, as the holder of the German word mark Galileo, a special legal position in the context of the registration procedure. The appellant relies in that regard on recitals 6 and 16 in the preamble to Regulation No 733/2002 and on Article 5(1)(b) thereof, as well as on recital 11 in the preamble to Regulation No 874/2004 and on Articles 10(1) and (2) and 12(2) thereof.

37. The appellant maintains that the purpose of those provisions is to protect trade mark holders as regards the possibility of registering, as a top level ‘.eu’ domain name, their name as protected under trade mark law. Regulation No 874/2004 arranges for the phase during which registration is open to the general public to be preceded by a registration phase which is reserved for the holders of prior rights. That constitutes a privileged position as compared with the situation of applicants who, like the Commission, do not hold prior rights.

38. The Commission contends that the appellant may well be affected by the contested decision, but no more so than other traders, and that it cannot claim to be ‘individually’ affected.

39. In addition, the Commission contends that the provisions relied on by the appellant do not place it in a special legal position in the context of the procedure for registering a trade mark. The Commission adds that the measure that the appellant is seeking to challenge is not the contested decision, but Regulation No 874/2004 itself, and that the time-limits for bringing an action for annulment of that regulation have expired.

40. Lastly, the Commission contends that the appellant holds no exclusive right in relation to the name ‘Galileo’, which appears in at least 60 Community trade marks, 29 of which contain only that name.

Findings of the Court

41. Natural or legal persons can claim to be concerned individually only if the contested provision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from any other person and by virtue of those factors distinguishes them individually just as in the case of the addressee of a decision (Case 25/62 Plaumann v Commission [1963] ECR 95, at p. 107).

42. As was pointed out in the order under appeal, the Court has held in that regard that, where a contested measure affects a group of persons who were identified or identifiable at the time when that measure was adopted, by reason of criteria specific to the members of the group, those persons may be individually concerned by that measure inasmuch as they form part of a limited class of traders ( Piraiki-Patraiki and Others v Commission , paragraph 31, and Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, paragraph 60).

43. On that point, the Court of First Instance was fully entitled to hold that the number and the identity of the persons potentially concerned by the reservation of the domain name was neither definitively known nor even determinable. The Court of First Instance proceeded on the basis of a correct analysis of the procedure provided for in Regulation No 874/2004 when it pointed out that each domain name on the list is reserved not merely vis-à-vis holders of prior rights but also vis-à-vis the general public.

44. In that regard, the appellant cannot compare its situation with the circumstances under consideration in Piraiki-Patraiki and Others v Commission . In that judgment, the Court accepted as admissible an action for the annulment of a Commission decision – authorising a Member State to introduce protective measures with regard to imports of a product – brought by applicants who, before the adoption of that decision, had entered into contracts for the sale of the product concerned, performance of which could not be carried out, in whole or in part, because of that decision. In the present case, the contested decision in no way impedes the performance of contracts to which the appellant is a party. Accordingly, the situation on which it relies cannot give rise to the application of the case-law developed in Piraiki-Patraiki and Others v Commission .

45. Nor can the appellant rely on the fact that, in Codorniu v Council , the Court recognised, in favour of the company concerned in that case, the existence of a situation which differentiated that company from all other traders with regard to a legislative provision of general scope, inasmuch as that provision ultimately prevented the company from using its figurative mark in commerce. It is sufficient to point out in that regard that the contested decision does not prevent the appellant from using its trade mark, which means that its situation cannot be compared with that under consideration in Codorniu v Council .

47. Lastly, although the appellant claims, essentially, that the contested decision seriously impairs its economic interests, that fact alone is not sufficient to make the appellant ‘individually concerned’ within the meaning of Plaumann v Commission , and as a consequence to call into question the analysis made by the Court of First Instance, which merely applied that case-law.

48. In those circumstances, there is no basis for the appellant’s claim that the Court of First Instance erred in considering that it did not form part of a ‘limited class of traders’ within the meaning of the case-law referred to above.

49. The first branch of the second plea in law must therefore be rejected as clearly unfounded.

50. Similarly, the Court of First Instance was fully entitled to assess the question whether the persons concerned by the contested decision were identified or identifiable by reference to the date on which that decision was adopted (see, by analogy, Case 97/85 Union Deutsche Lebensmittelwerke and Others v Commission [1987] ECR 2265, paragraph 11).

51. The second branch of the second plea in law is therefore clearly unfounded.

52. Lastly, the appellant cannot claim that, in the order under appeal, the Court of First Instance failed to have due regard for the right to particular protection which the appellant claims to enjoy on the basis of the procedure under which the contested decision was adopted.

54. In the present case, although Regulation No 874/2004 admittedly sets aside in favour of holders of prior rights, such as the appellant claims to be, a period for the early and privileged registration of domain names, it provides no procedural guarantee which could be construed as a right in favour of Galileo Lebensmittel. Consequently, the appellant cannot rely on the provisions of Regulation No 874/2004 in order to argue that they ‘distinguish’ it for the purposes of the fourth paragraph of Article 230 EC.

55. The third branch of the second plea in law must therefore be rejected as clearly unfounded.

56. It follows from the foregoing that, independently of the question whether the appellant was indeed the holder of a prior right at the time of applying for the ‘gallileo.eu’ domain name, there is in any event no basis for the appellant’s claim that that name is entitled to particular protection, in order to argue that the Court of First Instance erred in holding that the contested decision was not of individual concern to it.

57. The three branches of the second plea in law must therefore be rejected as clearly unfounded.

The third plea, alleging a right to effective judicial protection

Arguments of the parties

58. The appellant claims that, by dismissing its action as inadmissible, the Court of First Instance acted in breach of the appellant’s right to effective judicial protection. The appellant was deprived of any legal remedy against the contested decision, whether before the national courts or before the Community judicature.

Findings of the Court

61. Since the appellant has failed to establish that the contested decision is of individual concern to it, there is no basis for its claim that the order under appeal undermines its right to effective judicial protection.

62. The third plea in law must therefore be rejected as clearly unfounded.

63. Since none of the pleas in law relied upon are well founded, the appeal must be dismissed.

Costs

64. Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings pursuant to Article 118 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has applied for costs to be awarded against Galileo Lebensmittel and the latter has been unsuccessful, it must be ordered to pay the costs.

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

1. The appeal is dismissed.

2. Galileo Lebensmittel GmbH & Co. KG is ordered to pay the costs.