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1. The complainant, a Polish citizen, noted that the website of the Office for Harmonization in the Internal Market (OHIM) was not available in Polish. It was available only in English, French, German, Italian and Spanish.
2. On 25 May 2010, he sent an e-mail to OHIM in Polish. He pointed out that the OHIM website was not available in Polish and asked OHIM to rectify this situation, which, in his view, was unlawful.
3. On 2 June 2010, OHIM replied to the complainant in English. It stated that it can only reply to e-mails in one of its five working languages, namely, English, German, French, Spanish, and Italian. It asked the complainant to submit further queries in one of these languages and also stated that it is not in a position to make its website available in all official languages of the EU. It advised the complainant to use a specific e-mail address (of the OHIM Complaints Unit) if "he wished to file an official complaint" about OHIM's choice of language versions of its website.
4. Given that OHIM provided the above information in English, the complainant did not take any action. On 9 November 2010, he approached the Ombudsman.
5. The Ombudsman opened an inquiry into the following allegations and claims:
(1) OHIM replied in English to the complainant's letter in Polish.
(2) OHIM's limited choice of languages for its website is unlawful.
OHIM should make its website available in all EU languages.
6. In its opinion, OHIM took a position regarding the possible unequal treatment caused by its practice of using a limited number of language versions of its website. The complainant also referred to this issue in his observations. The Ombudsman thus included this matter in his assessment.
7. The complaint was submitted on 9 November 2010. The Ombudsman forwarded it to OHIM on 15 December 2010, with a request for an opinion by 31 March 2011. OHIM sent its opinion on 18 February 2011 and a translation into Polish on 8 March 2011, which was forwarded to the complainant with an invitation to make observations. The complainant sent his observations on 30 March 2011. On 12 July 2011, the Ombudsman made a proposal for a friendly solution and asked OHIM to reply to that proposal before 31 August 2011. On 30 October 2011, OHIM replied in English. The translation of OHIM's reply into Polish was sent to the complainant with an invitation to submit observations by 30 November 2011. He did not submit observations.
8. The complainant pointed out that Polish is one of official languages of the EU. Therefore, OHIM should have replied to his email addressed to it in Polish by using that same language.
9. In its opinion, OHIM stated that, when the complainant sent his above email, OHIM's practice was based on Article 21 of the EC Treaty[1]. This gave citizens the right to write to any of the institutions and bodies using one of EU official languages, and to receive a reply in the same language. It did not, however, apply to the EU offices and agencies. There was thus no legal obligation for OHIM to accept written queries in any official EU language and to reply in the same language. The linguistic regime applicable to OHIM is laid down in the OHIM Basic Regulation, that is, Council Regulation (EC) 207/2009 of 26 February 2009 on the Community trade mark[2] (the 'OHIM Regulation'). The OHIM Regulation provides that OHIM should use its five working languages (English, French, German, Italian and Spanish).
10. Even if Article 2(2)f of the Treaty of Lisbon introduced a change in relation to the above Article 21 EC ("Through the Treaty … the words 'institutions or bodies' and 'institutions and bodies' shall be replaced by 'institutions, bodies, offices or agencies', except in the first paragraph of Article 193.")[3], the fact remains that no reference is made to the agencies and offices in Article 24 TFEU of the consolidated version of the Treaties published in the Official Journal[4]. OHIM concluded that "[l]egally speaking, the view of the Office is that its legal obligations in this regard are unclear at present."
11. After a careful discussion and analysis, and in light of what OHIM perceived to be the likely will of the legislator, OHIM decided to change its practice in this regard following the Ombudsman's opening of his inquiry. From now on, OHIM stated that it will accept written queries from any citizen of the Union, in any of the languages mentioned in Article 55(1) TEU, and will provide an answer in the same language. The implementation of this practice will need around two months to be fully operational.
12. In his observations, the complainant was fully satisfied with OHIM's above change of policy.
13. The Ombudsman considered that the first allegation has been settled.
14. He applauded OHIM's decision to reply to all correspondence addressed to it in an official language of the EU, by using the same language. This is a good administrative practice.
15. In his original complaint, the complainant merely argued that he was unlawfully deprived of access to the information on the OHIM website because it was not available in Polish.
16. In its opinion, OHIM stated that its practice concerning the language versions of its website is not governed by Article 24 TFEU, but rather by the case-law. It referred to the judgment in Kik[5], involving OHIM, but also the judgment in joint cases T-156/07 and T-232/07 Spain v Commission of 13 September 2010, concerning the languages in which EPSO's notices of competition are published[6]. OHIM stated that the judgment in Kik "supported" OHIM's practice of making its website available in its five working languages only. The Court held that the rules on languages laid down in Regulation No 1 of the Council of 15 April 1958 determining the languages to be used by the European Economic Community[7] do no amount to principles of EU law, nor is there a specific EU law principle of equality between official languages of the EU which cannot legitimately be derogated from.
17. In light of the judgment in Kik, OHIM took the view that the language versions used on its website should be considered in the light of the content of the information provided thereon. OHIM further argued that, in its judgment in Kik, the Court of Justice made a distinction between OHIM's documents by referring to 'procedural documents' and 'written communications'. The 'procedural documents' must be issued by OHIM in the language chosen by the applicant when filing the application for an EU trade mark. This may be in any of the EU official languages, while the 'written communications' may be drafted in any of OHIM's five working languages. According to OHIM, the content of its website consists merely of written communications and clearly does not concern procedural documents conferring rights. OHIM referred further to paragraph 92 of the judgment in Kik, in which the Court of Justice acknowledged OHIM's difficult task of achieving the necessary balance between the interests of economic operators and the public interest in terms of costs of proceedings[8].
18. OHIM concluded that its limited choice of languages for its website is justified by its need to (i) keep the costs of translations to a necessary minimum; (ii) ensure that the management of the OHIM website is as smooth and cost effective as possible, and (iii) make general information available to the public as quickly as possible. In addition, it is justified by OHIM's legislative basis, namely, Article 119(2) of the OHIM Regulation[9].
19. Moreover, as a result of its change in language policy regarding its replies to correspondence, any difference in treatment that may result from the limited choice of languages on the OHIM website will be "negligible in scope".
20. In his observations, the complainant clarified his allegation. He first took the view that the judgment in Kik relates to the use of languages in OHIM's proceedings, while his complaint concerned the use of languages on OHIM's website.
21. He agreed with OHIM's view that the languages used on the website should be considered in relation to the content of the information provided. He pointed out that the OHIM website contains important information concerning its activities. Therefore applicants for trade marks and design/economic operators who only speak Polish are in a worse position than those who speak one of OHIM's five working languages. Knowledge of the content of the OHIM website (for instance contact data or how to submit an application) would be very useful indeed for such parties. The reduced access to such information for those who do not speak one of OHIM's working languages limits free competition in the EU and is discriminatory.
22. At the outset, the Ombudsman noted that, in its Mission statement[10], OHIM declares that it must be an accessible, user-friendly organisation. However, the OHIM homepage does not welcome all EU citizens using their respective languages, nor does it explain OHIM's language policy in all official EU languages.
23. Moreover, having visited the OHIM website, the Ombudsman noted that there is a section on legal texts and case-law relating to trade marks and design, to fees and payments for applications and, most importantly, section "Forms/filing" under which applicants can apply for a Community trade mark online and download application forms. The section "Forms/filing" also includes instructions on how to do so. However, only the applications forms are available in all EU official languages[11]. The rest of the information on how to fill/ submit an application form, as well as information on OHIM's activity and its legal basis, appeared to be provided in English, French, German, Italian and Spanish.
24. Against the above background, the Ombudsman recalled that the EU administration must ensure that it acts in accordance with the applicable legal rules. The Ombudsman was not, however, entirely convinced by OHIM's view that the OHIM Regulation (Article 119(2)), in combination with the judgment in Kik, constitutes the legal basis for its practice of using only English, French, Spanish, German and Italian on its website.
25. Article 119(2) of the OHIM Regulation provides indeed that "the languages of the Office shall be English, French, German, Italian and Spanish". However, in the legal background of its judgment in Kik, the Court of Justice recalled that Article 119 (at the time of the judgment, Article 115) of the OHIM Regulation governs the use of languages in proceedings before the Office[12]. The Ombudsman did not see why the Court's view should be interpreted broadly so as also to concern the information provided by OHIM on its website. As described in paragraph 23 above, this information concerns potential proceedings and not proceedings which are underway.
26. For the same reason, the Ombudsman did not consider that OHIM's analogy to the 'written communications', as defined by the Court in Kik, may indeed be useful to support the language practice of its website. In Kik, the Court referred to 'written communications' in the context of the ongoing proceedings before OHIM concerning an application for an EU trade mark. In paragraph 47 of Kik, the Court explained that 'written communications' may be letters with which OHIM sends 'procedural documents', or by which it communicates information to applicants. In paragraph 45, it held that the option of using a second language for 'written communications' is an exception to the principle that the language of the proceedings must be used (which may be any of the EU official languages) and that the term 'written communications' must therefore be interpreted strictly.
27. The Ombudsman concluded that OHIM's practice of using English, French, German, Italian and Spanish on its website is not supported by the applicable legal rules indicated in the opinion.
28. Furthermore, the Ombudsman could not exclude that OHIM's apparently neutral practice of using only English, French, German, Spanish and Italian on its website would put legal and natural persons[13] coming from Member States other than Italy, Spain, Germany, the UK or France at a disadvantage compared to persons from the latter countries. In fact, those who would like to submit their applications for trade marks, but do not understand any of the OHIM website's five languages, can indeed experience more difficulties in obtaining access to, and making use of, the information provided by OHIM on its website. The small and medium businesses in particular may be affected also in financial terms. They may need to pay, in addition to the processing fees for their applications, for a translation of the OHIM website's instructions on how to file such applications[14].
29. OHIM's new policy concerning the use of languages in its correspondence with citizens, albeit praiseworthy, could not, in the Ombudsman's view, diminish the above negative consequences. The scope of this policy is reasonably limited to those who have already decided to enter into direct contact with OHIM. Normally, such contacts are established after the interested parties have visited the website. It is therefore important that their first visit be facilitated by the language versions available.
30. Unequal treatment is permitted where there is a reasonable and objective justification for it. In paragraph 82 of the judgment in Kik, to which OHIM rightly referred in its opinion, the Court of Justice held that Treaty references concerning the use of languages cannot be regarded as evidencing a general principle of Union law that confers on every citizen a right to have, in all circumstances, a version of anything that might affect his interests drawn up in his language.[15] It follows that there may be circumstances in which that right cannot be applied. They should, however, be limited and justified on each occasion[16].
31. In its opinion, OHIM justified the limited number of language versions of its website by referring to possible costs, delays in publication and problems with the management of its website.
32. The Ombudsman admitted that now that the number of official languages in the EU has increased to 23, there may indeed be some practical or financial reasons justifying that, in the short term, the entire content of EU websites is not always available in all EU languages. This is particularly true regarding the information which, by its nature, needs constantly to be updated. However, the essential information provided on the OHIM website, as outlined in paragraph 23 above, does not appear to be subject to frequent changes. Moreover, administrative convenience is not a valid argument for an EU administration which is well equipped in terms of technical and human resources.
33. In light of the above, the Ombudsman considered that OHIM's reasons are insufficient to justify not making some of the most relevant pages on its website available in all EU languages. The Ombudsman recalled his constant position[17] that good administration requires that, as far as possible, the institutions, bodies, offices and agencies of the EU should provide information to citizens in their own languages. The Ombudsman therefore made a corresponding proposal for a friendly solution, in accordance with Article 3(5) of the Statute of the European Ombudsman. The proposal read as follows:
"In response to the complainant's first allegation, the Ombudsman applauds the change in OHIM's language policy regarding its correspondence with citizens. In the same positive spirit, OHIM could also make the homepage of its website available in all EU languages and explain its language policy thereon. In addition, OHIM could make the instructions on applications and FAQs on its website available in all EU languages."
34. In its reply to the Ombudsman's proposal for a friendly solution, OHIM stated that, at the beginning of October 2011, it launched a project for a radical redesign of its website with the aim of providing users with (a) "a full electronic experience" covering all OHIM processes, as well as (b) additional information on its services in a simple and user-friendly manner. This project is expected to be completed by the end of October 2012.
35. OHIM had asked the Ombudsman for an extension of the original deadline to reply to his friendly solution proposal because it needed time to discuss internally, and incorporate in the redesign project, a number of measures which are in line with the Ombudsman's recommendation on the use of languages in the OHIM website and on what is expected from the EU administration in order to facilitate users' access to its online information.
36. OHIM further announced that, following the Ombudsman's proposal and once the above-mentioned redesign project will have been completed, its website will be made available in all EU languages.
37. In addition, the homepage will contain a section dedicated to users who are not experts in intellectual property matters in order to guide them, by means of complete but simple solutions, in their attempt to become familiar with OHIM's processes and working practices. It will also include the information which is now explained in the FAQs section.
38. Moreover, the website will clearly indicate which sections or documents are available in all EU languages and which, on the contrary, may only be consulted in OHIM's five official languages.
39. As regards the instructions for completing applications, OHIM stated that they are already available in all EU languages. It explained that, by clicking on the section File a Community trade mark on the OHIM website, users are directed to a page where they can select one of the 23[18] EU languages (Choose form language and apply online). By selecting a language and clicking on the Apply Online icon, users are directed to a page in the chosen language, which includes various fields that are to be filled in. By clicking on the blue question mark icon on the right side of each field, users are directed to the detailed instructions for filling the application (Help-E-filing for the Community Trade Mark). Moreover, users already have access to both a general brochure on OHIM and to the Intellectual Property Cooperation and Convergence newsletter, which are translated into all the EU languages.
40. OHIM concluded by expressing its hope that these efforts will (a) be interpreted as steps in the right direction, which put in place a website that reinforces transparency and improves predictability, harmonisation and convergence for the benefit of its users and (b) allow the Ombudsman to find a friendly solution to the present complaint.
41. The Ombudsman takes the view that a friendly solution has been achieved. He applauds the change in OHIM's language policy regarding its correspondence with citizens and its website.
On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:
A friendly solution has been achieved.
The complainant and OHIM will be informed of this decision.
P. Nikiforos Diamandouros
Done in Strasbourg on 13 December 2011
[1] Article 21 EC: "Every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 7 in one of the languages mentioned in Article 314 and have an answer in the same language."
[2] OJ 2009 L 78 p.1.
[3] OJ 2007 C 306.
[4] OJ 2010 C 83.
[5] Case T-120/99 Kik v OHIM [2001] ECR II-2235, paragraph 64. The Court of Justice upheld this judgment on appeal: Case C-361/01, Kik v OHIM [2003] ECR-I-8283, paragraph 83.
[6] Joint Cases T-156/07 and T-232/07 Spain v Commission, judgment of 13 September 2010.
[7] OJ, English Special Edition (I) (1952.-1958), p. 59.
[8] "It follows from all of those facts that the language regime of a body such as the Office is the result of a difficult process which seeks to achieve the necessary balance between the interests of economic operators and the public interest in terms of the cost of proceedings, but also between the interests of applicants for Community trade marks and those of other economic operators in regard to access to translations of documents which confer rights, or proceedings involving more than one economic operator, such as opposition, revocation and invalidity proceedings."
[9] Article 119(2) provides: "The languages of the Office shall be English, French, German, Italian and Spanish."
[10] www.oami.europa.eu/ows/rw/pages/OHIM/institutional
[11] Article 119 (1) of the OHIM Regulation provides that "The application for a Community trade mark shall be filed in one of the official languages of the European Community."
[12] Point 5: "The Office was established by Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1). The use of languages in proceedings before the Office is governed by Article 115 of that regulation, which is worded as follows:
1. The application for a Community trade mark shall be filed in one of the official languages of the European Community.
2. The languages of the Office shall be English, French, German, Italian and Spanish.
3. The applicant must indicate a second language which shall be a language of the Office the use of which he accepts as a possible language of proceedings for opposition, revocation or invalidity proceedings.
If the application was filed in a language which is not one of the languages of the Office, the Office shall arrange to have the application, as described in Article 26(1), translated into the language indicated by the applicant."
[13] Article 5 of the OHIM Regulation: "Any natural or legal person, including authorities established under public law, may be the proprietor of a Community trade mark."
[14] Article 18 TFEC states that "[w]ithin the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited…" As held by the Court (Case C-224/00 Commission v Italy [2002] ECR I-2965, paragraph 14), Article 18 TFEU (former Article 12 TEC) constitutes a specific expression of the general principle of equality. Moreover, the case-law of the EU Courts establishes that the principle of equal treatment (or non-discrimination) is breached when two categories of person whose legal and factual circumstances disclose no essential difference are treated differently (for instance, Case T-211/95 Petit-Laurent v Commission [1997] ECR-SC I-A-21 and II-57, paragraph 56; Case C-71/07 Campoli v Commission [2008] ECR-I-5887, paragraph 50).
[15] The General Court reiterated the above view in its most recent judgments (dated 3 February 2011 and 13 September 2010) concerning EPSO's publication, on its website and in the Official Journal, of notices of competition in three selected EU languages (English, French and German).
These cases include:
A) Case T-205/07 Italy v Commission, jugement of 3 February 2011, not yet published in the ECR, paragraph 50 (in the original French): "…ainsi qu’il a déjà été jugé par la Cour, les nombreuses références dans le traité CE à l’emploi des langues ne peuvent être considérées comme étant la manifestation d’un principe général de droit communautaire assurant à chaque citoyen le droit à ce que tout ce qui serait susceptible d’affecter ses intérêts soit rédigé dans sa langue en toutes circonstances"; and
B) Joint Cases RT-156/07 and T-232/07 Spain v Commission, judgement of 13 September 2010, not yet published in the ECR, paragraphs 52-53 (in the original French): "52. En premier lieu, il convient de relever qu’aucune disposition ni aucun principe de droit communautaire n’impose que des avis de concours, tels que ceux en cause en l’espèce, soient systématiquement publiés au Journal officiel dans toutes les langues officielles (voir, par analogie, arrêt Italie/Commission, précité, point 115). 53. Il est vrai que les postes à pourvoir visés par les avis de concours litigieux sont susceptibles d’intéresser potentiellement des candidats en provenance de tout État membre. Toutefois, ainsi qu’il a déjà été jugé par la Cour, les nombreuses références dans le traité CE à l’emploi des langues, dont, notamment, l’article 290 CE, invoqué par le Royaume d’Espagne et la République de Lituanie, ne peuvent être considérées comme étant la manifestation d’un principe général de droit communautaire assurant à chaque citoyen le droit à ce que tout ce qui serait susceptible d’affecter ses intérêts soit rédigé dans sa langue en toutes circonstances …"
[16] Opinion of Advocate-General Poiares Maduro in Case C-160/03, paragraph 38.
[17] See the Ombudsman's decisions in cases 939/99/ME, 1146/2001/IP and his special report to the European Parliament following the draft recommendation to the Council of the European Union in case 1487/2005/GG, all available at www.ombudsman.europa.eu.
[18] The Ombudsman understands that OHIM wished to refer to the EU 23 languages and not to the 22 EU languages as OHIM put in the reply.
