CELEX: 62010CJ0426
Appeal
Signed original application lodged out of time
Regularisable defect

By its appeal, Bell & Ross BV (‘Bell & Ross’) seeks to have set aside the order of the General Court of the European Union
of 18 June 2010 in Case T‑51/10
Bell & Ross
v
OHIM
(‘the order under appeal’), by which that court dismissed as manifestly inadmissible, by reason of its lateness, the appellant’s
action against a decision of the Third Board of Appeal of OHIM of 27 October 2009 (case R 1267/2008‑3) relating to invalidity
proceedings between Klockgrossisten I Norden AB and Bell & Ross.

Legal context

Statute of the Court of Justice
The second paragraph of Article 21 of the Statute of the Court of Justice of the European Union provides, inter alia, that
an application must be accompanied, where appropriate, by the measure the annulment of which is sought. If that document is
not submitted with the application, ‘the Registrar shall ask the party concerned to produce [it] within a reasonable period,
but in that event the rights of the party shall not lapse even if such [a] document … [is] produced after the time‑limit for
bringing proceedings’.
Article 45 of the Statute of the Court of Justice is worded as follows:
‘Periods of grace based on considerations of distance shall be determined by the Rules of Procedure.
No right shall be prejudiced in consequence of the expiry of a time-limit if the party concerned proves the existence of unforeseeable
circumstances or of force majeure.’

Rules of Procedure of the General Court
Article 43 of the Rules of Procedure of the General Court provides:
‘1.       The original of every pleading must be signed by the party’s agent or lawyer.
The original, accompanied by all annexes referred to therein, shall be lodged together with five copies for the [General Court]
and a copy for every other party to the proceedings. Copies shall be certified by the party lodging them.
…
6.       [T]he date on which a copy of the signed original of a pleading … is received at the Registry by telefax or other technical
means of communication available to the [General Court] shall be deemed to be the date of lodgment for the purposes of compliance
with the time-limits for taking steps in proceedings, provided that the signed original of the pleading, accompanied by the
annexes and copies referred to in the second subparagraph of paragraph 1, is lodged at the Registry no later than ten days
thereafter. Article 102(2) shall not be applicable to this period of ten days.
…’
Article 44 of those Rules of Procedure states:
‘…
3.       The lawyer acting for a party must lodge at the Registry a certificate that he is authorised to practise before a Court of
a Member State or of another State which is a party to the EEA Agreement.
4.       The application shall be accompanied, where appropriate, by the documents specified in the second paragraph of Article 21
of the Statute of the Court of Justice.
5.       An application made by a legal person governed by private law shall be accompanied by:
(a)       the instrument or instruments constituting and regulating that legal person or a recent extract from the register of companies,
firms or associations or any other proof of its existence in law;
(b)      proof that the authority granted to the applicant’s lawyer has been properly conferred on him by someone authorised for the
purpose.
5a.       An application submitted … pursuant to an arbitration clause contained in a contract governed by public or private law, entered
into by the Community or on its behalf, shall be accompanied by a copy of the contract which contains that clause.
6.       If an application does not comply with the requirements set out in paragraphs 3 to 5 of this Article, the Registrar shall
prescribe a reasonable period within which the applicant is to comply with them whether by putting the application itself
in order or by producing any of the above-mentioned documents. If the applicant fails to put the application in order or to
produce the required documents within the time prescribed, the [General Court] shall decide whether the non-compliance with
these conditions renders the application formally inadmissible.’

Instructions to the Registrar
Article 7 of the Instructions to the Registrar of the Court of First Instance of the European Communities (now ‘the General
Court’) of 5 July 2007 (OJ 2007 L 232, p. 1; ‘the Instructions to the Registrar’) provides:
‘1.       The Registrar shall ensure that documents placed on the file are in conformity with the provisions of the Statute of the Court
of Justice, the Rules of Procedure, the Practice Directions to parties and these Instructions.
If necessary, he shall allow the parties a period of time for making good any formal irregularities in the documents lodged.
Service of a pleading shall be delayed in the event of non-compliance with the provisions of the Rules of Procedure referred
to in points 55 and 56 of the Practice Directions to parties.
Non-compliance with the provisions referred to in points 57 and 59 of the Practice Directions to parties shall delay, or may
delay, as the case may be, the service of a pleading.
…
3.       Without prejudice to Article 43(6) of the Rules of Procedure, concerning the lodgment of documents by fax or other technical
means of communication, the Registrar shall accept only documents bearing the original signature of the party’s lawyer or
agent.
…’

Practice Directions to Parties
The General Court’s Practice Directions to Parties, in the version of 5 July 2007 (OJ 2007 L 232, p. 7; ‘the Practice Directions
to Parties’), provide, in section B entitled ‘Lodgment of pleadings’, in particular:
‘…
7.       The original signature of the lawyer or agent acting for the party concerned must appear at the end of the pleading. Where
more than one representative is acting for the party concerned, the signature of one representative shall be sufficient.
…
9.      Each copy of every procedural document required to be produced by the parties pursuant to the second subparagraph of Article
43(1) of the Rules of Procedure must be initialled by the lawyer or agent of the party concerned and certified by him as a
true copy of the original document.’
Section F of the Practice Directions to Parties, entitled ‘Regularisation of pleadings’, states, at points 55 to 59, the circumstances
in which applications may be regularised.
According to point 55, a reasonable period is to be prescribed for the purposes of putting in order an application which does
not comply with the following requirements set out in Article 44(3) to (5) of the Rules of Procedure of the General Court:
‘(a)       production of the certificate of the lawyer’s authorisation to practise …;
(b)       proof of the existence in law of a legal person governed by private law …;
(c)      authority …;
(d)      proof that that authority has been properly conferred by someone authorised for the purpose …;
(e)      production of the contested measure (action for annulment) … .’
Point 56 of the Practice Directions to Parties provides:
‘In intellectual property cases in which the lawfulness of a decision of a Board of Appeal of OHIM is called into question,
an application which does not comply with the following requirements under Article 132 of the Rules of Procedure shall not
be served on the other party/parties, and a reasonable period shall be prescribed for the purposes of putting the application
in order:
(a)      the names and addresses of the parties to the proceedings before the Board of Appeal (first subparagraph of Article 132(1)
of the Rules of Procedure);
(b)      the date on which the decision of the Board of Appeal was notified (second subparagraph of Article 132(1) of the Rules of
Procedure);
(c)      the contested decision annexed (second subparagraph of Article 132(1) of the Rules of Procedure).’
Point 57 of those instructions provides, inter alia:
‘If an application does not comply with the following procedural rules, service of the application shall be delayed and a
reasonable period shall be prescribed for the purposes of putting the application in order:
…
(b)      original signature of the lawyer or agent at the end of the application (point 7 of the Practice Directions);
…
(o)      production of true certified copies of the application (second subparagraph of Article 43(1) of the Rules of Procedure; point
9 of the Practice Directions).’
Point 58 of the Practice Directions to Parties provides that, if the application does not comply with the procedural rules
relating to the address for service, to the certificate of authorisation to practise in respect of any additional lawyer,
to the summary of the arguments or to the translation into the language of the case of annexes, the application is to be served
and a reasonable period prescribed for the purposes of putting it in order.
Finally, point 59 lays down, as a principle or possibility, as the case may be, the need for regularisation where the number
of pages of the application exceeds the number prescribed by those practice directions, and provides for delaying service
in such a case.

The background to the case
By application received by fax at the Registry of the General Court on 22 January 2010, the appellant brought an action against
the decision of the Third Board of Appeal of OHIM of 27 October 2009. That application was received at the Registry before
the expiry, on 25 January 2010, of the time-limit for bringing proceedings.
By letter of 28 January 2010, the appellant indicated that it was transmitting to the Registry of the General Court the original
of the application sent by fax on 22 January 2010 and its annexes, as well as seven sets of true copies of the application
and the documents required by Article 44(3) to (5) of the Rules of Procedure of the General Court.
On 2 February 2010, the Registry contacted the appellant to bring to its attention the fact that the original of the application
could not be identified with certainty from among the documents lodged on 1 February 2010.
By letter of 3 February 2010, the appellant’s lawyer sent the copy of the application which remained on his file to the Registry,
explaining:
‘Since I am convinced that I previously sent you the original document with a set of photocopies, I cannot tell you whether
or not the attached document is the original. I am of the view that it is the copy that we kept in the file. I leave you to
examine it, and accordingly look forward to hearing your views.’
On 5 February 2010, the Registry of the General Court informed the appellant that it had concluded that that document was
an original, since the black ink smudged slightly after a damp cloth had been applied to the signature.
The Registry of the General Court entered the application in the register on 5 February 2010, that is, after the expiry of
the 10-day period which ran from the transmission of the application by fax, in accordance with Article 43(6) of the Rules
of Procedure of the General Court.
By letter of 12 February 2010, the appellant claimed an excusable error to justify the lodgment of the signed original application
after the expiry of the abovementioned 10-day period.
The General Court did not serve the application on OHIM.

The order under appeal
By the order under appeal, the General Court dismissed the application as manifestly inadmissible on the basis of Article
111 of its Rules of Procedure.
The General Court recalled that Article 43(6) of its Rules of Procedure provides for a 10-day period within which to lodge
the original of an application transmitted by fax. Taking account of this additional period, the original of the application
should have reached the Registry before the expiry of that period on 1 February 2010. Since the original of the application
was received on 5 February 2010, however, the application was lodged out of time, and there was no excusable error permitting
derogation from the time-limit for bringing proceedings, on the following grounds:
‘15      The application was received by fax at the Registry of the General Court on 22 January 2010, namely before expiry of the time-limit
for bringing an action.
16      However, pursuant to Article 43(6) of the Rules of Procedure, the date on which a copy of the signed original of a pleading
is received at the Registry of the Court by fax is to be deemed to be the date of lodgment for the purposes of compliance
with procedural time-limits only if the signed original of the pleading is lodged at the Registry no later than 10 days after
receipt of the fax.
17       In the present case, on 1 February 2010 the applicant lodged seven uncertified copies of the application at the Registry of
the Court. The signed original of the application was received at the Registry of the Court on 5 February 2010, that is to
say, after the expiry of the 10-day period provided for in Article 43(6) of the Rules of Procedure. Thus, in accordance with
that provision, only the date of lodgment of the signed original of the application, namely 5 February 2010, can be taken
into consideration for the purposes of the time-limit for bringing an action. Consequently, it must be concluded that the
application was lodged out of time [order of 28 April 2008 in Case T‑358/07
Publicare Marketing Communications
v
OHIM
, not published in the ECR, paragraph 13].
18      In its letter of 12 February 2010, the applicant asserted the existence of an excusable error to justify a derogation from
the time-limit at issue.
19      In that regard, it must be recalled that, concerning time-limits for initiating proceedings, the concept of excusable error
must be strictly construed and can concern only exceptional circumstances in which, in particular, the conduct of the institution
concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a
party acting in good faith and exercising all the diligence required of a normally experienced trader (Case T‑12/90
Bayer
v
Commission
[1991] ECR II‑219, paragraph 29; and order of 11 December 2006 in Case T‑392/05
MMT
v
Commission
, not published in the ECR, paragraph 36 and the case-law cited).
20      In the present case, the applicant asserts that, having used a service provider to make the required copies, it is able to
account for the failure to produce the signed original only by a mix-up, during the preparation of the file lodged at the
Registry of the Court, between the copies and the signed original of the application, returned by the service provider.
21      In addition, the applicant’s lawyer states that he usually signs in black ink, there being no rule prescribing the use of
an ink of a different colour.
22      Consequently, given the quality of the copies made, it was extremely difficult to distinguish the signed original from a copy,
as the original signature was the same colour as its copy.
23      The applicant also submits that, in requiring itself to try to smudge the ink of the signature by applying a damp cloth to
it in order to identify the signed original of the application, the Registry of the Court applied a standard of diligence
which cannot systematically be required of applicants.
24      The applicant adds finally that point 57(o) of the Practice Directions to Parties, which permits the regularisation, within
a reasonable period, of applications which do not comply with certain procedural rules, allows the production of the missing
true certified copies of the application, with the result that that point is likely to reduce applicants’ vigilance as to
the need to distinguish the signed original of the application from copies of it.
25      However, in the light of the foregoing, the applicant has not demonstrated the existence of exceptional circumstances, or
provided proof of the diligence required of a normally experienced trader within the meaning of the case-law recalled at paragraph
19 above.
26      Indeed the applicant itself admits that it was the source of a mix-up during the preparation of the file to be sent to the
Registry of the Court.
27      Furthermore, it does not appear that the difficulty in distinguishing the signed original of the application from the copies
could not be overcome by recourse to any method allowing the signed original of the application to be treated separately,
in such a way as to avoid its being lodged at the Registry of the Court after the expiry of the 10-day period provided for
in Article 43(6) of the Rules of Procedure.
28      Moreover, it must be noted that, first, failure to lodge the signed original of the application at the Registry of the Court
within that period is not one of the cases for which regularisation of applications is provided at points 55 to 59 of the
Practice Directions to Parties and, secondly, point 57(o) of those directions allows, in the interest of applicants, deferral
of the Court’s assessment of the conditions of admissibility of the application prescribed in the second subparagraph of Article
43(1) of the Rules of Procedure, which require the signed original of the application to be distinguished from copies. It
follows that the possibility of regularisation allowed by point 57(o) could not lead to applicants reducing their vigilance
with respect to the need to distinguish the signed original of the application from copies.
29      In any event, it was for the applicant to distinguish the signed original of the application from the copies.
30      It follows from all of the foregoing that the application is out of time and must be dismissed as manifestly inadmissible,
and there is no need to serve it on OHIM.’

Forms of order sought by the parties
By its appeal, Bell & Ross claims that the Court should:
–        set aside the order under appeal;
–        declare the action for annulment in Case T‑51/10 admissible and, consequently, refer the case back to the General Court for
decision on the merits; and
–        order OHIM to pay the costs of the appeal and the first-instance proceedings.
OHIM contends that the Court should:
–        dismiss the appeal; and
–        order the appellant to pay the costs.

Consideration of the appeal
In support of its appeal, the appellant puts forward six pleas in law.

The first plea, alleging breach of Article 111 of the Rules of Procedure of the General Court
The appellant states that the Advocate General was not heard, in breach of Article 111 of the Rules of Procedure of the General
Court.
In response to that plea, it must be noted that, although Article 111 of the Rules of Procedure of the General Court, on which
the order under appeal is based, requires the Advocate General to be heard, Article 2(2) of those rules of procedure states
that references to the Advocate General ‘apply only where a Judge has been designated as Advocate General’. In the present
case, however, no judge was designated as Advocate General in the proceedings before the General Court.
This plea must therefore be dismissed as unfounded.

The second plea, alleging breach of Article 43 of the Rules of Procedure of the General Court
Arguments of the parties
The appellant complains that the General Court wrongly interpreted Article 43 of its Rules of Procedure in considering that
the application was lodged out of time. It observes that, unlike the circumstances giving rise to the order in
PubliCare Marketing Communications
v
OHIM
, referred to at paragraph 17 of the order under appeal, the Registry received seven copies of the application before the
expiry of the time-limit for bringing proceedings. The appellant argues that the relevant issue is that of identifying the
original application. Article 43 does not specify detailed rules for the signing of the application (colour, type of pen,
etc). The damp cloth test to which the General Court had recourse is questionable, as some inks do not smudge. In the order
under appeal, the General Court, without referring to the method which allowed it to distinguish the original from the copy,
therefore imposed conditions additional to those set out in Article 43 of its Rules of Procedure.
OHIM submits that this plea is clearly unfounded.
Findings of the Court
Contrary to the appellant’s claim, the order under appeal does not impose any particular requirement in terms of detailed
rules for the signing of an application, or the means by which the original nature of the signature that must appear on it
may be evidenced.
Moreover, it is not disputed that the version of the application received at the Registry after the expiry of the time-limit
for bringing proceedings bore the lawyer’s original signature.
This plea is therefore unfounded.

The third plea, alleging non-compliance with Article 7(1) of the Instructions to the Registrar and point 57(b) of the Practice
Directions to Parties
Arguments of the parties
The appellant submits that the General Court erred in law by failing to provide an opportunity to put the application in order
pursuant to Article 7(1) of the Instructions to the Registrar and point 57(b) of the Practice Directions to Parties.
OHIM argues that this plea is not admissible as the appellant did not invoke breach of point 57(b) of the Practice Directions
to Parties. As to the substance, OHIM submits that the plea is unfounded.
Findings of the Court
Concerning the admissibility of this plea, it must be noted that the order under appeal was made on the basis of Article 111
of the Rules of Procedure of the General Court, which does not require that the parties be heard before the adoption of such
a decision. In those circumstances, the appellant cannot be criticised for having omitted to raise, in the application, arguments
relating to the conditions for its lodgment. The purpose of the third plea is therefore not to modify the subject-matter of
the proceedings before the General Court. It is, accordingly, admissible.
As to the substance, it must be noted that, at paragraph 17 of the order under appeal, the General Court observed that the
signed original of the application was received at the Registry of the General Court out of time. It observed, further, at
paragraph 28 of that order, that failure to lodge the signed original of the application within the time-limits is not one
of the cases for which regularisation of applications is provided at points 55 to 59 of the Practice Directions to Parties.
It is not disputed that the original of the application reached the Registry of the General Court only after the expiry of
the time-limit for instituting proceedings.
Article 43(1) of the Rules of Procedure of the General Court requires the lodgment of the original of every pleading, signed
by the party’s lawyer.
Under Article 43(6) of the Rules of Procedure, the date on which a copy of the signed original of a pleading is received at
the Registry of the General Court by fax is to be deemed to be the date of lodgment for the purposes of compliance with the
time-limits for taking steps in proceedings only if the signed original of the pleading is lodged at the Registry no later
than 10 days after receipt of that fax.
The failure to submit the signed original of the application is not one of the defects capable of being rectified under Article
44(6) of the Rules of Procedure of the General Court. Thus, an application which is not signed by a lawyer is affected by
a defect which is such as to entail the inadmissibility of the action upon the expiry of the procedural time-limits, and cannot
be put in order (see, to that effect, order in Case C‑163/07 P
Diy-Mar Insaat Sanayi ve Ticaret and Akar
v
Commission
[2007] ECR I‑10125, paragraphs 25 and 26).
It should be noted that the strict application of those procedural rules serves the requirements of legal certainty and the
need to avoid any discrimination or arbitrary treatment in the administration of justice. In accordance with the second paragraph
of Article 45 of the Statute of the Court of Justice, no derogation from the procedural time-limits may be made save where
the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to
force majeure
(see, to that effect, inter alia, Case 42/85
Cockerill-Sambre
v
Commission
[1985] ECR 3749, paragraph 10; and order in Case C‑242/07 P
Belgium
v
Commission
[2007] ECR I‑9757, paragraph 16).
It follows that this plea is unfounded.

The fourth and fifth pleas, alleging excusable error or unforeseeable circumstances
Arguments of the parties
The appellant pleads an excusable error. It explains that, given the considerable volume of copies required (2 651 pages in
total), it had to turn to an external service provider. The latter forgot to include one document in the package sent to the
General Court, an error which the lawyer was able to put right in time. The confusion between the original and the copies
stems from external and exceptional circumstances attributable to an omission on the part of the service provider. The appellant
maintains that it acted in good faith and diligently. All the documents submitted to the Registry were signed and lodged within
the time-limits. The appellant also submits that the confusion between the original and the copies was the result of abnormal
circumstances beyond its control and that unforeseeable circumstances are therefore made out in the form of the service provider’s
confusion of the original and the copies and its delivery of an incomplete annex. The appellant used all possible means to
remedy those problems.
OHIM submits that the concept of excusable error concerns only exceptional circumstances in which, in particular, the conduct
of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion
in the mind of a party. The distinction between an original and a copy is of considerable importance. The appellant should
have clearly distinguished the original from the copies, for example by having the original signed with a blue ink pen. Had
the appellant acted more quickly, it would have been possible to put the application in order within the time-limit for instituting
proceedings. In OHIM’s submission, the confusion between the original and the copies is attributable to the appellant.
Findings of the Court
The General Court was fully entitled to state, at paragraph 19 of the order under appeal, that, concerning time-limits for
bringing proceedings, the concept of excusable error must be strictly construed and can concern only exceptional circumstances
in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as
to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required
of a normally experienced trader.
The concept of unforeseeable circumstances contains an objective element relating to abnormal circumstances unconnected with
the trader in question and a subjective element involving the obligation, on his part, to guard against the consequences of
the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the trader must pay
close attention to the course of the procedure set in motion and, in particular, demonstrate diligence in order to comply
with the prescribed time-limits (see, to that effect Case C‑195/91 P
Bayer
v
Commission
[1994] ECR I‑5619, paragraph 32; and order in
Belgium
v
Commission
, paragraph 17).
The appellant contends that the confusion between the original and the copies of the application is attributable to the intervention
of a third party, a company to which it entrusted the task of making the high number of copies required for the lodgment of
the application initiating proceedings.
As the Advocate General emphasised at point 89 of her Opinion, the responsibility for preparing, monitoring and checking procedural
documents to be lodged at the Registry rests with the lawyer of the party concerned. Accordingly, the fact that the confusion
between the original and the copies of the application is attributable to the intervention of a third party, a company instructed
by the appellant to make copies, and the other circumstances put forward by the appellant cannot be considered exceptional
circumstances or abnormal events unconnected to the appellant entitling it to rely on excusable error or unforeseeable circumstances.
The fourth and fifth pleas are therefore unfounded.

The sixth plea, alleging breach of the principles of proportionality and the protection of legitimate expectations
Arguments of the parties
The appellant claims that, in declaring the action inadmissible even though seven copies of the application, all bearing the
lawyer’s signature, had been received within the time-limits, the General Court infringed the principles of proportionality
and the protection of legitimate expectations. Both the Instructions to the Registrar (Article 7) and the Practice Directions
to Parties (point 57(b)) allow the application to be put in order so as to bear the lawyer’s original signature.
OHIM notes that the right to effective judicial protection is not affected by the strict application of procedural time-limits
and other essential procedural requirements. Inadmissibility due to the late lodgement of the application is neither contrary
to that right nor disproportionate. Point 57(b) of the Practice Directions to Parties is, by its very nature, not capable
of giving rise to a legitimate expectation as to the regularisation of an application lacking an original signature and can
by no means derogate from the clear requirement imposed by Article 43(6) of the Rules of Procedure of the General Court.
Findings of the Court
As the original of the application was not submitted within the prescribed time‑limit, the appellant’s action was inadmissible.
This conclusion is not affected by the appellant’s reliance on the principle of proportionality. Indeed, as already set out
at paragraph 43 of the present judgment, the strict application of procedural rules serves the requirements of legal certainty
and the need to avoid any discrimination or arbitrary treatment in the administration of justice.
With regard to the alleged breach of the principle of the protection of legitimate expectations, it should be recalled that
the Court has repeatedly held that the right to rely on that principle extends to any person with regard to whom an institution
of the European Union has given rise to justified hopes. However, a person may not plead infringement of the principle unless
he has been given precise assurances by the administration (judgment of 24 November 2005 in Case C‑506/03
Germany
v
Commission
, paragraph 58). Similarly, if a prudent and discriminating economic operator could have foreseen the adoption of a Community
measure likely to affect his interests, he cannot plead that principle if the measure is adopted (Case 265/85
Van den Bergh en Jurgens and Van Dijk Food Products
(Lopik) v
EEC
[1987] ECR 1155, paragraph 44).
In the present case, it is sufficient to note that the appellant has not put forward, in support of its appeal, any matter
justifying a conclusion that the General Court gave it precise assurances regarding its application’s compliance with procedural
requirements.
Therefore, the sixth plea is unfounded.
It follows from all of the foregoing considerations that the appeal must be dismissed in its entirety as unfounded.

Costs
Under Article 69(2) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article
118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s
pleadings.
As OHIM sought an order for costs against the appellant, and the latter has been unsuccessful, the appellant must be ordered
to pay the costs.
On those grounds, the Court (Second Chamber) hereby:
1.
Dismisses the appeal;
2.
Orders Bell & Ross BV to pay the costs.
[Signatures]
*
Language of the case: French.