# 62020CO0174

ORDER OF THE COURT (Eighth Chamber)

3 September 2020 (
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  )

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(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Appeal lodged out of time – Appeal manifestly inadmissible)

In Case C‐174/20 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 24 April 2020,

STADA Arzneimittel AG, established in Bad Vilbel (Germany), represented by J.‐C. Plate and R. Kaase, Rechtsanwälte,

STADA Arzneimittel AG

appellant,

the other party to the proceedings being:

European Union Intellectual Property Office (EUIPO),

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

THE COURT (Eighth Chamber),

composed of L.S. Rossi, President of the Chamber, J. Malenovský (Rapporteur) and N. Wahl, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

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

makes the following

Order

Order

| 1 | By its appeal, STADA Arzneimittel AG seeks to have set aside the judgment of the General Court of the European Union of 11 February 2020, Stada Arzneimittel v EUIPO (ViruProtect) (T‐487/18, not published, the judgment under appeal, EU:T:2020:44), by which the General Court dismissed its action seeking annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 June 2018 (Case R 1886/2017-5), relating to an application for registration of the word sign ‘ViruProtect’ as an EU trade mark (‘the contested decision’). |
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1

By its appeal, STADA Arzneimittel AG seeks to have set aside the judgment of the General Court of the European Union of 11 February 2020, Stada Arzneimittel v EUIPO (ViruProtect) (T‐487/18, not published, the judgment under appeal, EU:T:2020:44), by which the General Court dismissed its action seeking annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 June 2018 (Case R 1886/2017-5), relating to an application for registration of the word sign ‘ViruProtect’ as an EU trade mark (‘the contested decision’).

Legal context

Legal context

The Statute of the Court of Justice of the European Union

The Statute of the Court of Justice of the European Union

| 2 | Article 45 of the Statute of the Court of Justice of the European Union provides:
  ‘Periods of grace based on considerations of distance shall be determined by the Rules of Procedure [of the Court].
  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.’ |
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2

Article 45 of the Statute of the Court of Justice of the European Union provides:

‘Periods of grace based on considerations of distance shall be determined by the Rules of Procedure [of the Court].

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.’

force majeure

| 3 | The first paragraph of Article 56 of that statute provides:
  ‘An appeal may be brought before the [Court], within two months of the notification of the decision appealed against, against final decisions of the General Court ...’ |
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3

The first paragraph of Article 56 of that statute provides:

‘An appeal may be brought before the [Court], within two months of the notification of the decision appealed against, against final decisions of the General Court ...’

The Rules of Procedure

The Rules of Procedure

| 4 | Article 49 of the Rules of Procedure, entitled ‘Calculation of time limits’, is worded as follows:
  ‘1.   Any procedural time limit prescribed by the Treaties, the Statute [of the Court of Justice of the European Union] or these Rules shall be calculated as follows:





  (a) | where a time limit expressed in days, weeks, months or years is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place shall not be counted as falling within the time limit in question; |
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4

Article 49 of the Rules of Procedure, entitled ‘Calculation of time limits’, is worded as follows:

‘1.   Any procedural time limit prescribed by the Treaties, the Statute [of the Court of Justice of the European Union] or these Rules shall be calculated as follows:

(a)

where a time limit expressed in days, weeks, months or years is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place shall not be counted as falling within the time limit in question;

| (b) | a time limit expressed in weeks, months or years shall end with the expiry of whichever day in the last week, month or year is the same day of the week, or falls on the same date, as the day during which the event or action from which the time limit is to be calculated occurred or took place. ... |
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(b)

a time limit expressed in weeks, months or years shall end with the expiry of whichever day in the last week, month or year is the same day of the week, or falls on the same date, as the day during which the event or action from which the time limit is to be calculated occurred or took place. ...

...

| (d) | time limits shall include Saturdays, Sundays and the official holidays referred to in Article 24(6) of these Rules; |
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(d)

time limits shall include Saturdays, Sundays and the official holidays referred to in Article 24(6) of these Rules;

| (e) | time limits shall not be suspended during the judicial vacations. |
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(e)

time limits shall not be suspended during the judicial vacations.

2.   If the time limit would otherwise end on a Saturday, Sunday or an official holiday, it shall be extended until the end of the first subsequent working day.’

| 5 | Pursuant to Article 51 of the Rules of Procedure, entitled ‘Extension on account of distance’:
  ‘The procedural time limits shall be extended on account of distance by a single period of 10 days.’ |
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5

Pursuant to Article 51 of the Rules of Procedure, entitled ‘Extension on account of distance’:

‘The procedural time limits shall be extended on account of distance by a single period of 10 days.’

Background to the dispute

Background to the dispute

| 6 | The background to the dispute is set out in paragraphs 1 to 7 of the judgment under appeal and may be summarised as follows. |
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6

The background to the dispute is set out in paragraphs 1 to 7 of the judgment under appeal and may be summarised as follows.

| 7 | On 31 January 2017, STADA Arzneimittel filed an application with EUIPO for registration of the word sign ‘ViruProtect’ as an EU trade mark. |
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7

On 31 January 2017, STADA Arzneimittel filed an application with EUIPO for registration of the word sign ‘ViruProtect’ as an EU trade mark.

| 8 | By decision of 7 July 2017, the examiner refused that application on the basis of Article 7(1)(b) and (c) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the [European Union trade mark] (OJ 2009 L 78, p. 1). |
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8

By decision of 7 July 2017, the examiner refused that application on the basis of Article 7(1)(b) and (c) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the [European Union trade mark] (OJ 2009 L 78, p. 1).

| 9 | After the present appellant had filed a notice of appeal with EUIPO against that decision on 28 August 2017, the Fifth Board of Appeal of EUIPO dismissed that appeal by the contested decision. |
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9

After the present appellant had filed a notice of appeal with EUIPO against that decision on 28 August 2017, the Fifth Board of Appeal of EUIPO dismissed that appeal by the contested decision.

The procedure before the General Court and the judgment under appeal

The procedure before the General Court and the judgment under appeal

| 10 | By application lodged at the Registry of the General Court on 14 August 2018, STADA Arzneimittel brought an action seeking annulment of the contested decision. |
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10

By application lodged at the Registry of the General Court on 14 August 2018, STADA Arzneimittel brought an action seeking annulment of the contested decision.

| 11 | In support of its action, the appellant raised three pleas in law, alleging, first, infringement of Article 7(1)(c) of Regulation No 207/2009, second, infringement of Article 7(1)(b) of that regulation and, third, infringement of the duty to state reasons. |
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11

In support of its action, the appellant raised three pleas in law, alleging, first, infringement of Article 7(1)(c) of Regulation No 207/2009, second, infringement of Article 7(1)(b) of that regulation and, third, infringement of the duty to state reasons.

| 12 | By the judgment under appeal, the General Court dismissed the action as being, in part, unfounded and, in part, ineffective. |
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12

By the judgment under appeal, the General Court dismissed the action as being, in part, unfounded and, in part, ineffective.

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

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

| 13 | By its appeal, STADA Arzneimittel claims that the Court should:





  – | set aside the judgment under appeal; and |
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13

By its appeal, STADA Arzneimittel claims that the Court should:

–

set aside the judgment under appeal; and

| – | order EUIPO to pay the costs. |
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–

order EUIPO to pay the costs.

| 14 | The appellant relies on two grounds in support of its appeal. The first ground of appeal alleges an infringement of the duty to state reasons committed in the assessment of the differences between the word sign ‘ViruProtect’ and the English terms to which it refers, while the second alleges distortion of the evidence in the assessment of the descriptive character of that sign. |
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14

The appellant relies on two grounds in support of its appeal. The first ground of appeal alleges an infringement of the duty to state reasons committed in the assessment of the differences between the word sign ‘ViruProtect’ and the English terms to which it refers, while the second alleges distortion of the evidence in the assessment of the descriptive character of that sign.

| 15 | On 27 April 2020, the Court Registry requested the appellant to set out its view on the question of compliance with the period prescribed by the Rules of Procedure for lodging its appeal, which it did by document lodged with the Court Registry on 7 May 2020. |
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15

On 27 April 2020, the Court Registry requested the appellant to set out its view on the question of compliance with the period prescribed by the Rules of Procedure for lodging its appeal, which it did by document lodged with the Court Registry on 7 May 2020.

The appeal

The appeal

| 16 | Under Article 181 of the Rules of Procedure, where the appeal is, inter alia, in whole or in part, manifestly inadmissible, 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 in whole or in part. |
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16

Under Article 181 of the Rules of Procedure, where the appeal is, inter alia, in whole or in part, manifestly inadmissible, 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 in whole or in part.

| 17 | It is appropriate to apply that provision in the context of the present appeal. |
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17

It is appropriate to apply that provision in the context of the present appeal.

The appellant’s arguments

The appellant’s arguments

| 18 | The appellant submits that the two-month period referred to in Article 56 of the Statute of the Court of Justice of the European Union and the single period of 10 days laid down in Article 51 of the Rules of Procedure constitute two separate periods. |
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18

The appellant submits that the two-month period referred to in Article 56 of the Statute of the Court of Justice of the European Union and the single period of 10 days laid down in Article 51 of the Rules of Procedure constitute two separate periods.

| 19 | It relies, in this respect, on the title of Article 51 of the Rules of Procedure and on the wording of that article, as well as on a systematic reading of that provision, in particular in connection with Article 49(2) of those rules. |
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19

It relies, in this respect, on the title of Article 51 of the Rules of Procedure and on the wording of that article, as well as on a systematic reading of that provision, in particular in connection with Article 49(2) of those rules.

| 20 | The appellant further argues that, where a procedural provision is ambiguous, it must be interpreted in a way favourable to the applicant or appellant, in accordance with its right to be heard. |
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20

The appellant further argues that, where a procedural provision is ambiguous, it must be interpreted in a way favourable to the applicant or appellant, in accordance with its right to be heard.

| 21 | Thus, in the present case, it contends, since the two-month period available to the appellant to bring an appeal against the judgment under appeal ended on Sunday, 12 April 2020, and Monday, 13 April 2020, was an official holiday, that period should, in accordance with Article 49(2) of the Rules of Procedure, have been extended until Tuesday, 14 April 2020, the date from which the single period of 10 days provided for in Article 51 of the Rules of Procedure should be added. |
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21

Thus, in the present case, it contends, since the two-month period available to the appellant to bring an appeal against the judgment under appeal ended on Sunday, 12 April 2020, and Monday, 13 April 2020, was an official holiday, that period should, in accordance with Article 49(2) of the Rules of Procedure, have been extended until Tuesday, 14 April 2020, the date from which the single period of 10 days provided for in Article 51 of the Rules of Procedure should be added.

Findings of the Court

Findings of the Court

| 22 | First of all, it is important to note that, in accordance with Article 56 of the Statute of the Court of Justice of the European Union, the time limit for bringing an appeal is two months from the date of notification of the decision appealed against. That time limit is, pursuant to Article 51 of the Rules of Procedure, to be extended on account of distance by a single period of 10 days. |
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22

First of all, it is important to note that, in accordance with Article 56 of the Statute of the Court of Justice of the European Union, the time limit for bringing an appeal is two months from the date of notification of the decision appealed against. That time limit is, pursuant to Article 51 of the Rules of Procedure, to be extended on account of distance by a single period of 10 days.

| 23 | The Court has held that that single period of extension on account of distance is to be considered not to be distinct from the period for bringing an appeal referred to in Article 56 of the Statute of the Court of Justice of the European Union, but rather as an integral part of that period, which it extends. Thus, it follows from that article, read in conjunction with Article 51 of the Rules of Procedure, that the period within which an appeal must be brought, failing which it will be deemed to be inadmissible, is two months and 10 days following notification of the decision appealed against (order of 30 April 2015, Castel Frères v OHIM, C‐622/13 P, not published, EU:C:2015:297, paragraph 28). |
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23

The Court has held that that single period of extension on account of distance is to be considered not to be distinct from the period for bringing an appeal referred to in Article 56 of the Statute of the Court of Justice of the European Union, but rather as an integral part of that period, which it extends. Thus, it follows from that article, read in conjunction with Article 51 of the Rules of Procedure, that the period within which an appeal must be brought, failing which it will be deemed to be inadmissible, is two months and 10 days following notification of the decision appealed against (order of 30 April 2015, Castel Frères v OHIM, C‐622/13 P, not published, EU:C:2015:297, paragraph 28).

| 24 | It follows, moreover, from Article 49(1)(b) of the Rules of Procedure that, as regards measures requiring notification, the period for bringing proceedings begins to run from the end of the day of notification, regardless of the hour of day at which notification of the measure at issue took place (see, to that effect, judgment of 15 January 1987, Misset v Council, 152/85, EU:C:1987:10, paragraph 7, and order of 17 May 2002, Germany v Parliament and Council, C‐406/01, EU:C:2002:304, paragraph 14). |
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24

It follows, moreover, from Article 49(1)(b) of the Rules of Procedure that, as regards measures requiring notification, the period for bringing proceedings begins to run from the end of the day of notification, regardless of the hour of day at which notification of the measure at issue took place (see, to that effect, judgment of 15 January 1987, Misset v Council, 152/85, EU:C:1987:10, paragraph 7, and order of 17 May 2002, Germany v Parliament and Council, C‐406/01, EU:C:2002:304, paragraph 14).

| 25 | It also follows from that provision that that period expires at the end of the day which, in the last month in which the period ends, bears the same number as the day from which time was set running, that is to say the day of notification, a period to which is added one single period of 10 days on account of distance (order of 11 June 2020, GMPO v Commission, C‐575/19 P, not published, EU:C:2020:448, paragraph 30 and the case-law cited). |
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25

It also follows from that provision that that period expires at the end of the day which, in the last month in which the period ends, bears the same number as the day from which time was set running, that is to say the day of notification, a period to which is added one single period of 10 days on account of distance (order of 11 June 2020, GMPO v Commission, C‐575/19 P, not published, EU:C:2020:448, paragraph 30 and the case-law cited).

| 26 | In the present case, since the judgment under appeal was served on the appellant on 12 February 2020, as the appellant itself acknowledges in its written pleadings, the period for filing the appeal began on 12 February 2020 at midnight and, extended on account of distance by one single period of 10 days, expired on Wednesday, 22 April 2020, at midnight. |
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26

In the present case, since the judgment under appeal was served on the appellant on 12 February 2020, as the appellant itself acknowledges in its written pleadings, the period for filing the appeal began on 12 February 2020 at midnight and, extended on account of distance by one single period of 10 days, expired on Wednesday, 22 April 2020, at midnight.

| 27 | However, the present appeal was lodged at the Court Registry on 24 April 2020. Consequently, it was filed outside the period referred to in paragraph 23 of the present order. |
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27

However, the present appeal was lodged at the Court Registry on 24 April 2020. Consequently, it was filed outside the period referred to in paragraph 23 of the present order.

| 28 | Next, it must be observed that, according to settled case-law, 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 (judgment of 23 April 2013, Gbagbo and Others v Council, C‐478/11 P to C‐482/11 P, EU:C:2013:258, paragraph 71 and the case-law cited, and order of 29 January 2014, Gbagbo v Council, C‐397/13 P, not published, EU:C:2014:46, paragraph 7). |
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28

Next, it must be observed that, according to settled case-law, 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 (judgment of 23 April 2013, Gbagbo and Others v Council, C‐478/11 P to C‐482/11 P, EU:C:2013:258, paragraph 71 and the case-law cited, and order of 29 January 2014, Gbagbo v Council, C‐397/13 P, not published, EU:C:2014:46, paragraph 7).

| 29 | Thus, in accordance with the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, no derogation from the time limits for proceedings may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure. However, neither in its appeal nor in its observations of 7 May 2020 has the appellant invoked the existence of unforeseeable circumstances or of force majeure. |
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29

Thus, in accordance with the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, no derogation from the time limits for proceedings may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure. However, neither in its appeal nor in its observations of 7 May 2020 has the appellant invoked the existence of unforeseeable circumstances or of force majeure.

force majeure

force majeure

| 30 | The appellant merely alleges ambiguity in the provisions of Article 49(2) and Article 51 of the Rules of Procedure. In that regard, however, it should be observed that the rules governing the time limits applicable in the present case do not pose any particular difficulty of interpretation. Accordingly, it cannot be accepted that this is a case of excusable error on the part of the appellant, justifying derogation from the strict application of the abovementioned rules (order of 17 May 2002, Germany v Council, C‐406/01, EU:C:2002:304, paragraph 21). |
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30

The appellant merely alleges ambiguity in the provisions of Article 49(2) and Article 51 of the Rules of Procedure. In that regard, however, it should be observed that the rules governing the time limits applicable in the present case do not pose any particular difficulty of interpretation. Accordingly, it cannot be accepted that this is a case of excusable error on the part of the appellant, justifying derogation from the strict application of the abovementioned rules (order of 17 May 2002, Germany v Council, C‐406/01, EU:C:2002:304, paragraph 21).

| 31 | Lastly, to the extent to which, by relying on the right to be heard, the appellant seeks to invoke the right to effective judicial protection, it must be recalled that the rules concerning time limits within which proceedings must be brought are mandatory and that a derogation from those rules cannot be justified by the fact that fundamental rights are at stake (see, to that effect, order of 16 November 2010, Internationale Fruchtimport Gesellschaft Weichert v Commission, C‐73/10 P, EU:C:2010:684, paragraph 50 and the case-law cited). |
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31

Lastly, to the extent to which, by relying on the right to be heard, the appellant seeks to invoke the right to effective judicial protection, it must be recalled that the rules concerning time limits within which proceedings must be brought are mandatory and that a derogation from those rules cannot be justified by the fact that fundamental rights are at stake (see, to that effect, order of 16 November 2010, Internationale Fruchtimport Gesellschaft Weichert v Commission, C‐73/10 P, EU:C:2010:684, paragraph 50 and the case-law cited).

| 32 | As the Court has previously ruled, the right to effective judicial protection is in no way undermined by the strict application of EU rules concerning procedural time limits (see, inter alia, orders of 17 May 2002, Germany v Parliament and Council, C‐406/01, EU:C:2002:304, paragraph 20 and the case-law cited, and of 22 October 2010, Seacid v Parliament and Council, C‐266/10 P, not published, EU:C:2010:629, paragraph 30). Such time limits constitute, for the reasons relating to legal certainty referred to in paragraph 28 of the present order, an inherent limitation on the right of access to the courts (see, to that effect, orders of 12 September 2013, Ellinika Nafpigeia and 2. Hoern v Commission, C‐616/12 P, not published, EU:C:2013:884, paragraph 31, and of 11 June 2020, GMPO v Commission, C‐575/19 P, not published, EU:C:2020:448, paragraph 40). |
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32

As the Court has previously ruled, the right to effective judicial protection is in no way undermined by the strict application of EU rules concerning procedural time limits (see, inter alia, orders of 17 May 2002, Germany v Parliament and Council, C‐406/01, EU:C:2002:304, paragraph 20 and the case-law cited, and of 22 October 2010, Seacid v Parliament and Council, C‐266/10 P, not published, EU:C:2010:629, paragraph 30). Such time limits constitute, for the reasons relating to legal certainty referred to in paragraph 28 of the present order, an inherent limitation on the right of access to the courts (see, to that effect, orders of 12 September 2013, Ellinika Nafpigeia and 2. Hoern v Commission, C‐616/12 P, not published, EU:C:2013:884, paragraph 31, and of 11 June 2020, GMPO v Commission, C‐575/19 P, not published, EU:C:2020:448, paragraph 40).

| 33 | Having regard to all of the foregoing considerations, the appeal must, on the ground that it was brought out of time, be dismissed as being manifestly inadmissible. |
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33

Having regard to all of the foregoing considerations, the appeal must, on the ground that it was brought out of time, be dismissed as being manifestly inadmissible.

Costs

Costs

| 34 | Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order has been made before the appeal was served on the defendant at first instance and, consequently, before the latter could have incurred costs, STADA Arzneimittel shall be ordered to bear its own costs. |
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34

Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order has been made before the appeal was served on the defendant at first instance and, consequently, before the latter could have incurred costs, STADA Arzneimittel shall be ordered to bear its own costs.

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

| | 1. | The appeal is dismissed as being manifestly inadmissible. |
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1.

1.

The appeal is dismissed as being manifestly inadmissible.

The appeal is dismissed as being manifestly inadmissible.

| | 2. | STADA Arzneimittel AG shall bear its own costs. |
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2.

2.

STADA Arzneimittel AG shall bear its own costs.

STADA Arzneimittel AG shall bear its own costs.

| | [Signatures] |
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[Signatures]

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(
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  )	Language of the case: German.

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