Opinion of the Advocate General — ECLI:EU:C:2019:426
Date: 2019-05-16
Language of the case: French
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible

summary, if my assessment that it is ineffective is not accepted, then this ground of appeal must be upheld. 94. The only possible consequence of that finding would be the referral of the case back to the General Court, given that, in support of its argument in favour of the revocation of the decision by the Board of Appeal, EUIPO did not rely at any point (67) on Article 83 of Regulation No 207/2009. 95. In those circumstances, the General Court should grant EUIPO a time limit within which to adduce evidence of how the principle that decisions adopted by trade mark offices may be revoked is applied in the legal systems of the Member States. (68) V. Costs 96. Given that this Opinion is concerned with only two of the five grounds of appeal, I am unable to state my position on costs, which would be appropriate (under Article 184(2) of the Rules of Procedure of the Court of Justice) if the appeal brought by Repower AG were unfounded in its entirety. VI. Conclusion 97. In the light of the foregoing considerations, I propose that the Court should: (1) Rule inadmissible, or, in the alternative, dismiss, the second ground of the appeal brought by Repower AG against the judgment of the General Court of 21 February 2018 in Case T‑727/16, Repower v EUIPO — repowermap.org (REPOWER). (2) Dismiss the third ground of that appeal as ineffective, or, in the alternative, uphold that ground of appeal and refer the case back to the General Court. 1 Original language: Spanish. 2 Decision of 8 February 2016, case R 2311/2014-5. 3 Case T‑188/16, repowermap v EUIPO — Repower (REPOWER), stayed before the General Court. 4 Council Regulation of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1). 5 Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 amending Regulation No 207/2009 on the Community trade mark and Commission Regulation (EC) No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community trade mark, and repealing Commission Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OJ 2015 L 341, p. 21). 6 Regulation of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1). 7 Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as amended on 28 September 1979. 8 It relied in that connection on Article 52(1)(a), in conjunction with Article 7(1)(b) and (c), of Regulation No 207/2009. 9 The Cancellation Division indicated the following: ‘Building construction; repair; installation services; construction, repair as well as maintenance of transmission systems and distribution plants, intermediate and low voltage plants, public lighting systems together with electrical plant; construction, repair and maintenance of distribution systems for current; installation and maintenance of stations for transformers and distribution installations for electrical energy; installation and maintenance of public street lighting; building construction, installation and maintenance of large factories of large heat pumps; advice concerning the aforesaid services’. 10 Specifically: ‘Scientific services and research and development relating thereto; technical expertise concerning electrical installations; services of an engineer concerning activities of granting, metering and information and for control of installations in connection with energy supply’. 11 Case R 2311/2014-5 (REV). 12 Paragraphs 16 to 18 of the decision of 3 August 2016. 13 The decision of 26 September 2016 is not relevant to this appeal. Both Repower AG and repowermap brought actions against that decision before the General Court, which stayed the proceedings pending judgment in this appeal. 14 In reply to a question from the General Court, Repower AG added that the general principle of law which permits revocation of an unlawful administrative act could not serve as a legal basis for the contested decision. 15 Judgment in Repower v EUIPO — repowermap.org (REPOWER) (T‑727/16, ‘the judgment under appeal’, EU:T:2018:88). 16 Judgment of 22 November 2011, mPAY24 v OHIM — Ultra (MPAY24) (T‑275/10, not published, EU:T:2011:683). 17 Judgment under appeal, paragraphs 57 and 59. 18 Ibid., paragraph 61. 19 Judgments of 12 September 2007, González and Díez v Commission (T‑25/04, EU:T:2007:257, paragraph 97), and of 18 September 2015, Deutsche Post v Commission (T‑421/07 RENV, EU:T:2015:654, paragraph 47); see paragraphs 63 to 65 of the judgment under appeal. 20 Judgment under appeal, paragraph 65. 21 Ibid., paragraph 66. 22 Ibid., paragraphs 67 to 82. 23 The General Court added that the insufficient reasoning in the decision of 8 February 2016 with regard to a link between the contested mark and the remaining goods and services should have led Repower AG, as a careful business undertaking, to doubt its lawfulness. The General Court cited in that connection the judgments of 12 February 2008, CELF and ministre de la Culture et de la Communication (C‑199/06, EU:C:2008:79, paragraph 68), and of 20 June 1991, Cargill v Commission (C‑248/89, EU:C:1991:264, paragraph 22). 24 Paragraphs 84 to 86 of the judgment under appeal. 25 The first ground of appeal alleges infringement of Article 188 of the Rules of Procedure of the General Court; the fourth, the infringement of Repower AG’s legitimate expectations; and the fifth, a failure to state proper reasons. 26 A typical example of revocation in that sense is that provided for in Article 50 of the EU Treaty. 27 That occurs specifically in the case of Article 80 of Regulation No 207/2009. The language versions that I have consulted (German, Spanish, French, English, Italian, Dutch and Portuguese) use the word ‘revocation’ or another similar word in their own language to refer to the act of setting aside an earlier act in the light of its unlawfulness. To remain faithful to the EU legislation, I shall use the word ‘revocation’ (and not ‘ex officio review’) and its verb form. 28 Judgment of 12 July 1957, Algera and Others v Common Assembly (7/56 and 3/57 to 7/57, EU:C:1957:7, p. 56). 29 Judgment of 17 April 1997 (C‑90/95 P, EU:C:1997:198, paragraph 35). 30 In addition to the judgment of 12 July 1957, Algera and Others v Common Assembly (7/56 and 3/57 to 7/57, EU:C:1957:7), see also judgment of 9 March 1978, Herpels v Commission (54/77, EU:C:1978:45, paragraph 38). 31 Judgment of 26 February 1987 (Consorzio Cooperative d’Abruzzo, 15/85, EU:C:1987:111, paragraph 12 et seq.). 32 Judgment of 3 March 1982, Alpha Steel v Commission (14/81, EU:C:1982:76, paragraphs 10 and 11). 33 Judgment of 20 June 1991, Cargill v Commission (C‑248/89, EU:C:1991:264, paragraph 20). 34 Judgment of 15 October 2009, Audiolux and Others (C‑101/08, EU:C:2009:626, paragraphs 53 and 54). 35 See, inter alia, judgment of 13 January 2014, Kühne & Heitz (C‑453/00, EU:C:2004:17, paragraph 24). 36 That is clearly explained by the judgment of 22 March 1961, Snupat (42/59 and 49/59, EU:C:1961:5, p. 86). 37 Evidence of this is provided by the wording of Article III‑36(3), third sentence, of the ReNEUAL Model Rules on EU Administrative Procedure — Book III — Single Case Decision-Making (ReNEUAL SC 2014, p. 94), which explains that that article ‘empowers public authorities only under very restrictive conditions to withdraw such a decision’ (p. 141, point 138). Although they are non-binding, those rules demonstrate the general sensitivity in the administrative law of a good number of Member States. 38 In this context, ‘obvious’ is synonymous with ‘manifest’, an adjective more in keeping with that used in other language versions, like the French (‘manifeste’) or the German (‘offensichtlich’). The English version uses ‘obvious’. 39 See Opinion of Advocate General Bot in OHIM v National Lottery Commission (C‑530/12 P, EU:C:2013:782, point 93); also in relation to Boards of Appeal, albeit those of the Community Plant Variety Office (CPVO), see judgment of 21 May 2015, Schräder v CPVO (C‑546/12 P, EU:C:2015:332, paragraph 73). 40 Their powers are not reduced when they review acts of a public authority and instead they prepare the ground for bringing proceedings before the EU judicature by clarifying the factual and legal issues to be debated before the General Court. See judgment of 13 March 2007, OHIM v Kaul (C‑29/05, EU:C:2007:162, paragraphs 53 and 54). 41 This has been retained unaltered in Article 72 of Regulation 2017/1001. 42 Commission Regulation (EC) No 216/96 of 5 February 1996 laying down the rules of procedure of the Boards of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OJ 1996 L 28, p. 11), as amended by Commission Regulation (EC) No 2082/2004 of 6 December 2004 (OJ 2004 L 360, p. 8), and repealed by Commission Delegated Regulation (EU) 2017/1430 of 18 May 2017 supplementing Regulation No 207/2009 and repealing Commission Regulations (EC) No 2868/95 and (EC) No 216/96 (OJ 2017 L 205, p. 1). 43 Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1). 44 Repower AG refers to the judgments of 12 September 2007, González and Díez v Commission (T‑25/04, EU:T:2007:257), and of 18 September 2015, Deutsche Post v Commission (T‑421/07 RENV, EU:T:2015:654). 45 Repower AG refers to the judgment of 15 July 2015, Socitrel and Companhia Previdente v Commission (T‑413/10 and T‑414/10, EU:T:2015:500, paragraph 187). 46 ‘Indeed, if an appellant could not base his appeal on pleas in law and arguments already relied on before the General Court in that way, an appeal would be deprived of part of its purpose’. Judgments of 10 May 2012, Rubinstein and L’Oréal v OHIM (C‑100/11 P, EU:C:2012:285, paragraph 110), and of 17 March 2016, Naazneen Investments v OHIM (C‑252/15 P, EU:C:2016:178, paragraph 24 and the case-law cited). 47 See, for example, judgment of 28 February 2018, mobile.de v EUIPO (C‑418/16 P, EU:C:2018:128, paragraph 35 and the case-law cited). 48 Point 36 of the appeal. 49 Point 48 of the appeal. 50 See point 34 of this Opinion. 51 Cited in footnote 44 above. 52 ‘The Commission may revoke a decision [on State aid] taken pursuant to Article 4(2) or (3), or Article 7(2), (3), (4), after having given the Member State concerned the opportunity to submit its comments, where the decision was based on incorrect information provided during the procedure which was a determining factor for the decision.’ Council Regulation of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1). 53 Referring to the judgment of 22 November 2011, MPAY24 (T‑275/10, EU:T:2011:683). 54 Judgment under appeal, paragraph 57. 55 Ibid., paragraph 59. 56 Inter alia, judgments of 2 April 1998, Commission v Systraval and Brink’s France (C‑367/95 P, EU:C:1998:154, paragraphs 63 and 67 and the case-law cited); of 14 September 2016, Trafilerie Meridionali v Commission (C‑519/15, EU:C:2016:682, paragraph 40); and of 25 July 2018, Spain v Commission (C‑588/17 P, not published, EU:C:2018:607, paragraph 74). 57 Judgment of 14 October 2010, Deutsche Telekom v Commission (C‑280/08 P, EU:C:2010:603, paragraph 130). 58 Judgments of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraph 70 and the case-law cited), and of 7 February 2018, American Express (C‑643/16, EU:C:2018:67, paragraph 73). 59 See judgment of 9 June 2011, Diputación Foral de Vizcaya and Others v Commission (C‑465/09 P to C‑470/09 P, not published, EU:C:2011:372, paragraph 171 and the case-law cited), and, more recently, order of 22 November 2018, King v Commission (C‑412/18 P, not published, EU:C:2018:947, paragraph 18). 60 In paragraphs 60 to 91, at least, of the judgment under appeal. 61 See, for example, order of 11 June 2015, Faci v Commission (C‑291/14, not published, EU:C:2015:398, paragraph 50 and the case-law cited). 62 Paragraph 93 of the judgment under appeal. 63 The General Court cited the judgments of 12 July 1957, Algera and Others v Common Assembly (7/56 and 3/57 to 7/57, EU:C:1957:7, pp. 55 and 56); of 22 March 1961, Snupat v High Authority (42/59 and 49/59, EU:C:1961:5, p. 87); and of 13 July 1965, Lemmerz-Werke v High Authority (111/63, EU:C:1965:76, p. 690). 64 The General Court cited the judgments of 3 March 1982, Alpha Steel v Commission (14/81, EU:C:1982:76, paragraph 10); of 5 December 2000, Gooch v Commission (T‑197/99, EU:T:2000:282, paragraph 53); of 12 September 2007, González and Díez v Commission (T‑25/04, EU:T:2007:257, paragraph 97); and of 11 July 2013, BVGD v Commission (T‑104/07 and T‑339/08, not published, EU:T:2013:366, paragraph 63). 65 Italics added. 66 Paragraph 93 of the judgment under appeal. 67 An incidental reference to that provision was made in connection with the argument in support of the power of Boards of Appeal to revoke an act on the grounds of an inadequate statement of reasons, relying on Article 80(1) of Regulation No 207/2009. 68 See, on the exchange of information between the Office and the authorities of the Member States, Article 20 of Commission Implementing Regulation (EU) 2018/626 of 5 March 2018 laying down detailed rules for implementing certain provisions of Regulation 2017/1001, and repealing Implementing Regulation (EU) 2017/1431 (OJ 2018 L 104, p. 37).