Order;Summary — ECLI:EU:C:2023:601
Date: 2023-07-11
Language of the case: German
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal

summary of the reasons why the Court decided to allow the appeal brought by EUIPO to proceed, it is necessary to examine in detail whether it is well founded. B. The single ground of appeal 1. Arguments of the parties 60. In support of its appeal, EUIPO raises a single ground, alleging infringement of Article 72(3) of Regulation 2017/1001. EUIPO argues that the General Court exceeded the limit set on its jurisdiction by that provision in examining for the first time the ground for refusal and the plea based on Article 7(1)(a) of Regulation No 207/2009, read in conjunction with Article 4 thereof, raised by the applicant at first instance before the Board of Appeal but which the latter expressly refrained from examining in the decision at issue, and in ruling itself, on that basis, as to the substance, in place of the Board of Appeal, on the action brought before the latter. 61. According to EUIPO, this was not the task of the General Court, since it had jurisdiction to review not the examiner’s decision but only the legality of the decision at issue taken by the Board of Appeal. Ultimately, therefore, the General Court definitively deprived the Board of Appeal, in the present case, of the inherent power of review that is conferred on it by Article 165(1), Article 66(1) and Article 70(1) of Regulation 2017/1001, the fundamental importance of which for the division of powers between EUIPO, its Board of Appeal, the General Court and the Court of Justice in a system of comprehensive, appropriate and effective legal protection, including against the decisions of EUIPO, has been expressly reaffirmed on several occasions by the legislature. 62. The appeal is directed against the following aspects of the judgment under appeal: (i) the finding that the General Court has jurisdiction ratione materiae to examine the issue of the substantive applicability, in the present case, of the requirements of Article 7(1)(a), read in conjunction with Article 4 of Regulation No 207/2009, by virtue of the plea which the latter had raised of its own motion; (ii) the examination by the General Court, on that basis, of the substantive applicability of the requirements of Article 7(1)(a) of Regulation No 207/2009, read in conjunction with Article 4 thereof; (iii) the resulting finding that the sign is caught by the ground for refusal referred to in Article 7(1)(a) of Regulation No 207/2009, and (iv) the finding that the decision at issue is annulled. 63. Neoperl submits that EUIPO’s appeal is rightly directed against the aspects of the judgment under appeal referred to in the preceding point. Neoperl also states that EUIPO rightly explained that the General Court’s examination as to the substance of Article 7(1)(a) of Regulation No 207/2009, read in conjunction with Article 4 of that regulation, was not necessary. In its view, the judgment under appeal should be set aside and the case referred back to EUIPO so that it can itself carry out a full examination of Article 7(1)(a) of Regulation No 207/2009, read in conjunction with Article 4 of that regulation. 64. As regards the effects of the judgment under appeal, Neoperl claims that the alleged infringements by the General Court adversely affect its right to be heard. Accordingly, following the annulment of the decision at issue by the General Court, another Board of Appeal of EUIPO should have been called upon to rule on the question whether the sign for which registration was sought satisfied the requirements of Article 4 of Regulation No 207/2009. Unlike the General Court, whose assessment criterion is limited to a review of legality, that other Board of Appeal of EUIPO could, in itself, both exercise the powers of the examiner at first instance and analyse of its own motion the facts and take into account new facts and new evidence. 65. However, in the light of the considerations set out by the General Court in paragraphs 47 to 58 of the judgment under appeal, that Board of Appeal would therefore be required to refuse, without further analysis of the facts, registration of the sign for which registration was sought due to an alleged impossibility of representing it graphically, since the General Court considers the findings set out in paragraphs 47 to 58 of the judgment under appeal to be binding. Neoperl emphasises that an appeal before the General Court against such a decision would have no chance of success, since the General Court has already ruled against the possibility of representing graphically the sign for which registration was sought. The considerations set out by the General Court in paragraphs 47 to 58 of the judgment under appeal therefore constitute an infringement of Neoperl’s right to be heard. 2. Assessment (a) The need to examine each stage of the reasoning of the judgment under appeal 66. EUIPO criticises the General Court, in essence, for having exceeded the jurisdiction to alter decisions conferred on it by Article 72(3) of Regulation 2017/1001. In that regard, it is important to note that the line of legal reasoning developed by the General Court in the judgment under appeal is relatively complex. For that reason, it is not easy to determine, at first glance, exactly where the ‘original’ legal error in the arguments lies. Before exercising its jurisdiction to alter decisions, the General Court had to address a series of preliminary legal questions. 67. More specifically, the Court raised of its own motion, first of all, a plea alleging breach of the scope of the law and ruled, subsequently, on the priority application of the ground for refusal referred to in Article 7(1)(a) of Regulation No 207/2009. It was only after finding that the Board of Appeal of EUIPO had disregarded that alleged priority application that the General Court decided to annul the decision of the Board of Appeal. The matters raised by the General Court are closely linked and, therefore, deserve detailed examination. 68. For the reasons set out, it seems essential to me, for the sake of clarity, to examine each stage of the legal reasoning of the General Court which is the subject matter of this appeal. Accordingly, the analysis which follows will be structured in accordance with those stages. As I shall explain, there are legal issues to be addressed in that analysis which have not yet been considered in the Court of Justice’s case-law. The objective of that analysis will be to identify the precise point from which the reasoning of the General Court departs from the requirements of EU law and it thereafter commits an error of law which justifies the setting aside of the judgment under appeal. (b) The possibility of raising of its own motion a plea alleging breach of the scope of the law 69. In paragraphs 18 to 49 of the judgment under appeal, the General Court addresses the question of the possibility of raising of its own motion a plea alleging breach of the scope of the law. The reason for the analysis of that question is that, in the view of the General Court, the Board of Appeal should have examined whether the sign in respect of which registration was sought met the requirements of Article 7(1)(a) of Regulation No 207/2009 and, in particular, whether it met the graphic representation requirement laid down in Article 4 of that regulation, before examining the sign in the light of the requirements of Article 7(1)(b) of that regulation. 70. In other words, the General Court considers that the Board of Appeal committed an error of law in so far as it failed to examine a preliminary question the resolution of which is necessary in order to proceed to the examination of the pleas alleging infringement of Article 7(1)(b) of Regulation No 207/2009 and Article 95(1) of Regulation 2017/1001. The General Court is thus faced with a situation in which, at the request of the parties to the dispute, it must review the legality of the Board of Appeal’s application of a provision even though, according to the General Court, that provision does not apply. 71. In paragraph 48 of the judgment under appeal, the General Court explains that it would be neglecting its function as the arbiter of legality if, first, it failed to make a finding, even in the absence of a challenge by the parties on that point, that the decision at issue had been adopted on the basis of a rule, namely Article 7(1)(b) of Regulation No 207/2009, that could prove to be inapplicable to the present case in the event that the sign in respect of which registration was sought is not a sign of which a trade mark may consist within the meaning of Article 4 of that regulation, an aspect which was not examined by the Board of Appeal, and, secondly, if it was led to adjudicate on the dispute before it by applying that rule itself. 72. I can only endorse that view. As guarantor of legality, the EU judicature must itself respect EU law and deliver decisions free from errors. That task requires, in my view, that the concept of ‘plea involving a matter of public policy concerning legality’ be extended to a guarantee of the substantive law. (13) In that context, it should be recalled that a plea alleging a breach of the scope of the law was a plea involving a matter of public policy in the case-law of the Civil Service Tribunal. That position was set out in the landmark judgment of 21 February 2008, Putterie-De-Beukelaer v Commission, (14) as well as in a precedent established by the General Court in the judgment of 15 July 1994, Browet and Others v Commission, (15) concerning the requirements inherent to the function of arbiter of legality. Accordingly, the Civil Service Tribunal considered that it ‘would be neglecting its function as the arbiter of legality if, even in the absence of a challenge by the parties in this regard, it failed to make a finding that the contested decision before the Tribunal had been adopted on the basis of a rule that was not applicable to the case in point and if, as a consequence, it was led to adjudicate on the dispute before it by itself applying such a rule’. (16) The specialisation of that court, which permits it to master the complexity of the rules applicable in that field of law, undoubtedly contributed to the creation of that case-law. 73. Although similar examples in the case-law of the other Courts of the European Union are rather rare, there is no objective reason not to recognise also that plea involving a matter of public policy within their respective spheres of competence. Indeed, it is indisputable that the EU judicature is able to verify of its own motion the rules which it applies and interprets. Numerous examples show that both the Court of Justice and the General Court are ready to determine of their own motion the applicable law. Thus, the General Court rectifies on its own initiative the legal basis relied on by a party by substituting the provisions applicable ratione temporis for those relied on by that party. (17) It reinterprets a complaint relying on infringement of secondary legislation as being based on infringement of a general principle of law. (18) The Court of Justice, in a preliminary ruling on a question of interpretation, does not hesitate to verify or clarify of its own motion the scope of the rule referred to by the national court and, where appropriate, to rectify an error made in that regard by the latter court. (19) 74. For the reasons set out above, I am of the view that it is appropriate to recognise the power of the EU judicature to raise of its own motion a plea alleging breach of the scope of the law where such an approach is necessary. The exercise of that power must nevertheless be subject to sufficiently precise conditions, namely the inapplicability of a rule to the specific case and the risk that the court may resolve the dispute in breach of that rule if it refrains from raising that plea. Those conditions seem to me to be formally met in the present case, irrespective of whether the General Court’s presumption regarding the applicability of the substantive law in question is correct, which will be examined later. 75. Therefore, to the extent that the General Court held in the judgment under appeal that the Board of Appeal had taken a decision on an incorrect legal basis and that it was necessary to raise that matter of its own motion or otherwise confirm a decision vitiated by an error of law, I consider that that reasoning is legally unchallengeable for the purposes of this appeal. Indeed, if the General Court had acted otherwise in those circumstances, it would have had to take a decision which was also contrary to EU law, which would have been incompatible with the duty of legality of a court. 76. Accordingly, I consider that, at least from a formal point of view, the General Court cannot be criticised for having committed an error of law when it raised of its own motion a plea alleging breach of the scope of the law. (c) The priority application of Article 7(1)(a) of Regulation No 207/2009 77. It is true that that interim conclusion has no impact on the question whether the Board of Appeal actually based its decision on an incorrect legal basis, as the General Court presumes. That presumption is based on the General Court’s interpretation that Article 7(1)(a) of Regulation No 207/2009 must logically be examined before Article 7(1)(b) of that regulation and that there is therefore a priority of application. 78. In paragraph 46 of the judgment under appeal, the General Court notes that the Board of Appeal had examined whether the mark applied for had acquired distinctive character through use within the meaning of Article 7(3) of Regulation No 207/2009. However, the General Court states that such examination is not possible if the sign at issue is not capable of being represented graphically within the meaning of Article 4 of that regulation and must, consequently, be refused registration in accordance with Article 7(1)(a) of that regulation. 79. In paragraph 47 of the judgment under appeal, the General Court explains that the issue of whether the sign in respect of which registration as an EU trade mark was sought meets the conditions laid down in Article 4 of Regulation No 207/2009, including that of being capable of being represented graphically, and whether it is therefore capable of constituting a trade mark, is a preliminary issue, the resolution of which is necessary in order to proceed to the examination of the pleas in law alleging infringement of Article 7(1)(b) of Regulation No 207/2009 and Article 95(1) of Regulation 2017/1001. 80. To my knowledge, that interpretation reflects case-law recently developed by the General Court. (20) In that regard, it should be noted that, in paragraph 46 of the judgment under appeal, the General Court cites its judgment of 6 October 2021, M/S. Indeutsch International v EUIPO – 135 Kirkstall (Representation of chevrons between two parallel lines), (21) in which that new line of case-law appears to originate. The question which arises is therefore whether that case-law has a basis in EU law. 81. From the outset, it is important to recall that, in accordance with the settled case-law of the Court, each of the grounds for refusal to register listed in Article 7(1) of Regulation No 207/2009 is independent of the others and calls for separate examination. (22) Furthermore, the Court has already ruled that the various grounds for refusal must be interpreted in the light of the public interest underlying each of them. The public interest taken into account in the examination of each of those grounds for refusal may, or even must, reflect different considerations, depending upon which ground for refusal is at issue. (23) 82. The aforementioned case-law, which is evidently based on the principle that each of the absolute grounds for refusal listed in Article 7(1) of Regulation No 207/2009 is autonomous, does not seem to me necessarily to exclude an interpretation, as supported by the General Court, according to which it is necessary first to examine whether the sign at issue fulfils the conditions set out in Article 4, as required by Article 7(1)(a) of that regulation. Rather, it seems to me to be possible to understand that interpretation as an instruction addressed to the administration and legal practitioners to verify, primarily, whether the most basic requirements in terms of registration of signs are met. Above all, such an interpretation does not seem to me to call into question the scope of the other grounds for refusal. Thus, if Article 7(1)(a) proves to be inapplicable to the present case, which it is for EUIPO to examine, the obligation also to verify the applicability of the other grounds for refusal remains. Seen from that perspective, it is not necessarily apparent that there is a contradiction between that new line of case-law established by the General Court and the settled case-law of the Court of Justice. 83. Irrespective of that point of view, a number of arguments support the interpretation adopted by the General Court, as I shall explain below. 84. First, the actual wording of Article 7(1)(a) or (b) of Regulation No 207/2009 supports that priority. While Article 7(1)(b) refers to ‘trade marks’, Article 7(1)(a) refers to ‘signs’. In connection with Article 7(1)(a), it is therefore first necessary to examine whether the sign at issue is capable of constituting a trade mark within the meaning of Article 4 of that regulation. Article 7(1)(b) is concerned, next, with the question whether the sign which is in principle capable of constituting a trade mark can also fulfil its function of indicating origin. 85. Secondly, it also follows from the structure inherent in Article 7 of Regulation No 207/2009 that Article 7(1)(a) has priority over Article 7(1)(b). Article 7(3) provides that it is possible to overcome the lack of distinctive character of a mark if the mark has become distinctive in consequence of the use which has been made of it. However, this logically implies that the sign for which registration was sought is also capable of constituting a mark within the meaning of Article 7(1)(a) of that regulation, since that ground for refusal cannot be overcome by use. 86. Thirdly, the meaning and purpose of the aforementioned provisions also support such priority. The question of the distinctive character of a mark can be logically analysed only if it is first of all established to which sign the distinctive character must specifically relate. It is therefore necessary to establish beforehand whether the sign in respect of which registration was sought is capable of being adequately represented graphically or whether it is sufficiently precise to be capable of constituting the basis of the examination of the distinctive character of that specific sign. 87. In the light of the foregoing considerations, I am of the view that the interpretation supported by the General Court, with regard to the priority application of the ground for refusal referred to in Article 7(1)(a) of Regulation No 207/2009, is not vitiated by an error of law. It follows that the General Court was right to raise of its own motion a plea alleging breach of the scope of the law in the dispute in the main proceedings. As I have stated above, the intervention of the Court of Justice seems to me to have been necessary in the circumstances set out in order to prevent an error of law committed by the Board of Appeal from being perpetuated. (24) (d) The unlawful exercise of the jurisdiction to alter decisions conferred on the General Court by Article 72(3) of Regulation 2017/1001 88. By contrast, the exercise by the General Court of the jurisdiction to alter decisions conferred on it by Article 72(3) of Regulation 2017/1001 in order to apply its interpretation of Article 7(1) of Regulation No 207/2009 seems legally questionable to me. In my view, there is at that stage of the General Court’s reasoning a serious error of law which justifies the setting aside of the judgment under appeal. It is appropriate to examine in detail the relevant passages of that judgment. 89. In paragraph 50 of the judgment under appeal, the General Court explains that, in order to determine whether Article 7(1)(b) of Regulation No 207/2009 was applicable for the purpose of examining the application for registration, the General Court had to examine whether the sign in respect of which registration had been sought met the conditions for registration set out in Article 4 of that regulation, specifically whether it was capable of being represented graphically. 90. In paragraphs 55 to 57 of the judgment under appeal, the General Court itself carries out an in-depth assessment of the sign at issue for the purpose of concluding, in paragraph 58 of that judgment, that that sign does not meet the conditions set out in Article 4 of Regulation No 207/2009 and, consequently, is caught by the absolute ground for refusal set out in Article 7(1)(a) of that regulation. However, by carrying out its own assessment of the facts, the General Court takes the place of EUIPO and thus exceeds the powers conferred on it by EU law. That observation calls for some general remarks relating to the judicial protection of intellectual property rights. (1) The jurisdiction to assess the facts in the field of intellectual property 91. In that regard, I would like to point out that it is exclusively for the competent bodies within EUIPO to carry out such an assessment of the facts. (25) Those bodies are, in the first place, the examiner who, in accordance with Article 160 of Regulation 2017/1001, ‘shall be responsible for taking decisions on behalf of [EUIPO] in relation to an application for registration of an EU trade mark’. Among the tasks entrusted to the examiner is that of establishing whether there are grounds preventing the registration of a sign as an EU trade mark. That power is conferred, in the second place, on the Boards of Appeal which, in accordance with Article 165 of that regulation, are to be responsible for deciding on appeals from those decisions. As is clear from Article 71(1) of that regulation, ‘following the examination as to the allowability of the appeal, the Board of Appeal shall decide on the appeal’. To that end, the Board of Appeal may ‘either exercise any power within the competence of the department which was responsible for the decision appealed or remit the case to that department for further prosecution’. 92. By contrast, the General Court does not have that power, under Article 72(1) of Regulation 2017/1001, in an action for annulment against a decision taken by the Board of Appeal. Although it is apparent from Article 72(3) of that regulation that the General Court ‘shall have jurisdiction to annul or to alter the contested decision’, the fact remains that the jurisdiction to alter decisions is strictly limited to a review of the legality of the decisions at issue, (26) since the EU judicature is unable to modify the factual and legal context of the dispute as it was brought before the Board of Appeal. As I shall explain below, that power in no way implies the exercise of unlimited jurisdiction in that that judicature is able to substitute its own reasoning for that of the Board of Appeal or to carry out an assessment on which that Board of Appeal has not yet adopted a position. (27) (2) The organisation of the judicial protection of intellectual property rights in the legal order of the European Union 93. That division of powers is a result of the way in which the judicial protection of intellectual property rights is organised in the legal order of the European Union. Initially, the parties concerned may bring an appeal before the Boards of Appeal of EUIPO, which perform a dual function: on the one hand, they act as a filter, reducing the number of cases brought before the EU judicature, and, on the other hand, they function as examination bodies specialised in the field in which they operate, namely intellectual property law. Subsequently, the parties concerned may bring an appeal before the EU judicature, which is then limited to a review of the legality of the decisions of the Boards of Appeal, but within that framework the EU judicature has jurisdiction, under certain conditions, to alter those decisions. 94. The EU legislature has provided for a multi-level system of administrative and judicial remedies, so that, in relation to issues of fact the Board of Appeal has the central role in delineating the subject matter of the dispute. (28) As for the EU judicature, its review must thus be understood as a ‘secondary’ intervention within the framework of which it may not only annul the contested decision, but also, under certain conditions, settle the dispute quickly and efficiently with due respect for institutional balance. In order to save valuable time for the parties while relieving the specialised administrative body concerned of an additional task, the EU legislature permits the EU judicature to alter the decision of Board of Appeal of EUIPO. The idea is, for the sake of good administration, to avoid referring the case back to that Board of Appeal when the state of the proceedings is such that judgment can be given and thus to allow the court to restore in full the legality of the contested decision. (29) (3) The conditions for the exercise of the jurisdiction to alter decisions 95. The exercise by the EU judicature of its jurisdiction to alter decisions in intellectual property matters presupposes that the state of the proceedings is such that judgment can be given. Therefore, the EU judicature, without even needing to carry out a comprehensive new examination of the file, must have all the legal and factual elements which are necessary for it to alter the decision of the Board of Appeal of EUIPO. Accordingly, if the EU judicature finds that an element relevant to the alteration requested of it is not among the elements on which the contested decision was based, it cannot modify that decision. On the other hand, where all the elements relevant to that end have been the subject of an assessment by the Board of Appeal of EUIPO, it will be able to restore the legality of that decision by altering it. (30) 96. Where the state of the proceedings is such that judgment can be given, the EU judicature may modify the decision of the Board of Appeal of EUIPO so that that decision corresponds to that which that Board of Appeal should have taken in accordance with the legislation in force when the administrative appeal was brought before it. Any subjective approach on the part of the EU judicature in that context is, therefore, precluded. It is a question neither of mechanically drawing the appropriate conclusions from the error found in the contested decision, nor of assessing whether the rights of the applicant are adequately safeguarded by exercising the jurisdiction to annul a decision, but of establishing, in the light of the matters of fact and law as established, the decision which should have been lawfully adopted. (31) The General Court’s jurisdiction to alter decisions extends only to that of the Board of Appeal itself, so that it does not have the power, for example, to give EUIPO instructions to publish or register a trade mark. (32) 97. As the Court stated, in essence, in the judgment of 5 July 2011, Edwin v OHIM, pointing out that the jurisdiction to alter decisions in intellectual property matters was exercised after a review of the assessment made by the Board of Appeal, such an alteration is possible only if a substantive illegality of that decision has been found. This presupposes, according to the Court, that ‘[the decision in question is] vitiated by one of the grounds for annulment or alteration set out in [Article 72 of Regulation 2017/1001]’. (33) It follows that, even though, in accordance with the rules of procedure, it is in principle for the applicant to rely on one of those grounds for annulment in the dispute, there is nothing to prevent the court from identifying of its own motion an equivalent circumstance justifying the alteration of an administrative decision. As I have noted in this Opinion, the EU judicature’s role as guarantor of legality requires that it intervene where this seems justified, (34) provided, of course, that the conditions for the exercise of the jurisdiction to alter decisions are met. (4) Examination of the General Court’s legal reasoning in the light of the rules governing the exercise of the jurisdiction to alter decisions 98. In the present case, it must be noted that the General Court did not comply with the rules governing the exercise of the jurisdiction to alter decisions. More specifically, the state of the proceedings was not such that judgment could be given, since the Board of Appeal had refrained from examining the absolute ground for refusal contained in Article 7(1)(a) of Regulation No 207/2009. Nevertheless, the General Court itself carried out such an examination by raising of its own motion the plea alleging breach of the scope of the law. In so doing, the General Court disregarded the fact that the power to alter decisions does not have the effect of conferring on that Court the power to substitute its own reasoning for that of a Board of Appeal. The General Court is certainly not authorised to carry out an assessment on which that Board of Appeal has not yet adopted a position. By carrying out an initial examination of the factual circumstances, the General Court exercised a power which, as I have stated previously, belongs exclusively to the Board of Appeal. In breach of the rules governing the exercise of the jurisdiction to alter decisions, the General Court did not confine itself to a review of the legality of the decision of the Board of Appeal, but also arrogated to itself the power to assess the facts. (35) 99. The General Court exercised its jurisdiction to alter decisions even though it was not in a situation allowing it to establish what decision the Board of Appeal should have taken. In view of the fact that that Board of Appeal had refrained from taking a position on the application of Article 7(1)(a) of Regulation No 207/2009, it was not possible for the General Court to determine with the necessary certainty on what legal basis EUIPO would ultimately base its refusal to register the sign at issue as an EU trade mark. Accordingly, the General Court exceeded the limits of its jurisdiction. That error of law seems to me to be particularly serious in the specific circumstances, since it reveals a manifest misunderstanding of the binding institutional framework governing the jurisdiction to alter decisions in intellectual property matters, laid down in Article 72(3) of Regulation 2017/1001. 100. All those elements lead me to conclude that the ground of appeal put forward by EUIPO must be declared well founded. 3. Concluding remarks 101. On the basis of the foregoing analysis, I propose that the appeal be upheld. The form of order sought by EUIPO must be granted and the judgment under appeal set aside in its entirety. Although the error of law committed by the General Court concerns only the last stage of its legal reasoning, relating to the exercise of the jurisdiction to alter decisions, the fact remains that the legal matters examined by it are intrinsically linked and therefore warrant an ex novo decision. 102. In so far as it remains necessary to make a number of findings in order to resolve the dispute, I consider that the state of the proceedings is not such that judgment can be given by the Court of Justice, for the purposes of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union. For that reason, I propose that the case be referred back to the General Court so that it can give a ruling taking into account the points of law resolved by the decision of the Court of Justice. 103. Since I propose that the case should be referred back to the General Court, the costs relating to the present appeal should be reserved. VII. Conclusion 104. In the light of the foregoing considerations, I propose that the Court should: (1) set aside in its entirety the judgment of the General Court of the European Union of 7 December 2022, Neoperl v EUIPO (Representation of a cylindrical sanitary insert) (T‑487/21, EU:T:2022:780); (2) refer the case back to the General Court of the European Union; and (3) reserve the costs. 1 Original language: French. 2 OJ 2017 L 154, p. 1. 3 OJ 2009 L 78, p. 1. 4 OJ 2015 L 341, p. 21. 5 Judgment of 6 October 2021, M/S. Indeutsch International v EUIPO – 135 Kirkstall (Representation of chevrons between two parallel lines) (T‑124/20, EU:T:2021:668). 6 Commission Implementing Regulation 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). 7 Order of 11 July 2023, EUIPO v Neoperl (C‑93/23 P, EU:C:2023:601). 8 See the Request submitted by the Court of Justice pursuant to the second paragraph of Article 281 of the Treaty on the Functioning of the European Union, with a view to amending Protocol No 3 on the Statute of the Court of Justice of the European Union, available at the following website: https://curia.europa.eu/jcms/jcms/P_64268/en/ (pp. 1 and 7). 9 See order of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann (C‑382/21 P, EU:C:2021:1050). 10 See order of 7 April 2022, EUIPO v Indo European Foods (C‑801/21 P, EU:C:2022:295). 11 See order of 30 January 2023, bonnanwalt v EUIPO (C‑580/22 P, EU:C:2023:126). 12 Order of 11 July 2023, EUIPO v Neoperl (C‑93/23 P, EU:C:2023:601). 13 See, to that effect, Clausen, F., Les moyens d’ordre public devant la Cour de justice de l’Union européenne, Brussels, 2018, pp. 309 to 317. 14 Judgment of 21 February 2008 (F‑31/07, EU:F:2008:23). 15 See judgment of 15 July 1994 (T‑576/93 to T‑582/93, EU:T:1994:93, paragraph 35). 16 Judgment of 21 February 2008, Putterie-De-Beukelaer v Commission (F‑31/07, EU:F:2008:23, paragraph 50 et seq.). 17 See judgments of 6 September 2013, Europäisch-Iranische Handelsbank v Council (T‑434/11, EU:T:2013:405, paragraph 123), and of 10 October 2014, Marchiani v Parliament (T‑479/13, not published, EU:T:2014:866, paragraph 71). 18 See judgment of 10 October 2014, Marchiani v Parliament (T‑479/13, not published, EU:T:2014:866, paragraph 81). 19 See judgments of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905, paragraphs 6 to 10); of 23 April 2009, Rüffler (C‑544/07, EU:C:2009:258, paragraphs 50 to 59); of 8 March 2011, Ruiz Zambrano (C‑34/09, EU:C:2011:124, paragraphs 39 and 40); and of 12 December 2013, Imfeld and Garcet (C‑303/12, EU:C:2013:822, paragraphs 35 to 39). 20 See, in that regard, Büscher, W., Kochendörfer, M., Unionsmarkenverordnung Beck’scher Online-Kommentar, 32nd Edition, Article 7(77). 21 T‑124/20, not published, EU:T:2021:668, paragraph 47. 22 See judgments of 8 April 2003, Linde and Others (C‑53/01 to C‑55/01, EU:C:2003:206, paragraph 67), and of 21 October 2004, OHIM v Erpo Möbelwerk (C‑64/02 P, EU:C:2004:645, paragraph 39). 23 See judgment of 29 April 2004, Henkel v OHIM (C‑456/01 P and C‑457/01 P, EU:C:2004:258, paragraphs 45 and 46). 24 See point 75 of this Opinion. 25 See, in that regard, Chirulli, P., De Lucia, L., Non-Judicial Remedies and EU Administration, Chapter IV (‘Administrative review before the EU agencies’ Boards of Appeal’), 1st Edition, Abingdon, 2021, p. 134 et seq. 26 Judgment of 18 December 2008, Les Éditions Albert René v OHIM (C‑16/06 P, EU:C:2008:739, paragraph 123). 27 Judgment of 5 July 2011, Edwin v OHIM (C‑263/09 P, EU:C:2011:452, paragraph 72). 28 See, to that effect, Opinion of Advocate General Kokott in Edwin v OHIM (C‑263/09 P, EU:C:2011:30, point 99). 29 See, in that regard, Expert, H., Poullet, C., ‘Le pouvoir de réformation du juge de l’Union en matière de propriété intellectuelle’, Journal de droit européen, 2019, No 255, p. 3. 30 The General Court itself has recognised those requirements, as its recent case-law shows. See judgments of 11 September 2014, El Corte Inglés v OHIM – Baumarkt Praktiker Deutschland (PRO OUTDOOR) (T‑127/13, not published, EU:T:2014:767, paragraph 31), and of 6 October 2021, M/S. Indeutsch International v EUIPO – 135 Kirkstall (Representation of chevrons between two parallel lines) (T‑124/20, not published, EU:T:2021:668, paragraph 76). 31 As Advocate General Bobek explained in his Opinion in Apple and Pear Australia and Star Fruits Diffusion v EUIPO (C‑226/15 P, EU:C:2016:250, point 74), exercise of the power to alter decisions must, in principle, be limited to situations in which the General Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and law as established, what decision the Board of Appeal was required to take. 32 See, to that effect, Kur, A., von Bomhard, V., Albrecht, F., Markengesetz, Verordnung über die Unionsmarke – Kommentar, 37th Edition, Munich, 2014, Article 72, paragraph 72. 33 Judgment of 5 July 2011, Edwin v OHIM (C‑263/09 P, EU:C:2011:452, paragraph 71). 34 See point 71 et seq. of this Opinion. 35 See points 90, 91 and 93 of this Opinion.