Judgment — ECLI:EU:T:2016:569
Date: 2016-09-28
Language of the case: English
Court formation: Sixth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: Portugal

summary form, coherently and intelligibly in the application itself (see order of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1993:39, paragraph 20 and the case-law cited). 43 More specifically, whilst it should be acknowledged, first, that the statement of the pleas in law in the application need not conform with the terminology and layout of the Rules of Procedure and, second, that those pleas may be expressed in terms of their substance rather than of their legal classification, the application must nonetheless set out those pleas with sufficient clarity. Moreover, a mere abstract statement of the pleas in law in the application does not satisfy the requirements of the Statute of the Court of Justice of the European Union or the Rules of Procedure, and the expressions ‘brief statement of the pleas in law’ and ‘summary of those pleas in law’ used therein mean that the application must specify on what pleas the action is based (see order of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1993:39, paragraph 21 and the case-law cited). 44 In the present case, it is apparent from the application that the subject matter of the second plea in law is clearly defined, in that it seeks annulment of the contested decision and alleges infringement of Article 21, Article 41(1) and Article 47 of the Charter of Fundamental Rights and of Article 18 TFEU. It thus follows from the application that, by that plea, the applicant submits, in essence, that the contested decision is vitiated by an infringement of the aforementioned provisions, in that, first, the Board of Appeal disregarded her right to an effective remedy and a fair hearing and, second, EUIPO infringed the principle of non-discrimination on grounds of nationality. Accordingly, that plea in law is set out in the application with sufficient clarity and, consequently, the objection of inadmissibility must be dismissed as unfounded. Substance 45 In support of the second plea in law, the applicant argues, first, that the Board of Appeal disregarded her right to an effective remedy and a fair trial by refusing to examine the documents received on 21 May 2014 and, second, that EUIPO infringed the principle of non-discrimination on grounds of nationality, in that the parties established, like EUIPO, in Spain, enjoy an advantage over the parties established in other Member States or in third States, owing to the shorter delivery times for letters sent via the Spanish post. 46 EUIPO disputes the applicant’s arguments. 47 First of all, it should be borne in mind that the Court has excluded the possibility of relying on the right to a fair ‘trial’ in proceedings before the Boards of Appeal of EUIPO, since proceedings before the Boards of Appeal are administrative and not judicial in nature (see, to that effect, judgment of 11 July 2013, Metropolis Inmobiliarias y Restauraciones v OHIM — MIP Metro (METRO), T‑197/12, not published, EU:T:2013:375, paragraph 54 and the case-law cited). 48 Next, regarding the right to an effective remedy, it should be noted that the Opposition Division’s decision constitutes a decision regarding the admissibility of the opposition that may be either revoked under the conditions laid down in Article 80 of Regulation No 207/2009 or annulled in the context of an appeal brought under Article 58 of that regulation. 49 It follows from the above considerations that the EU legislature has provided mechanisms to enable the opponent to contest the decision by which EUIPO has found the opposition inadmissible (see, to that effect and by analogy, judgment of 18 October 2012, Jager & Polacek v OHIM, C‑402/11 P, EU:C:2012:649, paragraph 69). 50 Thus, it is evident that the applicant’s right to an effective remedy is protected both by the revocation mechanism laid down in Article 80 of Regulation No 207/2009 and by the appeal mechanism laid down in Article 58 of that regulation. 51 Lastly, regarding the assertion that EUIPO infringed the principle of non-discrimination on grounds of nationality, in order to reject that assertion it is sufficient to note that EUIPO rejected the opposition brought by the applicant purely on the ground that the documents submitted in support of that opposition had been submitted after the expiry of the period prescribed for that purpose. As that fact is entirely unrelated to the applicant’s nationality or her place of establishment, EUIPO cannot be accused of having treated the applicant, whose responsibility it was to take account of the likely delivery time for the documents in question, differently from other operators established in other Member States or in third States, on the basis of her nationality. In any event, establishment in a Member State or a third State distant from EUIPO’s headquarters is not capable of placing a party in an objectively different situation, for the purposes of applying the period prescribed by EUIPO pursuant to Rule 19(1) of Regulation No 2868/95 for submitting documents, from that of another party established in the Member State in which EUIPO is located. Indeed, regardless of its place of residence or establishment, it is for each party to proceedings before EUIPO to take account of postal delivery times when sending items which must be received within a certain period. 52 In any event, it should be borne in mind that the applicant also had the possibility, under Rule 79 of Regulation No 2868/95, of sending EUIPO proof of the existence, validity and scope of protection of her earlier trade mark by personal delivery, by fax or by any other means, including electronically, so that an alleged discrimination on grounds of nationality, connected with the delivery times for communications sent by post, is excluded. 53 Accordingly, the second plea in law must be rejected. 54 Having regard to all of the foregoing, the action must be dismissed. Costs 55 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 56 Since the applicant has been unsuccessful, she must be ordered to pay the costs, in accordance with the form of order sought by EUIPO. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders Ana Isabel Pinto Eliseu Baptista Lopes Canhoto to pay the costs. Frimodt Nielsen Collins Valančius Delivered in open court in Luxembourg on 28 September 2016. [Signatures] * Language of the case: English.