Order — ECLI:EU:T:2015:64
Date: 2015-01-22
Language of the case: German
Court formation: Second Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - inadmissible
Origin: Germany

Summary — Order of the General Court (Second Chamber), 22 January 2015 1. Community trade mark — Procedural provisions — Notification — Notification by fax — Calculation of time-limits — Date of receipt (Commission Regulation No 2868/95, Art. 1, Rules 61(2), 65(1), and 70(2)) 2. Procedure — Time-limit for instituting proceedings — Claim barred by lapse of time — Unforeseeable circumstances or force majeure — Concept composed of objective and subjective elements — Limits (Statute of the Court of Justice, Art. 45, second para.) 3. Judicial proceedings — Time-limit for producing evidence — Article 48(1) of the Rules of Procedure of the General Court — Scope — New offers of evidence brought at the stage of observations on the objection of inadmissibility or of the reply limited to the question of admissibility — Admissibility (Rules of Procedure of the General Court, Art. 48(1)) 1. Rule 61(2) of Regulation No 2868/95, implementing Regulation No 40/94 on the Community trade mark, as amended, provides that notifications to be made by OHIM may be effected by fax. Notification by fax may be employed for any OHIM decision, and thus also includes decisions of the boards of appeal. Rule 65(1) of Regulation No 2868/95, headed ‘Notification by [fax] and other technical means’, states that ‘[n]otification shall be deemed to have been taken place on the date on which the communication was received by the [fax machine] of the recipient’. Rule 70(2) of Regulation No 2868/95, entitled ‘Calculation of time-limits’, provides that ‘[w]here that procedural step is a notification, the event considered [to set time running] shall be the receipt of the document notified, unless otherwise provided’. The case-law draws a distinction between, first, the transmission of a document to the addressee, which is required for due notification, and, secondly, effective knowledge of that document, which is not required for the notification to be regarded as a due notification. According to that case-law, the validity of a notification to the addressee is in no way conditional on its having been actually brought to the notice of the person competent to deal with it under the internal rules of the entity addressed. Due notification of a decision has been effected once it has been communicated to the addressee and the addressee is in a position to take cognisance of it. Thus, in order to assess the validity of a notification, only its external aspect is taken into consideration, that is to say, due transmission to the addressee, rather than its internal aspect, which concerns the internal functioning of the entity addressed. It follows that, in order to determine the date of receipt of a notification, account should be taken only of the external aspect of the notification, that is to say, whether it was received in a formal and proper manner by the entity addressed, irrespective of whether that entity effectively received and took cognisance of the notification. That conclusion is not called into question by the requirement established in the case-law under which due notification requires the addressee to be in a position to take cognisance of it. That requirement places an obligation on the notifier to create the conditions necessary for the addressee to effectively take cognisance of the notification, that is to say, an obligation to use best endeavours (which corresponds with the external aspect of the notification) rather than an obligation on the notifier to interfere in the internal functioning of the entity addressed in order to ensure it has actually taken cognisance of the notification, that is to say, an obligation to achieve a specific result (which corresponds with the internal aspect of the notification). The General Court has thus held that the production, by OHIM, of fax transmission reports which included items conferring probative value on them was sufficient to prove that the fax in question had been received by the addressee. Fax machines are designed so that any transmission or reception problem is reported by an error message which informs the sender of the exact reason for the non-receipt, as communicated to that fax machine by the addressee’s fax machine. Where there is no communication of such a problem, a message indicating effective transmission is generated. Thus, where there has been no error message and there is a transmission report stating the word ‘OK’, it can be considered that the fax sent has been received by the addressee. Furthermore, if only actual knowledge of the fax at issue were sufficient to prove that it had been received by the representative of the applicant, even where a decision had been duly notified to the addressee, it would be impossible for OHIM to adduce evidence of effective notification of the decision and of the date on which it had been received by the addressee. The starting point of the period prescribed for instituting proceedings against a decision of an OHIM board of appeal would depend on fortuitous circumstances, unrelated to the diligence with which OHIM notified the decision, whereas the specific purpose of establishing time-limits for instituting proceedings is to establish legal certainty. (see paras 14, 15, 19-22) 2. Time-limits for appeals are a matter of public policy. In accordance with the second paragraph of Article 45 of the Statute of the Court, 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. The concepts of unforeseeable circumstances and force majeure contain both an objective element, relating to abnormal circumstances unconnected to the applicant, and a subjective element involving the obligation, on the part of the applicant, to guard against the consequences of the abnormal event by taking appropriate steps, without making unreasonable sacrifices. In particular, the applicant must pay close attention to the course of the procedure set in motion and, amongst other things, act diligently in order to comply with the prescribed time-limits. Thus, the concept of force majeure does not apply to a situation in which, objectively, a diligent and prudent person would have been able to take the necessary steps before the expiry of the period prescribed for instituting proceedings. As regards the objective element of the unforeseeable circumstances or force majeure, it must be held that even though the malfunction of the fax machine of the applicant’s representative can be categorised as an ‘abnormal circumstance’, within the meaning of the case-law cited above, it is not ‘unconnected’ to the representative. The machine in question is an internal instrument of the law firm representing the applicant and that law firm is responsible for the machine, in the same way as it is responsible for its employees. According to settled case-law, a company’s internal communication problems do not constitute unforeseeable circumstances or force majeure. It has even been held that an error attributable to a third party appointed by a law firm to carry out acts which are the responsibility of that law firm, does not constitute a circumstance unconnected to the applicant which is represented by that law firm. Accordingly, even if the law firm representing the applicant had appointed an external company to manage its information technology and fax equipment, the malfunction of that instrument would not be regarded as a circumstance unconnected to that law firm. The claim that that was the first occurrence of the type of malfunction at issue and that it was therefore unforeseeable, does not make this a circumstance unconnected to the representative of the applicant. At the most, that unpredictability could play a role in assessing whether the party concerned could have prevented the malfunction of the fax machine from occurring and, accordingly, may play a role in the analysis of the subjective element of the unforeseeable circumstances or force majeure. (see paras 26, 27, 32-34) 3. The prohibition on submitting offers of evidence out of time, laid down by Article 48(1) of the Rules of Procedure, does not apply to offers of evidence in observations on a plea of inadmissibility or to those contained in the reply in response to allegations of inadmissibility contained in the defence. The option to submit new offers of evidence in observations on a plea of inadmissibility must be regarded as inherent to the right of an applicant to respond to the arguments made by the defendant in its plea of inadmissibility since there is no procedural rule which requires an applicant to set out evidence relating to the admissibility of its action at the stage of the application. (see para. 30)