Judgment — ECLI:EU:T:2016:338
Date: 2016-06-08
Language of the case: English
Court formation: Second Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded

summary of that reasoning which appears in paragraphs 17 to 20 above. The reason why the Board of Appeal did not provide a separate statement of reasons for the rejection of the request, which is set out in the application for restitutio in integrum and was repeated in the applicant’s additional written statement, to reinstate the application for registration of an EU trade mark on EUIPO’s register, was also because it dismissed in their entirety the application for restitutio in integrum and the appeal brought before it as having been brought before bodies that were not competent to deal with them, which did not require the repetition of the same explanations in respect of each of the requests arising out of them. 35 The plea alleging a failure to give a ruling and a failure to state reasons must therefore be rejected. It is appropriate to examine the third plea for annulment next. The plea alleging infringement of Article 81 of Regulation No 207/2009 36 According to the applicant, the Board of Appeal infringed Article 81 of Regulation No 207/2009, relating to the procedure for restitutio in integrum, by finding that it did not apply to the situation in which there is a request to reset the time limit for bringing an action before the General Court and by concluding that it was not competent to apply that provision in the present case. 37 Article 81(1) of Regulation No 207/2009 provides: ‘The applicant for or proprietor of an EU trade mark or any other party to proceedings before the Office who, in spite of all due care required by the circumstances having been taken, was unable to comply with a time limit vis-à-vis the Office shall, upon application, have his rights re-established if the obstacle to compliance has the direct consequence, by virtue of the provisions of this Regulation, of causing the loss of any right or means of redress.’ 38 The applicant submits that, by referring to ‘a time limit vis-à-vis the Office’, the legislature intended to refer to time limits ‘regarding’ EUIPO or ‘in relation to’ EUIPO. It maintains that the loss of the possibility of bringing an action before the General Court against a decision of a Board of Appeal owing to failure to comply with the time limit for bringing proceedings should thus be capable of being the subject of a procedure for restitutio in integrum, because EUIPO is concerned by such a time limit as the institution which adopted the challengeable decision and as a potential party to the case before the General Court. 39 The applicant takes the view that the expressions ‘vis-à-vis’, ‘regarding’ and ‘in relation to’ have the same meaning. It states that the starting point of the period in question, which is provided for in Regulation No 207/2009, is determined by a decision of EUIPO. It also states, referring to Article 64(3) of that regulation, that the expiry of that period without an action having been brought before the General Court has the result that that decision takes effect. In addition, it points out that Article 81(5) of that regulation, which sets out restrictions on the scope of the procedure for restitutio in integrum, does not refer to Article 65 of that regulation, which governs actions before the Courts of the European Union and, inter alia, defines the period for bringing an action. EUIPO is therefore, according to the applicant, concerned in various ways by the period for bringing an action before the General Court and a failure to comply with that time limit is capable of being the subject of an application for restitutio in integrum. 40 It must, however, be borne in mind that recital 12 of Regulation No 207/2009 states: ‘… It is … essential, while retaining the Union’s existing institutional structure and balance of powers, to provide for an Office for Harmonisation in the Internal Market (trade marks and designs) which is independent in relation to technical matters and has legal, administrative and financial autonomy. To this end it is necessary and appropriate that that Office should be a body of the Union having legal personality and exercising the implementing powers which are conferred on it by this Regulation, and that it should operate within the framework of Union law without detracting from the competencies exercised by the Union institutions.’ 41 As EUIPO points out, to acknowledge that one of its departments has the power to grant an application for restitutio in integrum as regards a time limit for bringing an action before the General Court would mean encroaching upon the jurisdiction of that court, which is the only court, subject to review by the Court of Justice, which may assess whether a case which has been brought before it is admissible, in accordance with Articles 256 and 263 TFEU. 42 In that regard, the provisions in those articles provide that the General Court is to review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties, subject to conditions for admissibility, relating in particular to the fact that the proceedings must be instituted within two months of the publication of the measure, or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. Admissibility is one of the criteria for an action which falls within the jurisdiction of the Court, particularly because it must examine it of its own motion, as the Court of Justice has pointed out, inter alia, in the order of 26 February 1981 in Farrall v Commission (10/81, ECR, EU:C:1981:60), or in the judgment of 23 April 1986 in Les Verts v Parliament (294/83, EU:C:1986:166, paragraph 19). 43 It is true that the fifth paragraph of Article 263 TFEU provides that acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them. However, in the present case, Article 65(5) of Regulation No 207/2009, which states that an action brought against a decision of a Board of Appeal is to be brought before the Court of Justice within two months of the date of notification of the decision of the Board of Appeal, is entirely consistent with the general scheme laid down in Article 263 TFEU so far as concerns the jurisdiction of the Court to assess whether the time limit for bringing an action has been complied with. 44 In that regard, it is apparent from the case file that the applicant brought an action before the General Court after becoming aware of the first decision and that, within that context, the General Court has already dealt with the question of compliance with the time limit for bringing the action against that decision before it. It declared the action to be out of time and therefore inadmissible. Since an appeal was lodged, that assessment could have been reconsidered, but, in any event, by the Courts of the European Union and not by EUIPO. Even if the Board of Appeal of EUIPO had allowed the application for restitutio in integrum, that would not in any event have been binding on the General Court in the assessment of whether the action brought before it against the first decision was belated or not. 45 It is not therefore Article 81 of Regulation No 207/2009 relating to restitutio in integrum which applies in circumstances where an action brought before the General Court against a decision of a Board of Appeal of EUIPO may be regarded as out of time by the Court, but the provisions applicable to the Court, namely, in addition to Article 263 TFEU, the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, according to which ‘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’. 46 Judicial procedure is not, moreover, from the outset divided into two parts, as is provided for in Article 81 of Regulation No 207/2009, with, first, an action being brought and, secondly, the filing of an application for restitutio in integrum on which the Court would rule separately in order to assess whether the action is admissible in the light of the time limit for bringing that action. It is within the very context of the proceedings initiated after an action has been brought that the admissibility of that action is in principle examined and it is only if a plea of inadmissibility requesting that the Court rule in that regard without going to the substance of the case is brought before the Court or if the Court raises, in that regard, of its own motion an absolute bar to proceeding, that it may give a separate ruling as to admissibility and then rule on the substance if it nevertheless accepts that the action is admissible. 47 Consequently, the applicant’s arguments based on considerations of vocabulary and on the fact that EUIPO is concerned in various ways by the period for bringing an action before the General Court cannot succeed. 48 The procedural provisions of Article 81 of Regulation No 207/2009 are themselves entirely consistent with the interpretation of Articles 256 and 263 TFEU set out in paragraphs 41 to 47 above. 49 Article 81 of Regulation No 207/2009 contains a paragraph 2 which states that the omitted act must be completed within the period for filing the application for restitutio in integrum, that is to say within two months from the removal of the obstacle to compliance with the time limit. Article 81(4) of that regulation states that ‘the department competent to decide on the omitted act shall decide upon the application’. The omitted act is the act which should have been carried out within the period that the application seeks to have reset and the aim of which is to secure a right or exercise a remedy. 50 In the present case, concerning an action before the General Court against a decision of a Board of Appeal of EUIPO, even if Article 81 of Regulation No 207/2009 were to be applicable, that would require, in the light of paragraphs 2 and 4 of that article, the omitted act, namely the action, to be effected within the two-month period from the removal of the obstacle to compliance which did not make it possible for it to be lodged earlier and, within the same period, the application for restitutio in integrum to be brought before the adjudicating body competent to decide on that action, namely the General Court. That does not correspond to the interpretation sought by the applicant and confirms above all that no department or adjudicating body of EUIPO may give a decision. 51 Furthermore, the finding in paragraph 45 above cannot be invalidated by the fact, pointed out by the applicant, that paragraph 5 of Article 81 of Regulation No 207/2009, which provides for exceptions to the application of that article in respect of certain time limits regarding proceedings before EUIPO, does not refer to the time limit for bringing an action before the General Court set out in Article 65 of that regulation. The explanation for the fact that that time limit is not referred to is that Article 81 of Regulation No 207/2009 does not, as a whole, apply to proceedings brought before the Courts of the European Union. It is true that, as the applicant also states, Article 82 of that regulation, entitled ‘Continuation of proceedings’, which relates to other situations of non-compliance with time limits ‘vis-à-vis’ EUIPO which are capable of being rectified, on the contrary refers expressly, in paragraph 2 thereof, among the provisions laying down a time limit which are excluded from its scope, to Article 65 of that regulation. However, that lack of consistency between the way in which the provisions of Articles 81 and 82 of Regulation No 207/2009 are set out does not, on the other hand, preclude the observation that, in both types of situation, provisions regarding time limits ‘vis-à-vis’ EUIPO cannot apply to time limits for bringing an action before the Courts of the European Union. 52 The Board of Appeal was therefore right in declaring itself not competent, like the Registry of the Boards of Appeal, to examine the application for restitutio in integrum filed by the applicant and the third plea must therefore be rejected. The other pleas 53 The finding made in paragraph 52 above is sufficient for the action, including the head of claim relating to the referral of the case back to EUIPO, to be dismissed, without it being necessary to examine the other two pleas put forward by the applicant, which are ineffective inasmuch as they are not capable, on the assumption that they are well founded, of resulting in the annulment of the contested measure. 54 The Board of Appeal dismissed the appeal against the letter from the Registry of the Boards of Appeal of 29 August 2014 as inadmissible. In that regard, it is sufficient that one of the grounds of inadmissibility set out by the Board of Appeal is well founded, as has been held to be the case in paragraph 52 above, for the present action against the contested decision not to be upheld (see, by analogy, as regards a number of grounds justifying a decision of the Commission, judgments of 6 November 1990 in Italy v Commission, C‑86/89, EU:C:1990:373, paragraph 20, and of 14 December 2005 in General Electric v Commission, T‑210/01, EU:T:2005:456, paragraphs 42 and 43, or, as regards a number of grounds of illegality set out by the General Court, judgment of 18 March 1993 in Parliament v Frederiksen, C‑35/92 P, EU:C:1993:104, paragraph 31, or, as regards the General Court having a number of grounds for dismissing an action, order of 24 January 1994 in Boessen v ESC, C‑275/93 P, EU:C:1994:20, paragraphs 25 and 26). 55 As regards, in particular, the applicant’s second plea, according to which the Board of Appeal allegedly infringed Article 65(5) of Regulation No 207/2009 by confirming that the date of notification of the first decision, to be used for the purpose of calculating the period for bringing an action before the General Court, was 20 December 2013, EUIPO is correct in stating, in essence, that that plea is ineffective in view of the reasoning of the Board of Appeal which resulted in the application for restitutio in integrum being dismissed as inadmissible. Costs 56 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1. Dismisses the action; 2. Orders Monster Energy Company to pay the costs. Martins Ribeiro Gervasoni Madise Delivered in open court in Luxembourg on 8 June 2016. [Signatures] * Language of the case: English.