ORDER OF THE GENERAL COURT (Second Chamber)
21 March 2019 (*)
(Community design — Article 173(1) of the Rules of Procedure — Intervention by the other party to the proceedings before the Board of Appeal — Response lodged out of time — Rejection)
In Case T‑532/18,
Aroma Essence Ltd, established in Kazanlak (Bulgaria), represented by A. Nastev, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas and H. O’Neill, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Refan Bulgaria OOD, established in Trud (Bulgaria),
ACTION brought against the decision of the Third Board of Appeal of EUIPO of 19 July 2018 (Case R 1197/2017‑3), relating to invalidity proceedings between Aroma Essence Ltd and Refan Bulgaria OOD,
THE GENERAL COURT (Second Chamber),
composed of M. Prek, President, F. Schalin and M.J. Costeira (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
1        Refan Bulgaria OOD is the holder of the Community design registered under number 1333223-0001, filed with the European Union Intellectual Property Office (EUIPO) on 29 April 2012 pursuant to Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), in respect of ‘washing sponges, soap’ (‘the contested design’).
2        The contested design is represented in the following coloured view:
3        On 13 September 2016, the applicant, Aroma Essence Ltd, filed an application for a declaration of invalidity relating to the contested design pursuant to Article 52 of Regulation No 6/2002.
4        As the Invalidity Division declared the contested design invalid, the other party to the proceedings before the Board of Appeal brought an appeal before EUIPO pursuant to Articles 55 to 60 of Regulation No 6/2002 against the decision of the Invalidity Division.
5        By decision of 19 July 2018, the Third Board of Appeal of EUIPO annulled that decision of the Invalidity Division.
6        By application lodged at the Court Registry on 10 September 2018, the applicant brought an action for annulment of the decision of the Board of Appeal.
7        In accordance with Article 178(3) of the Rules of Procedure of the General Court, the application was served on Refan Bulgaria OOD by letter from the Registrar of the General Court of 8 October 2018, receipt of which was acknowledged by Refan Bulgaria OOD on 22 October 2018.
8        Under Article 173(1) of the Rules of Procedure, a party to the proceedings before the Board of Appeal other than the applicant may participate, as intervener, in the proceedings before the Court by responding to the application in the manner and within the time limit prescribed.
9        Article 179 of the Rules of Procedure states that EUIPO and the other party to the proceedings before the Board of Appeal have a time limit of two months from the service of the application to submit their response.
10      That time limit is extended on account of distance by a single period of 10 days pursuant to Article 60 of the Rules of Procedure.
11      In the present case, the period within which Refan Bulgaria OOD was required to submit a response expired on 2 January 2019. It did not submit any reasoned request for an extension of that period.
12      Refan Bulgaria OOD sent its response to the Court Registry via the e-Curia application on 13 January 2019.
13      In the present case, it must be held that the response of Refan Bulgaria OOD was lodged out of time.
14      Under Article 19 of the Rules of Procedure, read in conjunction with Article 144(5) and (6) thereof, the President is to decide on the application to intervene by order or must refer the decision to the Court. The order must be reasoned if the application is refused.
15      The President of the Second Chamber of the General Court referred to the Chamber the question whether, in the present case, Refan Bulgaria OOD may be granted leave to participate in the proceedings before the Court as intervener under Article 173(1) of the Rules of Procedure.
16      According to the case-law, the time limits set by Article 179 of the Rules of Procedure are mandatory and, compliance therewith being a matter of public policy, are not within the discretion of either the parties or even the Court (see, by analogy, order of 10 November 2011, Stichting Regionaal Opleidingencentrum van Amsterdam v OHIM — Investimust (COLLEGE), T‑165/11, not published, EU:T:2011:654, paragraph 19 and the case-law cited).
17      Consequently, Refan Bulgaria OOD cannot be granted leave to participate in the proceedings in Case T‑532/18 as intervener under Article 173(1) of the Rules of Procedure.
Costs
18      Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the judgment or order which closes the proceedings. Since the present order closes the proceedings as far as Refan Bulgaria OOD is concerned, a decision must be given on the costs relating to its intervention.
19      As the present order has been adopted before the parties could have incurred costs associated with the procedural activity of Refan Bulgaria OOD, it is sufficient to decide that the latter must bear its own costs.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1.      Refan Bulgaria OOD is refused leave to participate in the proceedings in Case T‑532/18 as intervener under Article 173(1) of the Rules of Procedure of the General Court.
2.      Refan Bulgaria OOD shall bear its own costs.
Luxembourg, 21 March 2019.
E. Coulon
M. Prek
Registrar
President
*      Language of the case: English.