ORDER OF THE PRESIDENT OF THE SIXTH CHAMBER OF THE GENERAL COURT
18 March 2021 (*)
(European Union design – Invalidity proceedings – Article 173(1) of the Rules of Procedure – Intervention of the other party to the proceedings before the Board of Appeal – Article 179 of the Rules of Procedure – Articles 58 and 60 of the Rules of Procedure – Calculation of time limits and extension on account of distance – Response lodged out of time – No excusable error – Rejection)
In Case T‑325/20,
Unger Marketing International LLC, established in Bridgeport, Connecticut (United States), represented by T. Huber and K. von Seydlitz-Brandl, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by S. Hanne, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Orben Wasseraufbereitung GmbH & Co. KG, established in Wiesbaden (Germany), represented by J. Schmidt, lawyer,
ACTION brought against the decision of the Third Board of Appeal of EUIPO of 26 February 2020 (Case R 740/2018‑3), relating to invalidity proceedings between Unger Marketing International and Orben Wasseraufbereitung,
THE PRESIDENT OF THE SIXTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Background and procedure
1        The applicant, Unger Marketing International LLC, is the holder of the European Union design filed with the European Union Intellectual Property Office (EUIPO) and registered on 10 October 2014 under No 2 555 425‑0002 pursuant to Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), intended to be applied to goods corresponding to ‘water purifiers’ in Class 23.01 of the Locarno Agreement establishing an International Classification for Industrial Designs of 8 October 1968, as amended.
2        On 28 September 2016, the other party to the proceedings before the Board of Appeal of EUIPO, Orben Wasseraufbereitung GmbH & Co. KG, filed an application under Article 52 of Regulation No 6/2002 for a declaration of invalidity relating to the design referred to in paragraph 1 above, on the basis of Article 25(1)(a) and (b) of that regulation.
3        By decision of 16 April 2018, the Invalidity Division declared that the contested design was invalid.
4        On 18 April 2018, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 55 to 60 of Regulation No 6/2002, seeking the annulment of the Invalidity Division’s decision.
5        By decision of 26 February 2020, the Third Board of Appeal of EUIPO upheld the Invalidity Division’s decision and dismissed the applicant’s appeal.
6        By application lodged at the Court Registry on 25 May 2020, the applicant brought an action seeking the 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 Orben Wasseraufbereitung GmbH & Co. KG by letter from the Registrar of the Court of 29 July 2020, of which it acknowledged receipt on 11 August 2020.
8        On 22 October 2020, Orben Wasseraufbereitung GmbH & Co. KG lodged a response at the Court Registry.
9        On 3 November 2020, the Court Registry found that Orben Wasseraufbereitung GmbH & Co. KG had not responded to the application within the prescribed period and, by way of a measure of organisation of procedure of 7 December 2020, invited Orben Wasseraufbereitung GmbH & Co. KG to submit its observations on the reasons for the late submission of its response.
10      On 7 January 2020, Orben Wasseraufbereitung GmbH & Co. KG replied to the Court that the lodgement of its response was not out of time and that it had been lodged in compliance with the relevant provisions of the Rules of Procedure relating to procedural time limits.
Law
11      In accordance with Article 173(1) of the Rules of Procedure, the parties to the proceedings before the Board of Appeal other than the applicant may participate, as interveners, in the proceedings before the Court by responding to the application in the manner and within the period prescribed.
12      As is recognised in the second paragraph of Article 53 of the Statute of the Court of Justice of the European Union, litigation in the field of intellectual property presents specific features which require derogation from certain provisions governing proceedings before the General Court. The specific provisions of Title IV of the Rules of Procedure concerning proceedings relating to intellectual-property rights have been adopted in order to take account of those specific features. To that end, inter alia, specific rules on interveners were adopted (see order of 7 December 2016, Claranet Europe v EUIPO – Claro (claranet), T‑129/16, not published, EU:T:2016:728, paragraph 8 and the case-law cited).
13      In the absence of any provisions in the Statute of the Court of Justice and the Rules of Procedure of the General Court expressly governing certain aspects of dealing with interventions in intellectual-property proceedings, the procedural provisions of Articles 19 and 144 of the Rules of Procedure must be applied by analogy (see orders of 18 March 2016, Sociedad agraria de transformación n° 9982 Montecitrus v OHIM – Spanish Oranges (MOUNTAIN CITRUS SPAIN), T‑495/15, not published, EU:T:2016:179, paragraph 9, and of 19 June 2019, Glimarpol v EUIPO – Metar (Pneumatic power tools), T‑748/18, not published, EU:T:2019:464, paragraph 9).
14      Under Article 19 of the Rules of Procedure, 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 General Court. The order must be reasoned if the application is dismissed.
15      As a preliminary point, it must be recalled that, in accordance with Article 179 of the Rules of Procedure, the parties to the proceedings other than the applicant are to lodge their responses to the application within two months of service thereof.
16      In that regard, Article 58(1)(b) of the Rules of Procedure provides that a time limit expressed in weeks, months or years shall end with the expiry of whichever day in the last week, month or year is the same day of the week, or falls on the same date, as the day during which the event or action from which the time limit is to be calculated occurred or took place.
17      Article 58(2) specifies that if that period would otherwise end on a Saturday, Sunday or official holiday, it is to be extended until the end of the first following working day.
18      By application of Article 60 of those rules, the procedural time limits are to be extended on account of distance by a single period of 10 days.
19      In the present case, it is common ground that Orben Wasseraufbereitung GmbH & Co. KG acknowledged receipt of the application on 11 August 2020, so that the period of two months laid down in Article 179 of the Rules of Procedure for lodging the response ended, pursuant to Article 58(1)(b) of those rules, at the end of 11 October thereafter.
20      In those circumstances, Orben Wasseraufbereitung GmbH & Co. KG had, in view of the single period of 10 days on account of distance, until 21 October 2020 to submit its response, that day being neither a Saturday, Sunday nor a public holiday.
21      As is apparent from paragraph 8 above, Orben Wasseraufbereitung GmbH & Co. KG lodged its response on 22 October 2020, that is to say, outside the prescribed period.
22      Orben Wasseraufbereitung GmbH & Co. KG submits, however, first, that since the two-month period available to it for lodging a response to the application, pursuant to Article 179 of the Rules of Procedure, ended on Sunday 11 October 2020, the expiry of that period should, in accordance with Article 58(2) of those Rules of Procedure, have been extended to the end of the following working day, that is to say, until the end of Monday 12 October, the date from which the single extension on account of distance of 10 days provided for in Article 60 of the Rules of Procedure should be added.
23      Although the Court of Justice held, in its order of 3 September 2020, STADA Arzneimittel v EUIPO (C‑174/20 P, EU:C:2020:651, paragraph 23), that the single extension on account of distance was not distinct from the procedural time limit, Orben Wasseraubereitung GmbH & Co. KG takes the view that that case-law is not applicable to the present case.
24      In its submission, in any event, since there are not two separate periods, it is appropriate, in accordance with the combined provisions of Articles 179 and 58 of the Rules of Procedure, to calculate the time limit for lodging a response in two stages, first, by determining the procedural time limit, in accordance with Article 58 of those rules, then, by extending that period by 10 days, in accordance with the extension on account of distance provided for in Article 60 of those rules.
25      It argues that that reasoning follows clearly and unambiguously from the very wording of Articles 58 and 60 of the Rules of Procedure, read in conjunction with Article 58(2) of those rules. That is so having regard, in particular, to the clarity of Article 60 in the German- and French-language versions of the Rules of Procedure.
26      Such an interpretation is confirmed, in its view, by a systematic reading of Section 4 of the Rules of Procedure, relating to time limits, and the reasons justifying the application of an extension on account of distance.
27      The arguments put forward by Orben Wasseraufbereitung GmbH & Co. KG having been briefly summarised, it must be pointed out that the Court of Justice has held that the single extension on account of distance provided for in Article 51 of the Rules of Procedure of the Court of Justice is not to be regarded as distinct from the period for bringing an action referred to in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union, which provides that an appeal may be brought within two months of notification of the decision appealed against, but, since it extends that period, as an integral part thereof. Thus, the Court of Justice held that it follows from that article, read in conjunction with Article 51 of its Rules of Procedure, that the period within which an appeal must be brought, failing which it will be deemed to be inadmissible, is two months and 10 days following notification of the decision appealed against (order of 3 September 2020, STADA Arzneimittel v EUIPO, C‑174/20 P, EU:C:2020:651, paragraph 23 and the case-law cited).
28      In addition, the Court of Justice stated that it also follows from Article 49(1)(b) of its Rules of Procedure that that period expires at the end of the day which, in the last month in which the period ends, bears the same number as the day from which time was set running, that is to say, the day of notification, a period to which is added the single period of 10 days on account of distance (see order of 3 September 2020, STADA Arzneimittel v EUIPO, C‑174/20 P, EU:C:2020:651, paragraph 25 and the case-law cited).
29      That case-law is, contrary to the submissions of Orben Wasseraufbereitung GmbH & Co. KG, transposable to the present case.
30      The time limit for bringing an appeal against a decision of the General Court closing the proceedings, laid down in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union, is a procedural time limit which is calculated in accordance with the rules laid down in Article 49 of the Rules of Procedure of that institution, in particular those set out in paragraph 1(b) of that article, since that period is expressed in months. The time limit for lodging a response to the application, referred to in Article 179 of the Rules of Procedure of the General Court, is a procedural time limit which is calculated in accordance with the procedure laid down in Article 58 of those rules, in particular those set out in paragraph 1(b) of that article, since that period is expressed in months. Those two procedural time limits are extended on account of distance by a single period of 10 days in respect of the period for lodging an appeal, in accordance with Article 51 of the Rules of Procedure of the Court of Justice and, as regards the period for lodging a response, in accordance with Article 60 of the Rules of Procedure of the General Court.
31      It is clear that Article 49(1)(b) of the Rules of Procedure of the Court of Justice is drafted in terms which are strictly identical to those of Article 58(1)(b) of the Rules of Procedure of the General Court. Similarly, Article 51 of the Rules of Procedure of the Court of Justice is drafted in terms which are strictly identical to those of Article 60 of the Rules of Procedure of the General Court.
32      Consequently, it must be concluded, in accordance with the case-law referred to in paragraph 27 above, that it follows from Article 179 of the Rules of Procedure of the General Court, read in conjunction with Article 60 of those rules, that the period within which the response was to be lodged in the present case, failing which it would be inadmissible, was two months and 10 days from service of the application. In accordance with the case-law referred to in paragraph 28 above, the period for lodging a response expired at the end of the day which, in the last month of the calculation of the period, bore the same number as the day of service of the application, namely 11 October 2020, extended on account of distance by a single period of 10 days.
33      In those circumstances, the fact, relied on by Orben Wasseraufbereitung GmbH & Co. KG, that the case-law cited by the Court of Justice in paragraph 23 of the judgment referred to in paragraph 27 above did not explicitly relate to the combined application of Article 49 of its Rules of Procedure (identical, as stated, to Article 58 of the Rules of Procedure of the General Court) and Article 51 of its Rules of Procedure (identical to Article 60 of the Rules of Procedure of the General Court) is irrelevant for the purposes of assessing the admissibility of the response in the present dispute, which, in any event, was to be lodged within two months and 10 days of service of the application. Moreover, the case-law of the Court of Justice referred to in paragraphs 27 and 28 above does indeed relate to the application of Articles 49 and 51 of its Rules of Procedure.
34      What is more, although Orben Wasseraufbereitung GmbH & Co. KG submits, in essence, that, in order to avoid any discrimination between the parties on account of the distance at which they are from the seat of the General Court, the last day of the procedural time limit, to which the single period of 10 days on account of distance must be added, should be a working day, it does not adduce any evidence to support its argument.
35      Furthermore, in that regard, it must be borne in mind that it follows from settled case-law that, since the extension on account of distance is not to be regarded as a separate period from the procedural time limit, but merely as an extension of it (orders of 20 November 1997, Horeca-Wallonie v Commission, T‑85/97, EU:T:1997:180, paragraph 26, and of 9 July 2013, Page Protective Services v EEAS, T‑221/13, not published, EU:T:2013:363, paragraph 10 and the case-law cited), Article 58(2) of the Rules of Procedure of the General Court, under which, when the period ends on a Saturday, Sunday, or an official holiday, it is to be extended to the end of the next working day, applies only where the total period, including the extension on account of distance, ends on a Saturday, Sunday, or an official holiday (order of 27 February 2019, Adis Higiene v EUIPO, C‑669/18 P, not published, EU:C:2019:147, paragraph 4 and the case-law cited; judgment of 16 November 2017, USFSPEI v Parliament and Council, T‑75/14, EU:T:2017:813, paragraph 57 and the case-law cited; order of 19 April 2016, Portugal v Commission, T‑550/15, not published, EU:T:2016:237, paragraph 46 and the case-law cited).
36      In the second place, in its reply to the measure of organisation of procedure, Orben Wasseraufbereitung GmbH & Co. KG nevertheless requested, in the event that the lodgement of the response were to be regarded as out of time, an extension of one day of the period for lodging that response, pursuant to the second sentence of Article 179 of the Rules of Procedure, according to which that period may, in exceptional circumstances, be extended by the President of the formation of the court hearing the case on the reasoned request of the party concerned.
37      It is common ground, however, that Orben Wasseraufbereitung GmbH & Co. KG did not request such an extension before that time limit expired.
38      Although the second sentence of Article 179 of the Rules of Procedure does not specify the period within which the application for an extension must be submitted, Article 69 of the Practice Rules for the Implementation of the Rules of Procedure, adopted pursuant to Article 224 of those rules, provides that ‘applications for extensions of time must be duly reasoned and be submitted in good time before the expiry of the time limit prescribed’. Orben Wasseraufbereitung GmbH & Co. KG was, moreover, duly informed by the Court Registry in its letter of 31 July 2020, accompanying the service of the application, that such a request had to be submitted in good time before the expiry of that time limit.
39      In any event, Orben Wasseraufbereitung GmbH & Co. KG has failed to establish the existence of exceptional circumstances. Indeed, it merely alleges ambiguity in the combined application of the provisions of Article 58(2) and Article 60 of the Rules of Procedure.
40      In that regard, it must be borne in mind that the rules on the time limits applicable in the present case do not pose any particular difficulty of interpretation (see, by analogy, order of 3 September 2020, STADA Arzneimittel v EUIPO, C‑174/20 P, EU:C:2020:651, paragraph 30 and the case-law cited) and that the combined application of those provisions is clear from the case-law cited in paragraph 35 above.
41      Accordingly, Orben Wasseraufbereitung GmbH & Co. KG cannot reasonably maintain that the ‘junction’ of those provisions raises difficulties in its application and, consequently, that such a circumstance is capable of constituting an exceptional circumstance capable of justifying an extension of time under Article 179 of the Rules of Procedure.
42      In the third place, Orben Wasseraufbereitung GmbH & Co. KG requested that the General Court apply the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, claiming that there were unforeseeable circumstances.
43      The second paragraph of Article 45 of the Statute of the Court of Justice of the European Union provides that no right is to 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.
44      In that regard, it must be borne in mind that, in accordance with the case-law, the concept of force majeure must be understood in the sense of unusual and unforeseeable circumstances beyond the trader’s control, the consequences of which could not have been avoided even if all due care had been exercised. The latter condition, which corresponds to the subjective element of unforeseeable circumstances or force majeure, involves the obligation, on the part of the party concerned, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices (see order of 4 May 2016, Monster Energy v EUIPO, C‑602/15 P, not published, EU:C:2016:331, paragraph 35 and the case-law cited). In particular, the trader must pay close attention to the course of the procedure set in motion and, in particular, demonstrate adequate diligence in order to comply with the prescribed time limits. Those concepts do 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 (see order of 11 June 2020, GMPO v Commission, C‑575/19 P, not published, EU:C:2020:448, paragraph 34 and the case-law cited).
45      In the present case, Orben Wasseraufbereitung GmbH & Co. KG does not, strictly speaking, rely on the existence of unforeseeable circumstances or of force majeure but, in order to show the existence of unforeseeable circumstances, relies on circumstances which led it to make an excusable error in the assessment of the applicable time limits.
46      Orben Wasseraufbereitung GmbH & Co. KG submits, in essence, first, that it cannot be criticised for having failed to have regard to the interpretation of the provisions relating to the applicable time limit resulting from the order of 3 September 2020, STADA Arzneimittel v EUIPO (C‑174/20 P, EU:C:2020:651), since it was only reasonable for it to calculate the time limits for lodging the response as soon as the application had been served on it.
47      Second, in view of the ambiguity of Articles 58 and 60 of the Rules of Procedure, it cannot be criticised for having lodged its response out of time without its right to effective judicial protection being infringed.
48      As a preliminary point, it is important to note that it is clear from the case-law of the Court of Justice that, under EU rules on time limits for bringing proceedings, the concept of excusable error must be strictly construed and relates only to exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either in itself or to a significant extent, such as to give rise to understandable confusion on the part of a party acting in good faith and exercising all the diligence required of a normally experienced trader (see order of 11 June 2020, GMPO v Commission, C‑575/19 P, not published, EU:C:2020:448, paragraph 36 and the case-law cited).
49      A decision of the Court of Justice, irrespective of the date of its adoption, cannot, in any event, constitute an exceptional circumstance, within the meaning of the case-law cited in paragraph 48 above, capable of justifying the exceeding of the applicable procedural time limits. In addition, Orben Wasseraufbereitung GmbH & Co. KG does not claim that it was not in a position to acquaint itself with such case-law, which came into being more than one month before the expiry of the applicable time limits for lodging its response. Moreover, it should be noted that that case-law merely reproduces earlier case-law, with the result that Orben Wasseraufbereitung GmbH & Co. KG was able, from the time of service of the application, correctly to interpret and apply the provisions relating to the time limits applicable.
50      As regards, next, the alleged lack of clarity of Articles 58 and 60 of the Rules of Procedure, it must be noted, first of all, that, in paragraph 16 of its response to the measure of organisation of procedure, Orben Wasseraufbereitung GmbH & Co. KG claims, inter partes, that its interpretation of Articles 58 and 60 of the Rules of Procedure follows directly and unambiguously from the very wording of those provisions, relying in that regard on both the French- and German-language versions of those rules.
51      That being said, it must be borne in mind, as has already been made clear in paragraph 40 above, that the rules on the time limits applicable in the present case do not give rise to any particular difficulty of interpretation, so that it cannot be accepted that this is a case of excusable error on the part of the appellant, justifying derogation from the strict application of the abovementioned rules (see, by analogy, order of 3 September 2020, STADA Arzneimittel v EUIPO, C‑174/20 P, EU:C:2020:651, paragraph 30 and the case-law cited).
52      Accordingly, Orben Wasseraufbereitung GmbH & Co. KG cannot validly claim, in so far as its argument is based on a false premiss, that it would be deprived of the exercise of its right to judicial protection if, in view of the alleged lack of clarity of the applicable provisions on time limits, the lodgement of its response were to be regarded as out of time.
53      Moreover, it is appropriate to state that that right is in no way undermined by the strict application of EU rules concerning procedural time limits which, according to settled case-law, meets the requirements of legal certainty and the need to avoid all discrimination or arbitrary treatment in the administration of justice (see order of 17 May 2002, Germany v Parliament and Council, C‑406/01, EU:C:2002:304, paragraph 20 and the case-law cited).
54      It follows from the foregoing that, in accordance with Article 173(1) of the Rules of Procedure, since Orben Wasseraufbereitung GmbH & Co. KG did not lodge its response to the application within the prescribed period, establish the existence of unforeseeable circumstances or force majeure, or make any excusable error, it may not participate in the proceedings before the Court and that the response which it lodged out of time is inadmissible.
Costs
55      Since Orben Wasseraufbereitung GmbH & Co. KG did not respond to the application in the proper form and within the time limits prescribed, it has not become an intervener before the Court. In accordance with Article 173(2) of the Rules of Procedure, it is to bear its own costs in relation to the procedural documents lodged by it.
On those grounds,
THE PRESIDENT OF THE SIXTH CHAMBER OF THE GENERAL COURT
hereby orders:
1.      Orben Wasseraufbereitung GmbH & Co. KG is not granted leave to participate in the proceedings in Case T‑325/20 as an intervener pursuant to Article 173(1) of the Rules of Procedure of the General Court.
2.      Orben Wasseraufbereitung GmbH & Co. KG shall bear its own costs.
Luxembourg, 18 March 2021.
E. Coulon
A. Marcoulli
Registrar
President
*      Language of the case: English.