ORDER OF THE COURT (Chamber determining whether appeals may proceed)
16 September 2019(*)
(Appeal — EU trade mark — Article 170b of the Court’s Rules of Procedure — Request failing to demonstrate a significant issue of law with respect to the unity, consistency or development of EU law — Appeal not allowed to proceed)
In Case C‑421/19 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 29 May 2019,
Primed Halberstadt Medizintechnik GmbH, established in Halberstadt (Germany), represented by R. Ingerl, Rechtsanwalt,
appellant,
the other parties to the proceedings being:
Prim, SA, established in Móstoles (Spain), represented by L. Broschat García, abogada,
applicant at first instance,
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
THE COURT (Chamber determining whether appeals may proceed),
composed of R. Silva de Lapuerta, Vice-President of the Court, K. Jürimäe and N. Piçarra, Judge-Rapporteur,
Advocate General: M. Szpunar,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General,
makes the following
Order
1        By its appeal, Primed Halberstadt Medizintechnik asks the Court to set aside
the judgment of the
General Court
of
20 March 2019, Prim v EUIPO — Primed Halberstadt Medizintechnik (PRIMED) (T‑138/17, not published, EU:T:2019:174), whereby
the General Court annulled
the decision of the Fourth
Board of Appeal
of the
European Union Intellectual Property Office (EUIPO) of 19 December 2016 (Joined Cases R 2494/2015-4 and R 163/2016-4), in relation to cancellation proceedings between Prim and Primed Halberstadt Medizintechnik.
Whether the appeal should be allowed to proceed
2        Pursuant to the first paragraph of Article 58a of the Statute of the Court of Justice of the European Union, an appeal brought against a decision of the General Court concerning a decision of an independent Board of Appeal of EUIPO is not to proceed unless the Court first decides that it should be allowed to do so.
3        In accordance with the third paragraph of Article 58a of that Statute, an appeal is to be allowed to proceed, wholly or in part, in accordance with the detailed rules set out in the Court’s Rules of Procedure, where it raises an issue that is significant with respect to the unity, consistency or development of Union law.
4        Under
Article 170a(1) of the Rules of Procedure, in the situations referred to in the first paragraph of Article 58a of the Statute of the Court of Justice of the European Union,
the appellant is to annex to the appeal a request that the appeal be allowed to proceed, setting out the issue raised by the appeal that is significant with respect to the unity, consistency or development of European Union law and containing all the information necessary to enable the Court of Justice to rule on that request.
5        In accordance with Article 170b(3) of those rules, the Court is to rule on the request that the appeal be allowed to proceed in the form of a reasoned order.
6        In this case, in support of its request that the appeal be allowed to proceed, the appellant argues, first, that Article 58a of the Statute of the Court of Justice of the European Union
is inapplicable ratione temporis
and, second, that its right to have its case handled impartially and fairly, as laid down in Article 41(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), has been infringed.
7        As regards the first
argument, the
appellant
argues that
the application of
Article 58a of the Statute of the Court of Justice of the European Union
to appeals
brought after
1 May 2019 against decisions of
the General Court
delivered before that date is a breach of the
right to
an effective remedy before a court
laid down in
Article 47
of the Charter, read in conjunction with the principles of
legal certainty and
the protection of legitimate expectations. The appellant
claims,
in particular,
that the conditions governing the admissibility
of an appeal against
a judicial decision must be in force and be
known to the parties at least on the date when
that decision is delivered.
8        In the first place, it must be recalled that the
admissibility of an action
must be determined
on the basis
of the rules in force
on the date
when that action
was brought (see, to that effect, judgments of
8 May 1973, Campogrande v Commission, 60/72, EU:C:1973:50, paragraph 4
and, by analogy, of
24 October
2013, Deutsche Post v Commission, C‑77/12 P, not published, EU:C:2013:695, paragraph 65). The procedure that is the subject of
Article 58a of the Statute of the Court of Justice of the European Union was in force
when the
appellant
brought its appeal.
9        Further, the scope of the principles of legal certainty and the protection of legitimate expectations cannot be extended to the point of generally preventing new rules from applying to the future effects of situations which arose when the earlier rules applied (see, to that effect, judgment of
3 September 2015, A2A, C‑89/14, EU:C:2015:537, paragraphs 37
and 38).
10      It follows from the foregoing that, contrary to what is asserted by the
appellant
in its first argument, Article 58a of the Statute of the Court of Justice of the European Union
is applicable in this case.
11      As regards the
second argument, the
appellant
claims that the General Court, in holding that
the Fourth Board of Appeal
of EUIPO had
infringed the
right to be heard of the
applicant
at first instance, infringed
the
appellant’s right
to sound administration, in particular
its
right to have its case handled impartially and fairly as laid down in
Article 41(1)
of the Charter.
12      In this case, the General Court
held that that Board of Appeal, in finding that
there was no genuine use
of the earlier marks
in a period that had not been
discussed by
the parties, infringed the
right to be heard of the
applicant
at first instance.
13      In that
regard, the arguments
submitted by the
appellant
fail to establish
that the error of law
which, according to the appellant, vitiates the judgment under appeal
raises
an issue that is significant with respect to the unity, consistency or development of EU law,
within the meaning of the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union, capable of
justifying a decision to allow the
appeal to proceed.
14      Without prejudice to the significant place occupied, within the EU legal order, by the right to impartial and fair treatment
and the right
to be heard,
it is clear that
the
appellant
fails to demonstrate
how
the infringement of its
right to impartial and fair treatment
laid down in
Article 41(1) of the Charter,
even if it were
established, raises an issue that is significant with respect to the unity, consistency or development of EU law.
15      In the light of the foregoing considerations, the request that the appeal be allowed to proceed must be dismissed.
Costs
16      Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings.
17      In this case, since the present order is adopted before the appeal is served on the other parties to the proceedings and, therefore, before they could have incurred costs, it is appropriate to decide that the appellant is to bear its own costs.
On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:
1.      The appeal is not allowed to proceed.
2.      Primed Halberstadt Medizintechnik GmbH shall bear its own costs.
Luxembourg, 16 September 2019.
A. Calot Escobar
R. Silva de Lapuerta
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.