ORDER OF THE GENERAL COURT (Sixth Chamber)
19 June 2019 (*)
(Community design — Invalidity proceedings — Article 173 of the Rules of Procedure of the General Court — Intervention by the other party to the proceedings before the Board of Appeal — Application for leave to intervene lodged after the expiry of the time limit set for the submission of the response — No force majeure — Rejection)
In Case T‑748/18,
Glimarpol sp. z o.o., established in Bytom (Poland), represented by M. Kondrat, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by A. Folliard-Monguiral and H. O’Neill, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Metar sp. z o.o., established in Gliwice (Poland), represented by R. Skubisz and M. Mazurek, lawyers,
ACTION brought against the decision of the Third Board of Appeal of EUIPO of 4 October 2018 (Case R 1615/2017-3), relating to invalidity proceedings between Metar sp. z o.o. and Glimarpol sp. z o.o.,
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis, President, D. Spielmann (Rapporteur) and Z. Csehi, Judges,
Registrar: E. Coulon,
makes the following
Order
1        The applicant, Glimarpol sp. z o.o, is the proprietor of the Community design filed with the European Union Intellectual Property Office (EUIPO) and registered under number 2125435-0001, pursuant to Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1) for products defined as ‘pneumatic power tools’.
2        On 16 May 2016, Metar sp. z o.o. filed, pursuant to Article 52 of Regulation No 6/2002, an application for a declaration of invalidity of the contested design, based on Article 25(1)(b) of Regulation No 6/2002.
3        Since the application for a declaration of invalidity was allowed by the Cancellation Division on 22 May 2017, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 55 to 60 of Regulation No 6/2002, against the decision of the Cancellation Division.
4        By decision of 4 October 2018, the Third Board of Appeal of EUIPO dismissed the appeal.
5        By application lodged at the Registry of the General Court on 21 December 2018, the applicant brought the present action for annulment of the decision of the Board of Appeal.
6        In accordance with Article 178(3) of the Rules of Procedure of the General Court, the application was served on Metar sp. z o.o., by letter from the Registrar of the General Court of 16 January 2019.
7        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 General Court by responding to the application in the manner and within the period prescribed.
8        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. One such feature is the fact that such litigation involves, so far as opposition proceedings are concerned, disputes between private persons. To that end, specific rules on interveners, in particular, were adopted (see, to that effect, orders of 18 March 2016, Sociedad agraria de transformación No 9982 Montecitrus v OHIM — Spanish Oranges (MOUNTAIN CITRUS SPAIN), T‑495/15, not published, EU:T:2016:179, paragraph 8 and the case-law cited, and of 7 December 2016, Claranet Europe v EUIPO — Claro (claranet), T‑129/16, not published, EU:T:2016:728, paragraph 8).
9        In the absence of any provisions in the Statute of the Court of Justice and the Rules of Procedure 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 order of 18 March 2016, MOUNTAIN CITRUS SPAIN, T‑495/15, not published, EU:T:2016:179, paragraph 9 and the case-law cited).
10      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 General Court. The order must be reasoned if the application is dismissed.
11      In the present case, the President of the Sixth Chamber of the General Court referred to the Chamber the question of whether Metar sp. z o.o. may, as it requests, be granted leave to participate in the proceedings before the General Court as intervener under Article 173(1) of the Rules of Procedure.
12      In that regard, it must be noted that Article 179 of the Rules of Procedure provides:
‘The defendant and the parties to the proceedings before the Board of Appeal other than the applicant shall submit their responses to the application within a time limit of two months from the service of the application. That time limit may, in exceptional circumstances, be extended by the President at the reasoned request of the party concerned.’
13      The time limit referred to in the previous paragraph is to be extended on account of distance by a single period of 10 days, in accordance with Article 60 of the Rules of Procedure.
14      In the present case, the period within which Metar sp. z o.o. was required to submit a response expired on 2 April 2019.
15      On 4 April 2019, Metar sp. z o.o. sent to the Registry of the General Court a letter by which it requested the General Court, first, to extend the time limit for submission of the response in accordance with the possibility provided for in Article 179 of the Rules of Procedure and, second and in the alternative, to grant its application for leave to intervene under Article 143 of the Rules of Procedure.
16      For the purposes of its primary request to be granted leave to intervene under Article 173 of the Rules of Procedure, the applicant relies on the existence of exceptional circumstances. It explains that, in spite of several attempts, it was not able to contact its previous representative and that, consequently, it was not able to obtain information on the state of play of the present proceedings and on whether it was possible or necessary to take appropriate action. The applicant also indicates that, once the termination of the mandate of that representative had been notified, the applicant took all steps to appoint new representatives for the purposes of its participation in these proceedings.
17      According to the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, which applies to proceedings before the General Court by virtue of Article 53 thereof, 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.
18      In that regard, the strict application of procedural rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice. Therefore, 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 (see judgment of 22 September 2011, Bell & Ross v OHIM, C‑426/10 P, EU:C:2011:612, paragraph 43 and the case-law cited).
19      Thus, the concept of force majeure must be understood in the sense of unusual and unforeseeable circumstances beyond the operator’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. Sufficient diligence requires continuous action aimed at identifying and assessing potential risks and the ability to take appropriate and effective steps in order to avoid them (see order of 4 May 2016, Monster Energy v EUIPO, C‑603/15 P, not published, EU:C:2016:332, paragraph 35 and the case-law cited).
20      In the present case, Metar sp. z o.o. relies, in essence, on difficulties communicating with its previous representative. It states that, in spite of the various attempts to contact that representative, it was not able to obtain information on the progress of these proceedings and thus was not able to take the necessary action in time in order to defend its rights.
21      Such circumstances cannot, however, be classified as exceptional circumstances constituting unforeseeable circumstances or force majeure. The communication difficulties between Metar sp. z o.o. and its adviser, even if true, cannot excuse the error made, let alone constitute unforeseeable circumstances or force majeure justifying an extension of the time limits for the submission of documents (see, to that effect, order of 18 September 2007, Sellier v Commission, C‑191/07 P, not published, EU:C:2007:527, paragraph 9). In the present context, Metar sp. z o.o. must be considered to be responsible for any failure by its previous representative, who may have shown a lack of due care by failing to take all appropriate measures to inform its client, take the appropriate action and comply with the time limits for submission of the response (see, to that effect, orders of 12 December 2011, AO v Commission, T‑365/11 P, EU:T:2011:727, paragraph 39, and of 7 December 2016, claranet, T‑129/16, not published, EU:T:2016:728, paragraph 24). In that regard, it should be recalled that, pursuant to Article 178(3) of the Rules of Procedure, the application is to be served at the address given by the party concerned for the purposes of the notifications to be effected in the course of the proceedings before the Board of Appeal, of which the applicant for leave to intervene should have been aware, and which means, in particular, that it was required to check with its representative before EUIPO whether any action had been brought against the decision of the Board of Appeal.
22      It follows from the foregoing that Metar sp. z o.o. cannot be granted leave to participate in the proceedings in Case T‑748/18 as an intervener pursuant to Article 173(1) of the Rules of Procedure. This decision is without prejudice to the response which shall be given to Metar sp. z o.o.’s request, in the alternative, by which it wishes to participate in these proceedings in support of the form of order sought by EUIPO, as intervener, under Article 143 of the Rules of Procedure.
Costs
23      Since Metar sp. z o.o. did not respond to the application in the proper form and within the time limits prescribed, it has not become an intervener before the General Court pursuant to Article 173(1) of the Rules of Procedure. In accordance with Article 173(2) of the Rules of Procedure, Metar sp. z o.o. is to bear its own costs in relation to the procedural documents lodged by it.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1.      Metar sp. z o.o. is not granted leave to participate in the proceedings in Case T‑748/18 as an intervener pursuant to Article 173(1) of the Rules of Procedure of the General Court.
2.      Metar sp. z o.o. shall bear its own costs.
Luxembourg, 19 June 2019.
E. Coulon
G. Berardis
Registrar
President
*      Language of the case: English.