ORDER OF THE COURT (Chamber determining whether appeals may proceed)
23 February 2024 (*)
(Appeal – Community design – Determination as to whether appeals should be allowed to proceed – Article 170b of the Rules of Procedure of the Court of Justice – Request failing to demonstrate that an issue is significant with respect to the unity, consistency or development of EU law – Refusal to allow the appeal to proceed)
In Case C‑707/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 November 2023,
Breville Pty Ltd, established in Alexandria (Australia), represented by G. Grippiotti, M. Pozzi and F. Caruso, avvocati,
appellant,
the other party to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
THE COURT (Chamber determining whether appeals may proceed)
composed of L. Bay Larsen, Vice-President of the Court, T. von Danwitz and P.G. Xuereb (Rapporteur), Judges,
Registrar: A. Calot Escobar,
having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, J. Richard de la Tour, makes the following
Order
1        By its appeal, Breville Pty Ltd asks the Court of Justice to set aside the judgment of the General Court of the European Union of 20 September 2023, Breville v EUIPO
(Cooking devices) (T‑616/22, EU:T:2023:576; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 20 June 2022 (Case R 613/2022-3), concerning an application for restitutio in integrum.
The request that the appeal be allowed to proceed
2        Under 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 of Justice first decides that it should be allowed to do so.
3        Pursuant to 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 Rules of Procedure of the Court Justice, where it raises an issue that is significant with respect to the unity, consistency or development of EU law.
4        Under Article 170a(1) of the Rules of Procedure, in the situations referred to in the first paragraph of Article 58a of that statute, 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 EU law and containing all the information necessary to enable the Court of Justice to rule on that request.
5        In accordance with Article 170b(1) and (3) of the Rules of Procedure, the Court’s decision on the request that the appeal be allowed to proceed is to be taken as soon as possible and is to take the form of a reasoned order.
Arguments of the appellant
6        In support of its request that the appeal be allowed to proceed, the appellant submits that the General Court committed four errors of law which raise issues that are significant with respect to the unity, consistency or development of EU law.
7        First, the appellant submits that the General Court made an error of law contrary to Article 296 TFEU, Article 36 of Protocol (No 3) on the Statute of the Court of Justice of the European Union, Article 67(2) of
Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1) and Article 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1), by failing to indicate the reasons why the earlier decision of 17 March 2021 of the Board of Appeal in Case R 2134/2020-3 was considered not to be relevant. It also breached
the principle of equal treatment.
8        The General Court also misconstrued and distorted the facts forming the subject matter of the action before the Board of Appeal in Case R 2134/2020-3 and those forming the subject matter of the action before the General Court in the present case.
9        Secondly, the appellant complains that the General Court erred in law in its interpretation of Article 67(1) of Regulation No 6/2002, by failing to consider also Article 67(6) and (7). That article, read as a whole, would have rebutted the General Court’s finding that allowing restitutio in integrum would be liable to undermine legal certainty.
10      Thirdly, the appellant submits that the General Court erred in law by failing to apply the principle of equal treatment.
11      Those errors allegedly committed by the General Court and set out in paragraphs 7 to 10 of the present order are significant with respect to the unity, consistency or development of EU law. If the General Court had duly recognised the comparability of the two cases dealt with by the Board of Appeal, namely Cases R 2134/2020-3 and
R 613/2022-3 which is the subject of the judgment under appeal, and had applied the principle of equal treatment, it would have turned out that the appellant had, in the present case, complied with the two-month time limit for lodging an application for restitutio in integrum.
12      Fourthly, the appellant submits that the General Court misinterpreted and misapplied Article 62 of Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Regulation No 6/2002 (OJ 2002 L 341, p. 28) and Article 77(2) of Regulation No 6/2002 in finding that an authorisation which was merely stated by the representative, but never requested or granted by the represented party, could extend to all future acts or proceedings which might by lodged by the rightholder, by calling on the services of the representative already of record or the services of another representative or mere service provider not registered with EUIPO.
13      The issue raised by that argument is significant with respect to the unity, consistency or development of EU law inasmuch as it affects the interpretation of the provisions governing representation of third parties in proceedings not only before EUIPO, but also before any EU administrative body or agency. Hence the General Court’s interpretation is liable to undermine legal certainty. That issue also becomes all the more significant because it concerns all areas in which a natural or legal person has to initiate proceedings before EU administrative bodies or courts. Lastly, the interpretation of those provisions seems to be somewhat controversial, given the different interpretations thereof by EUIPO and the General Court.
Findings of the Court
14      As a preliminary point, it must be recalled that it is for the appellant to demonstrate that the issues raised by its appeal are significant with respect to the unity, consistency or development of EU law (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 20, and of 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 18).
15      Furthermore, as is apparent from the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union, read together with Article 170a(1) and Article 170b(4) of the Rules of Procedure, the request that an appeal be allowed to proceed must contain all the information necessary to enable the Court to give a ruling on whether the appeal should be allowed to proceed and to specify, where the appeal is allowed to proceed in part, the pleas in law or parts of the appeal to which the response must relate. Given that the objective of the mechanism provided for in Article 58a of that statute whereby the Court determines whether an appeal should be allowed to proceed is to restrict review by the Court to issues that are significant with respect to the unity, consistency or development of EU law, only grounds of appeal that raise such issues and that are established by the appellant are to be examined by the Court in an appeal (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 21, and of 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 19).
16      Accordingly, a request that an appeal be allowed to proceed must, in any event, set out clearly and in detail the grounds on which the appeal is based, identify with equal clarity and detail the issue of law raised by each ground of appeal, specify whether that issue is significant with respect to the unity, consistency or development of EU law and set out the specific reasons why that issue is significant according to that criterion. As regards, in particular, the grounds of appeal, the request that an appeal be allowed to proceed must specify the provision of EU law or the case-law that has been infringed by the judgment or order under appeal, explain succinctly the nature of the error of law allegedly committed by the General Court, and indicate to what extent that error had an effect on the outcome of the judgment or order under appeal. Where the error of law relied on results from an infringement of the case-law, the request that the appeal be allowed to proceed must explain, in a succinct but clear and precise manner, first, where the alleged contradiction lies, by identifying the paragraphs of the judgment or order under appeal which the appellant is calling into question as well as those of the ruling of the Court of Justice or the General Court alleged to have been infringed, and, second, the concrete reasons why such a contradiction raises an issue that is significant with respect to the unity, consistency or development of EU law (orders of 10 December 2021, EUIPO v The KaiKai Company Jaeger Wichmann, C‑382/21 P, EU:C:2021:1050, paragraph 22, and of 11 July 2023, EUIPO v Neoperl, C‑93/23 P, EU:C:2023:601, paragraph 20).
17      A request that an appeal be allowed to proceed which does not contain the information mentioned in the preceding paragraph of the present order cannot, from the outset, be capable of demonstrating that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law that justifies the appeal being allowed to proceed (orders of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 16, and of 9 November 2023, Consulta v EUIPO, C‑443/23 P, EU:C:2023:859, paragraph 15).
18      In the present case, as regards the arguments set out in paragraphs 7 and 11 of this order, it follows from the settled case-law of the Court of Justice that the question whether a judgment of the General Court is defective, inadequate or contradictory is a question of law which is amenable to review on appeal (order of 17 July 2023, Canai Technology v EUIPO, C‑280/23 P, EU:C:2023:596, paragraph 15 and the case-law cited).
19      By contrast, the fact that an appeal raises such an issue of law does not, in itself, allow the view to be taken that that appeal must be allowed by the Court of Justice to proceed for the purposes of Article 58a of the Statute. Whether the appeal should be allowed to proceed is subject to compliance with specific conditions consisting, for the appellant, in demonstrating, inter alia, that, independently of the issues of law invoked in its appeal, that appeal raises one or more issues that are significant with respect to the unity, consistency or development of EU law. In order to demonstrate that that is the case, it is necessary to establish both the existence and significance of such issues by means of concrete evidence specific to the particular case, and not simply of arguments of a general nature (order of 17 July 2023, Canai Technology v EUIPO, C‑280/23 P, EU:C:2023:596, paragraph 16 and the case-law cited).
20      Although the appellant maintains that the order
under appeal is vitiated by a failure to state reasons and breaches
the principle of equal treatment, it nevertheless merely states that the General Court erred in law by failing to indicate the reasons why the earlier decision of 17 March 2021 of the Board of Appeal in Case R 2134/2020-3 was considered not to be relevant and breached
the principle of equal treatment, without however specifying the relevant paragraphs of the judgment under appeal and without setting out the specific reasons why those errors, if proven, raise issues that are significant with respect to the unity, consistency or development of EU law.
21      Moreover, as regards the line of argument summarised in paragraph 8 of the present order, first, in so far as the appellant seeks to call into question the General Court’s assessment of the facts forming the subject matter of the action before the Board of Appeal in Case R 2134/2020-3 and those forming the subject matter of the action before the General Court in the present case, it should be noted that such a line of argument does not establish that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law that justifies the appeal being allowed to proceed (see, by analogy, order of 9 January 2024, Yayla Türk v EUIPO, C‑611/23 P, EU:C:2024:3, paragraph 14 and the case-law cited).
22      Secondly, in so far as the appellant alleges that the General Court distorted the facts, it should be borne in mind that such a line of argument cannot, in principle, be capable, as such and even if well founded, of raising an issue that is significant with respect to the unity, consistency or development of EU law (see, to that effect, order
of 5 July 2023, Suicha v EUIPO, C‑120/23 P, EU:C:2023:539, paragraph 15 and the case-law cited).
23      As regards the arguments set out in paragraphs 9 to 10 of the present order, it would appear that the arguments put forward by the appellant are not sufficiently clear and precise to enable the Court of Justice to understand the nature of the error of law allegedly made by the General Court. Consequently, whereas the appellant must satisfy all of the requirements set out in paragraph 16 of the present order, it is clear that it did not comply with all those requirements in so far as, first, it did not specify either the nature of the error of law allegedly made by the General Court or to what extent that error had an effect on the outcome of the judgment under appeal and, second, it failed to indicate the paragraphs of that judgment which it is calling into question (see, by analogy, order of 23 March 2023, G-Core Innovations v EUIPO, C‑732/22 P, EU:C:2023:253, paragraph 14).
24      As regards the line of argument set out in paragraphs 12 and 13 of the present order, relating to the General Court’s alleged disregard of the authorisation of the appellant’s representative, it should be noted that the appellant merely sets out, in a somewhat obscure manner, the errors allegedly committed by the General Court, without offering any elucidation or specifying the relevant paragraphs of the judgment under appeal. Nor does it set out the specific reasons why those errors, if proven, raise issues that are significant with respect to the unity, consistency or development of EU law, opting instead merely to put forward
arguments of a general nature in that regard.
25      It follows that all of the arguments put forward by the appellant in support of its request that the appeal be allowed to proceed do not comply with the requirements referred to in paragraph 16 of the present order.
26      In those circumstances, the Court of Justice finds that the appellant’s request does not establish that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law.
27      In the light of all the foregoing considerations, the request that the appeal be allowed to proceed must be dismissed.
Costs
28      Under Article 137 of the Rules of Procedure, applicable to proceedings 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.
29      Since the present order was adopted before the appeal was served on the other party to the proceedings and, therefore, before it 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.      Breville Pty Ltd shall bear its own costs.
Luxembourg, 23 February 2024.
A. Calot Escobar
L. Bay Larsen
Registrar
President of the Chamber determining whether appeals may proceed
*      Language of the case: English.