ORDER OF THE GENERAL COURT (Third Chamber)
3 October 2012(*)
(Community trade mark – Period allowed for bringing proceedings – Out of time – No unforeseeable circumstances – No force majeure – Right of access to a court – Manifest inadmissibility)
In Case T‑360/10,
Tecnimed Srl, established in Vedano Olona (Italy), represented by M. Franzosi and V. Piccarreta, lawyers,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by P. Bullock, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
Ecobrands Ltd, established in London (United Kingdom),
ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 14 June 2010 (Case R 1795/2008-4), concerning invalidity proceedings between Tecnimed Srl and Ecobrands Ltd,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz (Rapporteur), President, I. Labucka and D. Gratsias, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and procedure
1        The present action is brought by the applicant, Tecnimed Srl, against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 14 June 2010 (Case R 1795/2008‑4) (‘the contested decision’), concerning invalidity proceedings brought by the applicant against the Community word mark ZAPPER-CLICK, held by Ecobrands Ltd, in relation to part of the goods covered by that Community mark. In the contested decision, the Board of Appeal annulled the decision of the Cancellation Division of OHIM of 28 October 2008 declaring that Community mark invalid in part in respect of all the goods at issue.
2        The applicant was notified of the contested decision on 16 June 2010.
3        By fax and by email received at the Registry of the General Court on 26 August 2010, the applicant brought an action for the annulment of the contested decision.
4        On 30 August 2010, the applicant lodged, at the Court Registry, an application against the contested decision bearing different signatures to those on the application brought on 26 August 2010.
5        By letter of 26 October 2010, the Court Registrar requested that the applicant explain why the signatures on the application lodged at the Court Registry on 30 August 2010 were not the same as those on the application received at the Court Registry on 26 August 2010 by fax and by email. The time-limit for lodging those explanations was set for 9 November 2010. On 8 November 2010, the applicant submitted its explanations by fax and by email but failed to lodge the original of that document which could not therefore be taken into account because, pursuant to Article 43(6) of the Rules of Procedure of the General Court, the original of a pleading must always be lodged at the Court Registry.
6        On 14 February 2012, by way of measures of organisation of procedure provided for by Article 64 of the Rules of Procedure, the Court drew the applicant’s attention to the order of 29 November 2011 in Case T‑345/11 ENISA v EDPS, not published in the ECR, and requested that it explain, in the light of the case-law cited above, the reasons why the signatures on the fax and the email received at the Court Registry on 26 August 2010 were not the same as those on the original of the application lodged at the Court Registry on 30 August 2010. The applicant submitted its observations on 1 March 2012. Also in the context of measures of organisation of procedure, OHIM was invited to submit its observations on those made by the applicant. OHIM did not respond to that invitation.
Forms of order sought
7        The applicant claims that the Court should:
–        annul the contested decision;
–        uphold the decision of the Cancellation Division;
–        order OHIM to pay the costs.
8        OHIM contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
9        Article 111 of the Rules of Procedure provides that where the action is manifestly inadmissible, the Court may, by reasoned order, and without taking further steps in the proceedings, give a decision on the action.
10      In the present case, the Court considers that it has sufficient information from the documents in the file and has decided, pursuant to that article, to give judgment without taking further steps in the proceedings.
11      Under the sixth paragraph of Article 263 TFEU, proceedings for annulment are to be instituted within two months of the publication of the contested measure, or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. In accordance with Article 102(2) of the Rules of Procedure, that period must also be extended on account of distance by a single period of 10 days.
12      It is settled case-law that the time-limit for bringing proceedings is a matter of public policy, since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and it is for the Courts of the European Union (EU) to ascertain, of their own motion, whether it has been complied with (Case C-246/95 Coen [1997] ECR I-403, paragraph 21; Joined Cases T-121/96 and T-151/96 Mutual Aid Administration Services v Commission [1997] ECR II-1355, paragraphs 38 and 39, and ENISA v EDPS, paragraph 11).
13      In the present case, as the applicant was notified of the contested decision on 16 June 2010, it follows from the calculation of procedural time-limits provided for in Article 101(1)(a) and (b) and Article 102(2) of the Rules of Procedure that the time-limit for bringing proceedings expired at midnight on 26 August 2010, including the extension on account of distance.
14      The application was submitted to the Court Registry by fax and by email on 26 August 2010, that is to say before the expiry of the time‑limit for bringing proceedings.
15      However, pursuant to Article 43(6) of the Rules of Procedure, the date on which a copy of the signed original of a pleading is received at the Registry of the Court by fax is to be deemed to be the date of lodgment for the purposes of compliance with procedural time-limits only if the signed original of the pleading is lodged at the Registry no later than 10 days after receipt of the fax. In addition, paragraph 3 of the Practice Directions to parties provides that in the event of any discrepancy between the signed original and the copy previously lodged, only the date of lodgment of the signed original will be taken into consideration.
16      In the present case, as acknowledged by the applicant, the signatures on the application lodged at the Court Registry on 30 August 2010 are not the same as those on the application submitted by fax and by email on 26 August 2010. In those circumstances, the date of submission of the latter application cannot be taken into account for the purposes of compliance with the time-limit for bringing proceedings (order in Case T‑138/01 R F v Court of Auditors [2001] ECR-SC I‑A‑211 and II‑987, paragraphs 8 and 9, and ENISA v EDPS, paragraphs 16 and 17).
17      It follows that, in accordance with Article 43(6) of the Rules of Procedure, only the date on which the signed original was lodged, namely 30 August 2010, is to be taken into consideration for the purposes of compliance with the time-limit for bringing proceedings. As the time-limit expired at midnight on 26 August 2010, it must be found that the application was lodged out of time.
18      In its observations of 1 March 2012, the applicant explains the circumstances which led to the documents at issue bearing different signatures referred to in paragraph 16 above.
19      It explains, inter alia, that, after it had submitted the application by fax and by email to the Court on 26 August 2010, one of its representatives, Mr Piccareta, with the help of Mrs C., from the law firm at the material time, was personally responsible for arranging the next day, 27 August 2010, the preparation of the original and the copies thereof to be sent to the Court. Moreover, as confirmed by a statement from Mrs C. annexed to the applicant’s observations of 1 March 2012, when making copies of the original, the last pages became stuck in the photocopier and were destroyed when an attempt was made to extricate them from the machine; the signature page was particularly crumpled by the photocopier and was torn up into small pieces during the attempts to extricate it, including the part bearing the signatures themselves. Given that the torn pages could not be sent to the Court, Mr Piccareta was obliged to reprint the original of the application, sign it and to get Mr Franzosi to sign it, as was previously done with the version of the application submitted by fax.
20      The applicant submits, in addition, that the department of the legal firm in which those representatives work use a photocopier of the highest quality and the investments made for the purposes of its maintenance are substantial, as confirmed by an invoice for the photocopier’s maintenance for 2010 in the amount of EUR 7 544.35, including VAT, and by a statement from a former employee of the legal firm at issue which is also annexed to the applicant’s observations of 1 March 2012.
21      In that regard, it must be found that, in providing those explanations, the applicant is claiming the existence of unforeseeable circumstances or of force majeure preventing any loss of rights resulting from the expiry of the time-limit for bringing proceedings, pursuant to the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, which applies to the procedure before the General Court by virtue of the first paragraph of Article 53 of that statute.
22      It should be borne in mind that the concepts of ‘force majeure’ and ‘unforeseeable circumstances’ within the meaning of Article 45 of the Statute of the Court of Justice contain both an objective element relating to abnormal circumstances unconnected with the person in question and a subjective element involving the obligation, on that person’s part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the person concerned must pay close attention to the course of the procedure set in motion and, in particular, demonstrate diligence in order to comply with the prescribed time-limits (see Case C‑426/10 P Bell & Ross v OHIM [2011] ECR I‑0000, paragraph 48 and the case-law cited; ENISA v EDPS, paragraph 20). In that regard, the responsibility for preparing, monitoring and checking procedural documents to be lodged at the Court Registry rests with the representative of the person concerned (Bell & Ross v OHIM, paragraph 50; ENISA v EDPS, paragraph 20).
23      In the present case, the applicant claims that the fact that the signature page of the original of the application became stuck and torn in a high‑tech photocopier of high quality constitutes an extremely abnormal occurrence and relates to a mechanical malfunction which goes beyond what is foreseeable and falls outside the user’s control, from whom only appropriate maintenance of the photocopier can be expected. To require additional precautions to be taken would impose unreasonable sacrifices on the person concerned.
24      Contrary to what the applicant claims, those circumstances fail to demonstrate the diligence required in order to comply with the prescribed time-limits in accordance with the case-law cited in paragraph 22 above. Even if the occurrence of an exceptional jam in a well-maintained photocopier of high quality is a matter related to external circumstances, it cannot be denied that, by preparing copies of the original of the application and sending the original by post the day after expiry of the time-limit for bringing proceedings, the applicant did not guard against the consequences of an abnormal event by taking appropriate steps, because it had then become impossible for it to remedy the consequences of the damage, caused to the signed original of the application when it was duplicated by sending a new signature page by fax or by email before expiry of the time-limit for bringing proceedings. Consultation of the relevant texts, in particular paragraph 3 of the Practice Directions to parties, should have led the applicant, as a conscientious and prudent undertaking, to ensure that the signed original of the application was sent without delay, immediately after the copy was sent.
25      It follows that the applicant has not proved the existence of unforeseeable circumstances or of force majeure for the purposes of Article 45 of the Statute of the Court of Justice.
26      It is also necessary to examine the applicant’s arguments set out in its observations of 1 March 2012 which, it claims, render irrelevant the difference between the signatures on the documents at issue as referred to in paragraph 16 above, even if it were to be considered that the conditions for applying Article 45 of the Statute of the Court of Justice have not been satisfied.
27      First, the applicant claims that those differences should not lead to the conclusion that the documents at issue are not identical. In that regard, the applicant invokes, on the one hand, the fact that the original sent by post and the copy sent by fax are identical so far as concerns the content and formal elements, except for the signatures and the statement that the copy is identical to the original and, on the other, the fact that the signatures are authentic and have been made by the lawyers to whom the applicant has granted powers of representation. It also submits that the signatures are, by definition, handwritten and that, consequently, two signatures will never be exactly the same, although they are both authentic and made by the same person. In addition, the applicant refers to the case-law of the Corte suprema di cassazione (Supreme Court of Cassation, Italy) according to which it is not necessary that the original, and the copy of an application are identical in form so far as concerns the signature, but that it is entirely possible for the copy to bear a signature different to that on the original provided that both signatures are made by the same person. In support of applying that case-law by analogy, the applicant refers to the principle of equivalence.
28      That argument cannot be accepted. It is apparent from the case-law referred to in paragraph 16 above that the Court considers that the mere fact that the signatures on the copy of the application submitted by fax and on the original differ means that they are not identical documents and that, if there is a difference, even a difference in form, between the original and the copy, Article 43(6) of the Rules of Procedure does not permit the date of receipt of the fax or of the email to be considered to be the date of lodgement of the application.
29      The argument based on the case-law of the Corte suprema di cassazione must be rejected because it is settled case-law that proceedings before the Court are governed exclusively by the Rules of Procedure (see, by analogy, Case T‑316/07 Commercy v OHIM – easyGroup IP Licensing (easyHotel) [2009] ECR II‑43, paragraph 23). Moreover, in that regard, the principle of equivalence, according to which the detailed procedural rules governing actions for safeguarding a litigant’s rights under EU law must be no less favourable than those governing similar domestic actions (see Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 43 and the case-law cited), cannot be relied on by the applicant here. That principle concerns the protection of litigants before national courts to ensure the observance of EU law whereas the present case concerns a direct action brought by a private individual before the Courts of the European Union.
30      Second, the applicant submits that the requirement that all of the formal elements of the copy of the application and of those of the signed original must be identical is contrary to the requirement that a lawyer must certify the copy as being a true copy of the original.
31      It must be found that that argument confuses the role played by certification of a copy of a pleading lodged at the Court Registry as a true copy of the original for the purposes of Article 43(1) of the Rules of Procedure with the requirement that the content of the version of the application lodged by fax and the original lodged thereafter, in accordance with Article 43(6) of the Rules of Procedure, must not differ, even to a minor extent. The certification of a copy as a true copy of an original of a pleading is an act subsequent to finalising that document and has nothing to do with its content; a certified copy of an original remains a copy of the original. However, the identical nature of the signatures on the version of the application sent by fax and the signatures on the original sent thereafter concerns the authenticity of the original of that pleading in relation to a version thereof sent by fax or by email.
32      Lastly, the applicant claims, in essence, that to consider its application to be inadmissible on the ground that the signatures on the copy of the application and those on the original are not exactly the same infringes its right to effective judicial protection as provided for in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) and Article 47 of the Charter of Fundamental Rights of the European Union (OJ 2007 C 303, p. 1). It refers, in that regard, to Unibet, in particular as regards the application of the principle of effectiveness, and to the case-law of the European Court of Human Rights.
33      As indicated in paragraph 37 of Unibet, the principle of effective judicial protection is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the ECHR and which has also been reaffirmed by Article 47 of the Charter of Fundamental Rights, which states, in the first paragraph thereof, that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article.
34      In addition, it is apparent from Article 52(3) of the Charter of Fundamental Rights that, in so far as the Charter contains provisions relating to rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights is to be the same as those laid down by that convention.
35      In that regard, the applicant cannot effectively invoke the principle of effectiveness according to which the detailed procedural rules governing actions for safeguarding a litigant’s rights under EU law must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (see Unibet, paragraph 43 and the case-law cited). Like the principle of equivalence (paragraph 29 above), the principle of effectiveness relates to the protection of litigants before national courts so far as concerns their rights under EU law.
36      As regards the applicant’s right to effective judicial protection, Article 6(1) of the ECHR guarantees litigants an effective right of access to a court. However, that right is not absolute and is subject to limitations permitted by implication, in particular as regards the conditions of admissibility of an action, since by its very nature it calls for regulation by the State, which enjoys, in that regard, a certain margin of appreciation. Those limitations must not restrict a litigant’s access to a court in such a way or to such an extent that the very essence of the right is impaired. Lastly, they must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see European Court of Human Rights, Levages Prestations Services v. France, judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, § 40, and Marcovic and Others v. Italy, judgment of 14 December 2006, Reports of Judgments and Decisions 2006-XIV, § 99).
37      In that regard, it should be borne in mind that Article 43(6) of the Rules of Procedure provides that receipt by the Court Registry of the copy of the application by fax is to be treated in the same way as the lodgment of the original of the application provided that that original is actually lodged there within 10 days. Compliance with that condition logically means that the version sent to the Court Registry by fax should be the photographic copy of the original version and not a document having the same content in a different form. As stated above, that requirement is clearly set out in the Practice Directions to parties and paragraph 3 thereof provides, inter alia, that the signed original of the application must be sent without delay, immediately after the copy is sent, without any corrections or amendments, even of a minor nature, being made to it, and that, in the event of any discrepancy between the signed original and the copy previously lodged, only the date of lodgment of the signed original will be taken into consideration.
38      It should also be borne in mind that Article 43(6) of the Rules of Procedure, by taking account of modern communication techniques, reduces the burdens on applicants as regards compliance with the time-limits for bringing proceedings.
39      Moreover, applicants are obliged to be vigilant as regards compliance with the time-limits for bringing proceedings.
40      Accordingly, while Article 43(6) of the Rules of Procedure, as interpreted by paragraph 3 of the Practice Directions to parties, constitutes a limitation on the right of access to a court, that limitation does not constitute an impairment to the very essence of that right, since, as already observed in paragraph 37 above, the rules at issue are clear and present no particular difficulty of interpretation (see, to that effect and by analogy, order in Case C‑73/10 P Internationale Fruchtimport Gesellschaft Weichert v Commission [2010] ECR I‑11535, paragraph 56).
41      Also relevant in this context is the fact that, in the present case, the breach of Article 43(6) of the Rules of Procedure is solely due to the conduct of the applicant’s lawyer which, as noted above, cannot be regarded as constituting an unforeseeable circumstance or a case of force majeure which would permit derogation from the rules relating to the time-limits for bringing proceedings.
42      Moreover, so far as concerns proportionality between the means employed and the aim sought to be achieved, the requirement that the version sent by fax should be identical to the original of the application lodged at the Court Registry, under Article 43(6) of the Rules of Procedure, has two objectives.
43      First, the purpose of that requirement is to ensure that the possibility of bringing an action before the Courts of the European Union by one of the new means of communication, provided for in Article 43(6) of the Rules of Procedure, does not call into question the obligatory nature of the procedural time-limits or the requirements of legal certainty and equality among litigants, which those time‑limits are intended to safeguard. As stated in paragraph 12 above, those time‑limits and their application serve the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice.
44      Second, the requirement that the version sent by fax should be identical to the original of the application lodged with the Court Registry seeks to allow the latter, when the original of the application is forwarded to it, to verify that that original is exactly the same as the version sent by fax simply by means of a rapid and superficial examination, without an in-depth examination of their content.
45      It is thus necessary to establish whether to consider, as in the present case, that the mere difference in the signatures on the copy of the application submitted by fax and those on the original leads to the finding that they are not identical documents reflects reasonable proportionality between the means employed and the objectives described in paragraphs 43 and 44 above.
46      In that regard, even if the difference does not relate to the substance of the application sent within the time-limit for bringing proceedings and, moreover, there is no question of any amendment having been made to the typewritten content of the document, the fact remains that a difference in form such as that which has been found to exist in the present case may raise doubts as to whether the two versions in question are identical and oblige the Court Registry to verify in detail whether this is so, page by page. In addition, to consider that a mere difference in signatures is not sufficiently important to raise such a doubt leads to the need to decide, case by case, on the types of differences in form which may be allowed, which can ultimately compromise the aim of equal treatment among litigants in the light of the obligatory nature of the procedural time-limits for bringing proceedings.
47      The interpretation of Article 43(6) of the Rules of Procedure adopted in the present case, preventing the Court Registry from having to make a detailed comparison of the content of the copy of the application sent by fax or by email before the expiry of the time-limit for bringing proceedings with that of the signed original of the pleading where a difference in form has been found and from having to decide, case by case, on the differences in form which may or may not compromise the identity of subsequent versions of pleadings, does not therefore create a lack of proportionality between the means employed and the aim sought to be realised.
48      It follows from all the foregoing that the application must be dismissed as manifestly inadmissible.
Costs
49      Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by OHIM.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1.      Dismisses the action;
2.      Orders Tecnimed Srl to pay the costs.
Luxembourg, 3 October 2012.
E. Coulon
O. Czúcz
Registrar
President
* Language of the case: English.