ORDER OF THE COURT (Chamber determining whether appeals may proceed)

30 November 2021 ( )

(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‑381/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 21 June 2021,

Keun Jig Lee, residing in Paju-si (South Korea), represented by F. Jacobacci and B. La Tella, 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, L.S. Rossi (Rapporteur) and N. Wahl, Judges,

Registrar: A. Calot Escobar,

having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, T. Ćapeta,

makes the following

Order

1 By his appeal, Keun Jig Lee asks the Court of Justice to set aside the judgment of the General Court of 21 April 2021, Lee v EUIPO (Table knives, forks and spoons) (T‑382/20, not published, EU:T:2021:210; ‘the judgment under appeal’), by which the General Court dismissed his action for annulment of the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 8 April 2020 (Case R 2559/2019‑3), relating to 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 The third paragraph of Article 58a of that statute provides that 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 of Justice, where it raises an issue that is significant with respect to the unity, consistency or development of EU law.

4 Article 170a(1) of the Rules of Procedure provides that, 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 those rules, the Court’s decision on the request that the appeal be allowed to proceed is to be taken as soon as possible in the form of a reasoned order.

6 In support of his request that the appeal be allowed to proceed, the appellant submits that the three grounds of appeal raise issues that are significant with respect to the unity, consistency or development of EU law.

7 By his first ground of appeal, he alleges that the General Court infringed Articles 36 and 53 of the Statute of the Court of Justice of the European Union and Article 117(m) of the Rules of Procedure of the General Court. In particular, the General Court, in paragraph 34 of the judgment under appeal, allegedly failed to state reasons for its rejection of several items of evidence produced by the appellant in order to demonstrate the adequacy of the system of controls put in place by his representative to monitor procedural time limits.

8 By his second ground of appeal, the appellant claims that the General Court seriously distorted the facts. More specifically, in paragraph 31 of the judgment under appeal, the General Court found, despite the detailed evidence provided by the appellant, that the complex double-check system used by the appellant’s representative was based ‘on one person controlling the work of the other’. Furthermore, such a finding contradicts the assertion in paragraph 34 of that judgment that that representative did not put in place a control system.

9 In the light of those two grounds of appeal, the appellant argues that the appeal raises issues that are significant with respect to the unity, consistency and development of EU law in that it would enable the Court to provide guidance on the standards applicable to the admissibility and evaluation of evidence in actions for restitutio in integrum under Article 67(1) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1). In particular, it is imperative that evidence be evaluated in a consistent and predictable manner so that the persons concerned are in a position to know what evidence must be adduced in order to show that all due care required by the circumstances, within the meaning of that provision, has been taken.

10 By his third ground of appeal, the appellant submits that the General Court made two errors of law. First, the General Court held, in paragraph 28 of the judgment under appeal, that human errors can never be regarded as exceptional or unforeseeable events justifying restitutio in integrum. Second, the General Court incorrectly stated, in paragraph 31 of the judgment under appeal, that the double-check system put in place by the appellant’s representative could not generally preclude involuntary non-compliance with procedural time limits. According to the appellant, those two errors arise from an incorrect application both of Article 67(1) of Regulation No 6/2002 and of the case-law of the General Court itself, including, in particular, the judgments of 13 May 2009, Aurelia Finance v OHIM (T‑136/08, EU:T:2009:155), and of 25 April 2012, Brainlab v OHIM (T‑326/11, EU:T:2012:202), on the Community trade mark.

11 According to the appellant, the absence of case-law on the application of Article 67 of Regulation No 6/2002 makes the examination of the appeal necessary to contribute to the consistency and development of EU law, all the more so because EUIPO’s practice is stricter than that of the Technical Board of Appeal of the European Patent Office (EPO) when it applies Article 122 of the Convention on the Grant of European Patents, signed in Munich (Germany) on 5 October 1973, which is similar to Article 67.

12 In order to examine the present request that the appeal be allowed to proceed, it should be noted that it is for the appellant to demonstrate that the issues raised by his appeal are significant with respect to the unity, consistency or development of EU law (orders of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 13, and of 6 October 2021, FCA Italy v EUIPO, C‑360/21 P, not published, EU:C:2021:841, paragraph 12).

13 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 and 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 (see orders of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 14, and of 6 October 2021, FCA Italy v EUIPO, C‑360/21 P, not published, EU:C:2021:841, paragraph 13 and the case-law cited).

14 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 (see, to that effect, orders of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 15, and of 6 October 2021, FCA Italy v EUIPO, C‑360/21 P, not published, EU:C:2021:841, paragraph 14).

15 A request that an appeal be allowed to proceed which does not contain the information mentioned in paragraph 14 of this 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 6 October 2021, FCA Italy v EUIPO, C‑360/21 P, not published, EU:C:2021:841, paragraph 15).

16 In the present case, as regards the arguments referred to in paragraph 7 of this order, it follows from the settled case-law of the Court of Justice that the question whether the grounds of a judgment of the General Court are defective, inadequate or contradictory is a question of law which is amenable to review on appeal (order of 7 October 2019, L’Oréal v EUIPO, C‑587/19 P, not published, EU:C:2019:844, paragraph 10 and the case-law cited).

17 By contrast, the circumstance that an appeal raises such a question of law does not, in itself, allow the view to be taken that that appeal must be allowed by the Court to proceed for the purposes of Article 58a of the Statute. As is apparent from paragraphs 2 to 4 of this order, 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 his 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 7 October 2019, L’Oréal v EUIPO, C‑587/19 P, not published, EU:C:2019:844, paragraph 11).

18 Although the appellant submits that the judgment under appeal is vitiated by a failure to state reasons, he merely asserts that the examination of the first ground of appeal will enable the Court to provide guidance with regard to the evaluation of evidence in the context of actions governed by Article 67(1) of Regulation No 6/2002, without specifying the reasons why the alleged failure to state reasons in the judgment under appeal raises an issue that is significant with respect to the unity, consistency and development of EU law. Furthermore, the arguments concerning the significance of an evaluation of the evidence which is consistent and predictable and the Court’s guidance in that regard do not, in view of their very general nature, prove the existence of an issue that is significant with respect to the unity and consistency of EU law.

19 As regards the argument summarised in paragraph 8 of this order, in so far as the appellant alleges that the General Court seriously distorted the facts and evidence, it should be noted that such an 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 (order of 10 November 2021, Comercializadora Eloro v EUIPO, C‑415/21 P, EU:C:2021:924, paragraph 21 and the case-law cited).

20 As regards the arguments summarised in paragraphs 10 and 11 of the present order, relating to errors of law alleged to have been committed by the General Court, it should be borne in mind that the fact that an appeal raises certain issues of law specific to the judgment under appeal does not in itself allow the view to be taken that the Court of Justice must allow the appeal to proceed. The appellant must also demonstrate that, independently of the issues of law invoked in his appeal, that appeal raises one or more issues that are significant with respect to the unity, consistency and development of EU law, the scope of this criterion going beyond the judgment under appeal and, ultimately, his appeal (order of 24 October 2019, Porsche v EUIPO, C‑614/19 P, EU:C:2019:904, paragraph 20 and the case-law cited).

21 In this case, the appellant puts forward two arguments concerning, first, the absence of case-law on the application of Article 67 of Regulation No 6/2002 and, second, the General Court’s failure to have regard to its own case-law.

22 Concerning the absence of case-law, it should be noted that the fact that an issue of law has not been examined by the General Court or the Court of Justice does not thereby mean that that issue is necessarily one of significance with respect to the development of EU law, since the appellant remains bound to demonstrate that significance, by providing detailed information not only on the novelty of that issue, but also on the reasons why that issue is significant with respect to the development of EU law (order of 25 March 2021, Ultrasun v EUIPO, C‑722/20 P, not published, EU:C:2021:255, paragraph 17 and the case-law cited). The fact that, according to the appellant, the absence of such case-law calls into question the consistent interpretation of Article 67 of Regulation No 6/2002 and that of Article 122 of the Convention on the Grant of European Patents cannot, as such, suffice to establish the existence of such a significant issue, particularly since, as stated by the appellant himself, the EPO’s practice in the application of Article 122 is not binding on EUIPO, the General Court or the Court of Justice, when they apply or interpret Article 67.

23 As regards the General Court’s alleged failure to have regard to its own case-law, it should be noted that, 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, as recalled in paragraph 14 of this order, 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.

24 In this case, the appellant sets out the reasons underlying the complaint at issue, as is apparent from paragraph 11 of this order, but, as regards the significance of the issue with respect to the unity, consistency or development of EU law, he merely states that the alleged errors of the General Court constitute a serious infringement of EU law, by depriving persons in the appellant’s situation of the right to bring proceedings laid down in Article 67 of Regulation No 6/2002. In view of its vague and general nature, such an argument is not sufficient to establish that the issue concerned is significant as required by the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union.

25 In the light of the foregoing considerations, it must be held that the request is not capable of establishing that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law and, accordingly, the appeal should not be allowed to proceed.

Costs

26 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.

27 Since the present order was adopted before the appeal was served on the other party to the proceedings and, therefore, before that party could have incurred costs, it is appropriate to decide that the appellant is to bear his own costs.

On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:

1. The appeal is not allowed to proceed.

2. Keun Jig Lee shall bear his own costs.

Luxembourg, 30 November 2021.

A. Calot Escobar L. Bay Larsen