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