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

16 July 2020 ( )

(Appeal — Community design — Whether appeals may 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 — Appeal not allowed to proceed)

In Case C‑183/20 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 28 April 2020,

Fabryki Mebli “Forte” S.A., established in Ostrów Mazowiecka (Poland), represented by H. Basiński, adwokat,

appellant,

the other parties to the proceedings being:

Bog-Fran sp. z o.o. sp.k, established in Warsaw (Poland), represented by M. Mikosza, radca prawny,

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, S. Rodin and D. Šváby (Rapporteur), Judges,

Registrar: A. Calot Escobar,

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

makes the following

Order

1 By its appeal, Fabryki Mebli “Forte” S.A. asks the Court to set aside the judgment of the General Court of the European Union of 27 February 2020, Bog-Fran v EUIPO — Fabryki Mebli “Forte” (Furniture), (T‑159/19, not published, ‘the judgment under appeal’, EU:T:2020:77), by which the General Court annulled the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 14 January 2019 (Case R 291/2018‑3), relating to invalidity proceedings between Bog-Fran and Fabryki Mebli “Forte”.

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 of Justice 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 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 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 required 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 is to rule on the request that the appeal be allowed to proceed, as soon as possible, in the form of a reasoned order.

6 In support of its request that the appeal be allowed to proceed, the appellant relies on five arguments, by which it submits that its appeal raises issues that are significant with respect to the unity, consistency and development of EU law and which, according to the appellant, justify the appeal being allowed to proceed.

7 In the first place, by its first three arguments, the appellant submits that its appeal raises an issue that is significant with respect to the unity, consistency or development of EU law in so far as the General Court departed from its earlier case-law.

8 More specifically, by its first argument, the appellant criticises the General Court on the ground that it infringed paragraphs 38 and 39 of its judgment of 14 June 2011, Sphere Time v OHIM — Punch (Watch attached to a lanyard) (T‑68/10, EU:T:2011:269). In that regard, the appellant submits that the General Court disregarded its claims by which it called into question the authenticity of the documents provided by Bog-Fran, the applicant at first instance, and did not ask Bog-Fran to provide original documents. The appellant maintains that the contradiction between the judgment under appeal and the earlier case‑law of the General Court leads to a lack of consistency in the case‑law of the General Court and raises an issue that is significant with respect to the development of EU law in that it will lead the Court of Justice to determine the conditions that evidence must fulfil when a party to the proceedings calls its credibility into question.

9 By its second argument, the appellant submits that the General Court infringed its judgment of 9 December 2014, Inter-Union Technohandel v OHIM — Gumersport Mediterranea de Distribuciones (PROFLEX) (T‑278/12, EU:T:2014:1045) in that it failed to take into account, in paragraph 37 of the judgment under appeal, the fact that the evidence submitted by Bog-Fran originated exclusively from Bog-Fran. It submits that that paragraph of the judgment under appeal contradicts in particular paragraph 50 of the judgment of the General Court of 9 December 2014, Inter-Union Technohandel v OHIM — Gumersport Mediterranea de Distribuciones (PROFLEX) (T‑278/12, EU:T:2014:1045). According to the appellant, the General Court incorrectly assessed the probative value of that evidence. It submits that that argument raises an issue that is significant with respect to the development of EU law in that the Court of Justice will be led to determine the conditions under which evidence may be regarded as having a high probative value.

10 By its third argument, the appellant submits that the General Court infringed the judgment of 21 May 2015, Senz Technologies v OHIM — Impliva (Umbrellas) (T‑22/13 and T‑23/13, EU:T:2015:310). In that regard, it alleges a contradiction between paragraph 26 of that judgment and paragraphs 35 to 41 of the judgment under appeal, in so far as the General Court incorrectly divided the evidential burden and, consequently, presented the evidence provided by the parties to the proceedings incorrectly or even in a distorted manner. The appellant submits that that argument raises an issue that is significant with respect to the unity, consistency or development of EU law in that it will lead the Court of Justice to determine the method by which the evidential burden is to be divided.

11 In the second place, by its fourth argument, alleging infringement of Article 7(1) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), the appellant criticises the General Court on the ground that it misapplied the principle of the interdependence of factors when assessing disclosure of the earlier design. The errors of law committed by the General Court, it submits, result, in particular, from the failure to take into account, first, the evidence submitted by the appellant and, second, the arguments relating to the lack of knowledge, by the specialist circles in the sector concerned, of the events constituting the disclosure in question. The appellant contends that that issue is significant with respect to the unity, consistency or development of EU law because of the need for consistency of EU law. The appellant also observes that the Court of Justice has delivered very few judgments relating to the application of Article 7(1) of Regulation No 6/2002.

12 In the third place, by its fifth argument, the appellant submits that the appeal raises an issue that is significant with respect to the consistency of EU law as a result of the infringement of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in so far as the General Court did not specifically and expressly examine the plea based on the evidence provided by the appellant. The appellant claims that such an error of law results in the proceedings being unfair.

13 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 16 September 2019, Kiku v CPVO, C‑444/19 P, not published, EU:C:2019:746, paragraph 11, and of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 13).

14 Furthermore, as is clear from the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union, read in conjunction 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, by which 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, established by the appellant, are to be examined by the Court in an appeal (order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 14 and the case-law cited).

15 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 (order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 15 and the case-law cited).

16 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 such as to justify the appeal being allowed to proceed (order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 16 and the case-law cited).

17 In the present case, with regard, in the first place, to the arguments set out in paragraphs 7 to 10 of the present order, according to which the General Court departed from its previous case-law, it must be noted that, in accordance with the burden of proof which lies with the appellant requesting that the appeal be allowed to proceed, the argument that the General Court departed from its previous case-law is not, in itself, sufficient to establish that that appeal raises an issue that is significant with respect to the unity, consistency or development of EU law, as the appellant has to comply to that end with all the requirements set out in paragraph 15 of the present order (order of 24 October 2019, Porsche v EUIPO, C‑613/19 P, EU:C:2019:905, paragraph 17 and the case-law cited).

18 In this respect, with regard to the first argument, summarised in paragraph 8 of the present order, according to which the General Court disregarded the appellant’s arguments relating to the authenticity of the evidence, it should be noted that that line of argument is based on a manifestly incorrect reading of the judgment under appeal. Contrary to what the appellant submits, the General Court did not disregard its arguments but considered them, in paragraph 29 of the judgment under appeal, to be unsubstantiated and incapable of casting doubt on the authenticity of the evidence at issue.

19 As regards the second argument, referred to in paragraph 9 of the present order, by which the appellant criticises the General Court on the ground that it incorrectly assessed the probative value of the evidence, it should be recalled that the assessment of the value of the evidence submitted by the parties comes within the scope of a factual assessment in respect of which the General Court alone has jurisdiction. Thus, a claim that the General Court erred in its assessment of the facts cannot state that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law (order of 11 February 2020, Rutzinger-Kurpas v EUIPO, C‑887/19 P, not published, EU:C:2020:91, paragraph 14).

20 As regards the third argument, referred to in paragraph 10 of the present order, according to which the General Court incorrectly divided the evidential burden, it must be held that the appellant has in no way demonstrated that, in the judgment under appeal, the General Court departed from the judgment of 21 May 2015, Senz Technologies v OHIM — Impliva (Umbrellas) (T‑22/13 and T‑23/13, EU:T:2015:310). It should be noted that the fact that the General Court referred to that case-law in paragraph 19 of the judgment under appeal and subsequently carried out its analysis on that basis illustrates that the General Court did not in actual fact depart from its case-law relating to the evidential burden.

21 In the light of those considerations, it must be held that the first three arguments relied on by the appellant are not capable of raising an issue that is significant with respect to the unity, consistency or development of EU law.

22 As regards, in the second place, the fourth argument, referred to in paragraph 11 of the present order, it should be noted that the appellant merely asserts, in a generic manner, that the General Court erred in the application of the principle of interdependence of the factors taken into account when assessing disclosure of the earlier design, without establishing how that error, assuming it to be established, raises an issue of law that is significant with respect to the unity, consistency or development of EU law.

23 Furthermore, it should be noted that the appellant merely asserts that the General Court failed to have regard to the settled case-law of the Court of Justice, without stating the reasons why such a failure, assuming it to be established, raises an issue that is significant with respect to the consistency of EU law such as to justify the appeal being allowed to proceed.

24 Thus, it must be held that the appellant’s fourth argument does not satisfy the conditions set out in paragraphs 14 to 16 above and, consequently, it must be held that that argument is not capable of raising an issue that is significant with respect to the unity, consistency or development of EU law.

25 As regards, in the third and final place, the fifth argument, referred to in paragraph 12 of the present order, according to which the General Court infringed Article 47 of the Charter, suffice it to note that the appellant has failed to demonstrate how the alleged infringement of the abovementioned provision, assuming it to be established, raises an issue that is significant with respect to the unity, consistency or development of EU law, but merely asserts the significance of that article of the Charter and that the case-law of the Courts of the European Union should be consistent with that provision. In advancing such generic assertions, however, the appellant fails to demonstrate, in the light of the case-law set out in paragraphs 14 to 16 of the present order, that that argument raises an issue that is significant with respect to the unity, consistency or development of EU law.

26 In those circumstances, it must be held that the request submitted by the appellant 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.

27 In the light of all of the foregoing, the request that the appeal be allowed to proceed must be rejected.

Costs

28 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.

29 Since the present order was adopted before the appeal was 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. Fabryki Mebli “Forte” S.A. shall bear its own costs.

Luxembourg, 16 July 2020.

A. Calot Escobar R. Silva de Lapuerta