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The General Court noted, first, in paragraphs 31 and 32 of the judgment under appeal – referring to paragraph 42 of the judgment in Case C-29/05 P OHIM v Kaul [2007] ECR I-2213 – that it is clear from Article 74(2) of Regulation No 40/94 that, as a general rule and unless otherwise provided, the submission of facts and evidence by the parties remains possible after the expiry of the time-limits to which such submission is subject under the provisions of that regulation and that OHIM is in no way prohibited from taking account of facts and evidence which are submitted or produced late. The General Court then rejected the first part of the plea thus put forward by Mr Rintisch, finding essentially as follows, in paragraphs 33 to 42 of the judgment under appeal: ‘33 … [T]he possibility for parties to proceedings before OHIM to submit facts and evidence after the expiry of the periods specified for that purpose is conditional upon there being no provision to the contrary. … 34 In the present case, the Board of Appeal found … that there was an express provision to the contrary, according to which, as held in the case-law, the rejection of the opposition was mandatory, and not merely an option subject to OHIM’s discretion. The Board of Appeal considered that Rule 20(1) of [the Implementing Regulation], applicable to proceedings before it pursuant to Rule 50(1) of that regulation, prevented the discretion under Article 74(2) of Regulation No 40/94 from being exercised. ... 37 It is clear from reading [Rule 20(1) and the first and third subparagraphs of Rule 50(1) of the Implementing Regulation] together that, in the absence of any provision to the contrary, the Board of Appeal is bound to apply Rule 20(1) of [the Implementing Regulation] in the proceedings before it and, therefore, to find that the submission of evidence after the expiry of the period specified for that purpose by OHIM, in order to establish the existence, validity and scope of protection of the earlier mark, results in the rejection of the opposition without the Board of Appeal having a discretion in that regard ... 38 [Mr Rintisch] submits that the end of the third subparagraph of Rule 50(1) of [the Implementing Regulation], and, in particular, the reference therein to Article 74(2) of Regulation No 40/94, is precisely the provision to the contrary which would, in all events, preclude Rule 20(1) of that regulation from being applied to proceedings before the Board of Appeal. However, that argument cannot be upheld. 39 It must be noted at the outset that, since the notice of opposition was filed on 24 October 2006, the version of [the Implementing Regulation] applicable to the present case is that in force after the amendment by … Regulation … No 1041/2005 … In particular, according to recital 7 of that regulation, one of the aims of that amendment was to reframe completely the provisions concerning the opposition procedure in order to specify clearly, inter alia, the legal consequences of procedural deficiencies. 40 In addition to the risk of applying circular reasoning to the provisions in question, accepting the interpretation put forward by [Mr Rintisch] would result in the scope of Rule 20(1) of [the Implementing Regulation], as amended, being limited significantly. 41 If the evidence to establish the existence, validity and scope of an earlier mark – which, in accordance with the new wording of Rule 20(1) of [the Implementing Regulation], applicable to the present case, cannot be taken into account by the Opposition Division when it is filed late – could nevertheless be taken into consideration by the Board of Appeal by virtue of its discretionary power under Article 74(2) of Regulation No 40/94, the legal consequence laid down expressly in Regulation No 1041/2005 for that type of deficiency, namely the rejection of the opposition, might, in certain cases, have no practical effect. 42 It must therefore be held that the Board of Appeal did not err by finding that, in the circumstances of the present case, there was a provision which prevented evidence submitted late to OHIM by [Mr Rintisch] from being taken into account and that, therefore, the Board of Appeal did not have any discretion under Article 74(2) of Regulation No 40/94.’