Source: EURLEX
Language: en
Format: md

ORDER OF THE COURT (Eighth Chamber)

9 September 2010 ([\*](#Footnote*))

(Appeal – Action before the General Court against a decision of the Third Board of Appeal of OHIM – Regulation (EC) No 6/2002 – Time-limit allowed for bringing proceedings – Inadmissibility due to delay – Appeal clearly unfounded)

In Case C‑290/10 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 June 2010,

**Franssons Verkstäder AB,** established in Sundsvall (Sweden), represented by O. Öhlén, advokat,

appellant,

the other parties to the proceedings being:

**Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM),**

defendant at first instance,

**Lindner Recyclingtech GmbH,** established in Spittal (Austria),

intervener at first instance,

THE COURT (Eighth Chamber),

composed of C. Toader, President of Chamber, P. Kūris (Rapporteur) and L. Bay Larsen, Judges,

Advocate General: J. Mazák,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

**Order**

1        By its appeal, Franssons Verkstäder AB seeks to have set aside the order of the General Court of the European Union of 10
May 2010 in Case T‑98/10 *Franssons Verkstäder* v *OHIM and Lindner Recyclingtech**(Chaff Cutters)* (‘the order under appeal’), in which the General Court dismissed its action brought against the decision of the Third Board
of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 October 2009 (Case
R 690/2007‑3, ‘the contested decision’), relating to invalidity proceedings between Lindner Recyclingtech GmbH and Franssons
Verkstäder AB.

**The order under appeal**

2        By application lodged at the Registry on 1 March 2010, the appellant claimed that the General Court should:

–        annul the contested decision; and

–        restore the protection of the registered Community design in question.

3        By the order under appeal, the General Court dismissed the action as being manifestly inadmissible.

4        As to the failure to observe the time-limit for bringing an action, the General Court held, at paragraphs 5 to 7 of the order
under appeal, that the time-limit for bringing an action which was available to the appellant, in accordance with Article
61(5) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1) and Article 102(2)
of the Rules of Procedure of the General Court, had expired on 13 January 2010.

5        As regards the argument that the established practice in Sweden, permitting an application to be lodged at the offices of
the defendant, had misled the appellant, at paragraphs 9 to 11 of the order under appeal the General Court pointed out that
the appellant neither established nor relied on the existence of exceptional circumstances or of *force majeure*, and held that since the rules governing the time-limits applicable in the present case do not pose any particular difficulty
of interpretation, it cannot be accepted that this is a case of excusable error justifying derogation from the strict application
of those rules.

**The appeal**

6        Under Article 119 of the Rules of Procedure of the Court of Justice, where the appeal is clearly unfounded, the Court may
at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal by reasoned
order.

7        This provision must be applied to the present case.

8        The appellant relies upon two grounds in support of its appeal.

*The first ground of appeal*

9        The appellant puts forward a first ground of appeal alleging that the General Court failed to take into account the particular
circumstances specific to the case brought before it in assessing compliance with the time-limit for bringing an action. It
submits that it is customary in Sweden to contest a decision by addressing a document to the authority which took the decision.
In order to do that, the appellant sent a letter to OHIM on 14 December 2009 and received a reply by email only on 13 January
2010.

10      In accordance with Article 61(5) of Regulation No 6/2002, actions against decisions of the Boards of Appeal of OHIM are to
be brought before the Court of Justice within two months of the date of notification of the decision of the Board of Appeal
in question.

11      Moreover, Article 102(2) of the Rules of Procedure of the General Court provides that the prescribed time-limits are to be
extended on account of distance by a single period of ten days.

12      In the present case, it is common ground that the appellant was notified of the contested decision on 3 November 2009. Therefore
the General Court rightly held, at paragraph 7 of the order under appeal, that the time-limit for bringing proceedings had
expired on 13 January 2010, namely, before the application was made to the General Court.

13      In this respect, according to settled case-law, no derogation from the application of the European Union rules on procedural
time-limits may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting
to *force majeure*, in accordance with the second paragraph of Article 45 of the Statute of the Court of Justice, since the strict application
of those rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment
in the administration of justice (see, inter alia, Case C‑246/95 *Coen* [1997] ECR I-403, paragraph 21, and the order in Case C‑325/03 P *Zuazaga Meabe* v *OHIM* [2005] ECR I-403, paragraph 16 and case‑law cited).

14      The fact that the appellant sent a letter to OHIM assuming that it could act as is customary in Sweden is irrelevant to the
calculation of the present time-limit allowed for commencing proceedings since both the provisions of the Rules of Procedure
of the General Court and those of Regulation No 6/2002 are not ambiguous and do not pose any particular difficulty of interpretation
(see, to that effect, the order in Case C‑406/01 *Germany* v *Parliament and Council* [2002] ECR I-4561, paragraph 21).

15      In addition, it is necessary to point out that the European Union legal order does not, in principle, aim to define concepts
on the basis of one or more national legal systems unless there is express provision to that effect (see, in particular, Case
C‑314/06 *Société Pipeline Méditerranée et Rhône* [2007] ECR I‑12273, paragraph 21 and case-law cited).

16      Moreover, the appellant has not proved, or even relied on, the existence of unforeseeable circumstances or of *force majeure* which would make it possible to apply to it a derogation from the time-limit for bringing proceedings pursuant to the second
paragraph of Article 45 of the Statute of the Court of Justice.

17      Therefore, having regard to Article 61(5) of Regulation No 6/2002, in conjunction with Article 102(2) of the Rules of Procedure
of the General Court, it must be found that the General Court rightly held that the action brought before it by the appellant
on 1 March 2010, namely more than two months and ten days after notification of the contested decision, was out of time.

18      Consequently the first ground of appeal must be rejected as clearly unfounded.

*The second ground of appeal*

19      The appellant submits a second ground of appeal, to the effect that the General Court, in dismissing the application as inadmissible,
denied it the right to effective judicial protection.

20      In this respect, the right to effective judicial protection is in no way undermined by the strict application of European
Union rules concerning procedural time-limits which, according to settled case-law, meets the requirements of legal certainty
and the need to avoid all discrimination or arbitrary treatment in the administration of justice (see the order in *Germany* v *Parliament and Council*, paragraph 20).

21      Accordingly, in dismissing the appellant’s application as manifestly inadmissible on the ground that it was out of time, the
General Court did not prejudice the appellant’s right to effective judicial protection.

22      Consequently the second ground of appeal must be rejected as clearly unfounded.

23      It follows from all the foregoing considerations that the appeal must be dismissed in its entirety.

**Costs**

24      In accordance with Article 69(1) of the Rules of Procedure, which applies to the procedure on appeal pursuant to Article 118
thereof, a decision as to costs is to be given in the order which closes the proceedings. Since the present order was adopted
before the appeal was served on the respondent and therefore before the latter could have incurred costs, the appellant should
bear its own costs.

On those grounds, the Court (Eighth Chamber) hereby orders:

1.      **The appeal is dismissed.**

2.      **Franssons Verkstäder AB shall bear its own costs.**

[Signatures]

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[\*](#Footref*) Language of the case: English.

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