Source: EURLEX
Language: en
Format: md

ORDER OF THE VICE-PRESIDENT OF THE COURT

17 May 2022 ([\*](#Footnote*))

(Appeal – Intervention – EU trade mark – Cancellation proceedings – Other party to the proceedings before the Board of Appeal of the European Union Intellectual Property Office (EUIPO) granted leave to participate in the proceedings in the case before the General Court – Time limits – Point from which time starts to run – Unforeseeable circumstances – Rejection)

In Case C‑103/22 P(I),

APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 6 February 2022,

**Shanghai Panati Co.,** established in Shanghai (China), represented by J.‑B. Devaureix, abogado,

appellant,

the other parties to the proceedings being:

**Castel Frères,** established in Blanquefort (France), represented by T. de Haan, avocat,

applicant at first instance,

**European Union Intellectual Property Office (EUIPO),** represented by V. Ruzek, acting as Agent,

defendant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Szpunar,

makes the following

**Order**

1        By its appeal, Shanghai Panati Co. seeks to have set aside the order of the General Court of the European Union of 10 January 2022, *Castel Frères* v *EUIPO – Shanghai Panati (Representation of Chinese characters)* (T‑323/21, not published, EU:T:2022:7; ‘the order under appeal’), by which the latter decided that Shanghai Panati was not entitled to participate, as an intervener, in the proceedings in Case T‑323/21.

**Background to the dispute**

2        The background to the dispute is set out in paragraphs 1 to 5 of the order under appeal and may, for the purposes of the present proceedings, be summarised as follows.

3        On 8 January 2009, Castel Frères obtained from the European Union Intellectual Property Office (EUIPO) registration of an EU figurative mark.

4        On 29 May 2018, Shanghai Panati filed an application for revocation of that mark. After the Cancellation Division of EUIPO rejected that application, on 3 April 2020, the Fifth Board of Appeal of EUIPO, on 22 March 2021, upheld an appeal brought by Shanghai Panati and revoked that mark.

**The procedure before the General Court and the order under appeal**

5        By application lodged at the Court Registry on 8 June 2021, Castel Frères brought an action for annulment of the decision of the Fifth Board of Appeal of EUIPO.

6        In accordance with Article 178(3) of the Rules of Procedure of the General Court, the application was served on Shanghai Panati by letter from the Registrar of the General Court of 28 June 2021. Shanghai Panati acknowledged receipt of that letter on 12 July 2021.

7        On 23 September 2021, Shanghai Panati lodged a response at the Court Registry.

8        By a measure of organisation of procedure of 27 October 2021, the Court requested Shanghai Panati to submit its observations on the reasons for the late submission of its response.

9        By the order under appeal, the General Court decided that Shanghai Panati was not entitled to participate, as intervener, in the proceedings in Case T‑323/21.

10      First, the General Court examined, in paragraph 26 of the order under appeal, Shanghai Panati’s argument that its response should be regarded, in accordance with Article 58 of the Rules of Procedure of the General Court, as having been lodged within the prescribed time limit.

11      In that regard, it considered, in paragraph 23 of that order, that it followed from Article 179 of the Rules of Procedure of the General Court, read in conjunction with Article 60 of those rules, that the parties to the proceedings before EUIPO other than the applicant were required to submit their responses within a time limit of 2 months and 10 days from the service of the application.

12      The General Court added, in paragraphs 24 and 25 of that order, that, since Shanghai Panati had acknowledged receipt of the application on 12 July 2021, it had, pursuant to Article 58(1)(b) of the Rules of Procedure of the General Court, until 22 September 2021 to submit its response.

13      The General Court deduced from this, in paragraph 26 of that order, that Shanghai Panati had lodged its response outside the prescribed time limit.

14      Secondly, the General Court rejected Shanghai Panati’s argument that the late submission of its response was due to unforeseeable circumstances.

15      In that regard, after recalling the Court of Justice’s case-law on the concepts of unforeseeable circumstances or *force majeure* and excusable error, the General Court noted, in paragraph 31 of the order under appeal, that Shanghai Panati relied on human error in the internal handling of the letter by its services and, in paragraph 32 of that order, that a party could not rely on the inadequate functioning of its internal organisation or on a failure to apply its internal instructions to support its claim that the error which it or its employees committed was excusable, or the existence of unforeseeable circumstances or *force majeure*.

**Forms of order sought by the parties**

16      By its appeal, Shanghai Panati claims that the Court should:

–        set aside the order under appeal; and

–        grant it leave to intervene in Case T‑323/21.

17      Castel Frères and EUIPO contend that the Court should:

–        dismiss the appeal; and

–        order Shanghai Panati to pay the costs of the appeal proceedings.

**The appeal**

18      In support of its appeal, Shanghai Panati raises two ground of appeals in law relating, first, to the application of Article 58(1)(a) of the Rules of Procedure of the General Court and, secondly, to the application of Article 45 of the Statute of the Court of Justice of the European Union.

***The first ground of appeal***

*Arguments*

19      By its first ground of appeal, first, Shanghai Panati submits that it never claimed that the expiry of the time limit to present its response fell on a public holiday or a Sunday and that the General Court thus erred in its interpretation of that party’s arguments.

20      Secondly, the order under appeal is vitiated by a failure to state reasons in that the General Court did not explain in any way how the final limb of Article 58(1)(a) of its Rules of Procedure should be interpreted.

21      Thirdly, it follows from that provision that the day of service of the application cannot be included in the calculation of the period of 2 months and 10 days laid down in the Rules of Procedure of the General Court. Accordingly, the last relevant day for submitting a response in the present case was 23 September 2021.

22      Any other solution is tantamount to repealing Article 58(1)(a) of the Rules of Procedure of the General Court. Furthermore, the proposed interpretation of that provision is compatible with Article 58(1)(b) of those Rules of Procedure in that that provision should be applied only to determine whether the day of expiry of the two-month period from the service of the application is a public holiday or a Sunday.

23      That interpretation is, moreover, consistent with the common rules in force in the Member States, as shown by the procedural rules applicable in Spain.

24      Castel Frères and EUIPO contend that the first ground of appeal should be rejected.

*Assessment*

25      In the first place, it cannot be held that the General Court distorted the observations submitted by Shanghai Panati by stating, in paragraph 25 of the order under appeal, that 22 September 2021 was neither a Saturday, Sunday, nor a public holiday.

26      It does not appear from paragraph 25 of the order under appeal that the General Court considered that Shanghai Panati had argued that that date was a Saturday, Sunday or public holiday, since the finding made in that regard was merely intended to show that the time limit for Shanghai Panati to submit its response had in fact expired on that date.

27      In the second place, it must be pointed out, first, that, in the context of the appeal, the purpose of review by the Court of Justice is, inter alia, to consider whether the General Court addressed, to the requisite legal standard, all the arguments raised by the appellant and, secondly, that the ground of appeal alleging that the General Court failed to respond to arguments relied on at first instance amounts, essentially, to pleading a breach of the obligation to state reasons which derives from Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, and from Article 117 of the Rules of Procedure of the General Court (see, to that effect, order of the Vice-President of the Court of 20 July 2018, *Müller and Others* v *Parliament*, C‑187/18 P(I), not published, EU:C:2018:580, paragraph 29 and the case-law cited).

28      That obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and the reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, to that effect, order of the Vice-President of the Court of 20 July 2018, *Müller and Others* v *Parliament*, C‑187/18 P(I), not published, EU:C:2018:580, paragraph 30 and the case-law cited).

29      In the present case, the General Court did not explicitly state in the order under appeal how Article 58(1)(a) of its Rules of Procedure should be interpreted.

30      However, first, the General Court set out, in paragraphs 19 to 23 of that order, the rules which it considered relevant for calculating the period within which parties to the proceedings before EUIPO other than the applicant were required to lodge their response. Secondly, in paragraphs 24 to 26 of that order, it referred to the reasons why the application of those rules led to the finding that the period for Shanghai Panati to submit its response had expired on 22 September 2021.

31      It thus appears that the reasoning in paragraphs 19 to 26 of the order under appeal is sufficient to enable Shanghai Panati to understand why the General Court considered that its response had not been lodged within the period laid down for that purpose and to enable the Court of Justice to exercise its power of review in that regard.

32      Accordingly, the complaint alleging a failure to state reasons in paragraphs 19 to 26 must be dismissed as unfounded.

33      In the third place, as regards the argument that the reasoning followed by the General Court is contrary to Article 58(1)(a) of its Rules of Procedure, it should be noted that that provision provides that, where a time limit expressed in days, weeks, months or years is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place is not to be counted as falling within the time limit in question.

34      It follows that it is true that the day on which the application was served was not counted as part of the period within which Shanghai Panati was required to submit its response.

35      However, contrary to what Shanghai Panati maintains, the application of that rule implies that, when the time limit for appeal is expressed in calendar months, that period expires at the end of the day which, in the month indicated by the time limit, bears the same number as the day from which time was set running (see, by analogy, judgment of 15 January 1987, *Misset* v *Council*, 152/85, EU:C:1987:10, paragraph 8), as is provided explicitly, moreover, in Article 58(1)(b) of the Rules of Procedure of the General Court.

36      It must therefore be held that Article 58(1)(a) and Article 58(1)(b) of those Rules of Procedure set out, in a consistent manner, the rules defining, respectively, the date on which a procedural time limit starts to run and the date on which such a time limit ends (see, to that effect, order of 11 June 2020, *GMPO* v *Commission*, C‑575/19 P, not published, EU:C:2020:448, paragraph 30).

37      Moreover, the interpretation of Article 58 of the Rules of Procedure of the General Court relied on by Shanghai Panati, according to which the rule in Article 58(1)(b) of those Rules of Procedure should be applied only to determine whether the day on which the two-month period for service of the application expired is a public holiday or a Sunday, finds no support in the wording of that provision, which refers generally to the day on which the procedural time limit ‘ends’.

38      Furthermore, the fact that a different rule for calculating procedural time limits is applied in Spain or in other Member States does not warrant a departure from the rule arising from the clear wording of Article 58(1) of those Rules of Procedure, which makes no reference to national legal systems (see, to that effect, order of 9 September 2010, *Franssons Verkstäder* v *OHIM and Lindner Recyclingtech*, C‑290/10 P, not published, EU:C:2010:511, paragraph 15 and the case-law cited).

39      In those circumstances, it cannot be held that the General Court erred in law in holding, in paragraphs 24 and 25 of the order under appeal, that the interpretation of Article 58(1)(a) of its Rules of Procedure relied on by Shanghai Panati had to be dismissed and that the time limit for it to submit its response had expired on 22 September 2021, that is to say, on expiry of a single period of 10 days commencing after the day which, in the last month in which the time limit was calculated, bore the same number as the day on which the application was served.

40      Consequently, the first ground of appeal must be dismissed as unfounded.

***The second ground of appeal***

*Arguments*

41      By its second ground of appeal, Shanghai Panati argues that the General Court does not explain why a one-off error that occurred within an organisation which had proved itself to be efficient to date cannot be considered unforeseeable circumstances.

42      Furthermore, the circumstances relied on by Shanghai Panati are unusual and unforeseeable, as this is the first time that the letter reception system in question did not work properly. Those circumstances could not have been avoided, since they were not foreseeable. The appellant has shown due diligence, in that it strictly observed the time limit of 2 months and 10 days from the date of the stamp placed by its services.

43      In those circumstances, the Court should take into consideration that the lodging of the response did not prejudice any of the other parties to the proceedings.

44      Furthermore, if the appeal is dismissed, Shanghai Panati is deprived of its right to be heard and its right to effective judicial protection.

45      Castel Frères and EUIPO contend that the second ground of appeal should be rejected.

*Assessment*

46      With regard, in the first place, to the complaint that inadequate reasons were given for the part of the order under appeal dismissing Shanghai Panati’s argument concerning the existence of unforeseeable circumstances, it should be pointed out that the General Court recalled, in paragraphs 28 to 30 of the order under appeal, the conditions under which the prejudice of a right in consequence of the expiry of a procedural time limit may be dismissed due to the existence of unforeseeable circumstances, *force majeure*, or an excusable error. Furthermore, in paragraph 32 of that order, the General Court noted that a party could not rely for that purpose either on the inadequate functioning of its internal organisation or on a failure to apply its internal instructions.

47      Since the General Court found, in paragraph 31 of that order, that Shanghai Panati relied on human error in the internal processing of its mail, it deduced, in paragraph 33 of that order, from the principles recalled in paragraph 46 above, that Shanghai Panati had not established the existence of unforeseeable circumstances or of *force majeure*.

48      In the light of those factors, it appears that the reasoning in paragraphs 19 to 26 of the order under appeal is sufficient to enable Shanghai Panati to understand why the General Court considered that it had not established the existence of unforeseeable circumstances and to enable the Court of Justice to exercise its power of review in that regard.

49      Consequently, in accordance with the case-law referred to in paragraphs 27 and 28 above, the complaint that inadequate reasons were given for the part of the order under appeal dismissing Shanghai Panati’s argument concerning the existence of unforeseeable circumstances must be dismissed.

50      As regards, in the second place, the error of law allegedly committed by the General Court in ruling out the existence of unforeseeable circumstances, it should be recalled, first of all, that, under Article 45 of the Statute of the Court of Justice of the European Union, no right is to be prejudiced in consequence of the expiry of a time limit if the party concerned proves the existence of unforeseeable circumstances or of *force majeure*.

51      As the General Court emphasised, in essence, in paragraph 29 of the order under appeal, according to the Court of Justice’s settled case-law, the concept of *force majeure* or unforeseeable circumstances, which corresponds to exceptional circumstances, contains both an objective element relating to abnormal circumstances extraneous to the person concerned, and a subjective element involving the obligation of that person concerned to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices (order of the Vice-President of the Court of 20 July 2018, *Müller and Others* v *Parliament*, C‑187/18 P(I), not published, EU:C:2018:580, paragraph 39 and the case-law cited).

52      Therefore, errors committed by an applicant’s employees or by service providers used by the applicant in the conduct of its business cannot, in so far as they do not constitute circumstances unconnected with the applicant, be relied on to demonstrate the existence of unforeseeable circumstances or of *force majeure* (see, to that effect, judgments of 15 December 1994, *Bayer* v *Commission*, C‑195/91 P, EU:C:1994:412, paragraph 33, and of 22 September 2011, *Bell & Ross* v *OHIM*, C‑426/10 P, EU:C:2011:612, paragraph 50).

53      Therefore, even supposing that the human error relied on by Shanghai Panati was indeed unforeseeable and that it had exercised due care, those factors cannot be regarded as establishing that the General Court erred in law in holding, in paragraph 32 of the order under appeal, that a party may not rely either on the inadequate functioning of its internal organisation or on a failure to apply its internal instructions in support of the existence of unforeseeable circumstances or of *force majeure*.

54      Next, Shanghai Panati’s argument that it could be granted a derogation from the time limit for the submission of the response on the ground that that derogation would not prejudice the other parties must be rejected, since the strict application of the procedural rules is not intended solely to protect the procedural rights of the parties but, more broadly, to meet the requirement of legal certainty and the need to avoid discrimination or arbitrary treatment in the administration of justice (see, to that effect, judgment of 23 April 2013, *Gbagbo and Others* v *Council*, C‑478/11 P to C‑482/11 P, EU:C:2013:258, paragraph 71).

55      Finally, the General Court cannot be validly criticised for disregarding Shanghai Panati’s right to be heard and its right to effective judicial protection by excluding the existence of unforeseeable circumstances or of *force majeure*.

56      It is settled case-law of the Court that the right to be heard and the right to effective judicial protection are in no way undermined by the strict application of EU rules concerning procedural time limits (see, to that effect, order of 2 October 2014, *Page Protective Services* v *EEA*S, C‑501/13 P, not published, EU:C:2014:2259, paragraph 39, and judgment of 19 June 2019, *RF* v *Commission*, C‑660/17 P, EU:C:2019:509, paragraph 57 and the case-law cited).

57      In the light of those factors, the second ground of appeal must be rejected as unfounded and, consequently, the appeal must be dismissed in its entirety.

**Costs**

58      In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs.

59      Under Article 138(1) of the Rules of Procedure, which applies to the appeal procedure by virtue of Article 184(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

60      Since Castel Frères and EUIPO have applied for costs against Shanghai Panati and the latter has been unsuccessful, Shanghai Panati must be ordered to bear its own costs and to pay those incurred by Castel Frères and EUIPO.

On those grounds, the Vice-President of the Court hereby orders:

1.      **The appeal is dismissed.**

2.      **Shanghai Panati Co. shall bear its own costs and pay those incurred by Castel Frères and by the European Union Intellectual Property Office (EUIPO).**

Luxembourg, 17 May 2022.

|  |  |  |
| --- | --- | --- |
| A. Calot Escobar |  | L. Bay Larsen |

|  |  |  |
| --- | --- | --- |
| Registrar |  | Vice-president |

---

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

[Top](#document1)