Bernhard Rintisch v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2013-10-03
2. Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) was repealed and replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), which entered into force on 13 April 2009. However, having regard to the material time, the present dispute continues to be governed by Regulation No 40/94.
23. As the Court has held, it results from the wording of that provision that, as a general rule and unless otherwise specified, 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 Regulation No 40/94 and that OHIM is in no way prohibited from taking account of facts and evidence which are submitted or produced late ( OHIM  v Kaul , paragraph 42, and Case C‑621/11 P New Yorker SHK Jeans  v OHIM  [2013] ECR I‑0000, paragraph 22).
24. In stating that the latter ‘may’, in such a case, decide to disregard evidence, Article 74(2) grants OHIM broad discretion to decide, while giving reasons for its decision in that regard, whether or not to take such evidence into account ( OHIM  v Kaul , paragraph 43, and New Yorker SHK Jeans  v OHIM , paragraph 23).
33. The Implementing Regulation therefore expressly provides that the Board of Appeal enjoys, when examining an appeal directed against a decision of the Opposition Division, the discretion deriving from the third subparagraph of Rule 50(1) of the Implementing Regulation and from Article 74(2) of Regulation No 40/94 to decide whether or not to take into account additional or supplementary facts and evidence which were not presented within the time-limits set or specified by the Opposition Division.
35. However, it should be pointed out that where the grounds of a judgment of the General Court disclose an infringement of EU law but the operative part of the judgment is shown to be well founded for other legal reasons, the appeal must be dismissed (Case C‑210/98 P Salzgitter  v Commission  [2000] ECR I‑5843, paragraph 58, and Case C‑352/09 P ThyssenKrupp Nirosta  v Commission  [2011] ECR I‑2359, paragraph 136).
38. Those reasons – given as alternative grounds by the Board of Appeal for refusing to take into account the evidence submitted late by Mr Rintisch – are capable of remedying the defect vitiating the contested decision only if they permit the inference that the Board of Appeal actually exercised its discretion under Article 74(2) of Regulation No 40/94, for the purposes of deciding, in a reasoned manner and having regard to all the relevant circumstances, whether it was necessary to take into account the evidence submitted to it late, in order to give its decision (see, to that effect, Case C‑610/11 P Centrotherm Systemtechnik  v OHIM and centrotherm Clean Solutions  [2013] ECR I‑0000, paragraph 110).
39. In that regard, the Court has held, inter alia, that where OHIM is called upon to give judgment in the context of opposition proceedings, taking into account facts or evidence produced late is particularly likely to be justified where OHIM considers, first, that the material which has been produced late is, on the face of it, likely to be genuinely relevant to the outcome of the opposition brought before it and, second, that the stage of the proceedings at which that late submission takes place and the circumstances surrounding it do not argue against such matters being taken into account ( OHIM  v Kaul , paragraph 44, and Centrotherm Systemtechnik  v OHIM and centrotherm Clean Solutions , paragraph 113).
50. According to consistent case-law, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court, and Article 112(1)(c) of the Rules of Procedure of the Court, in the version in force at the date when the appeal was brought (now Article 168(1)(d) of the Rules of Procedure of the Court), that an appeal must state precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or plea concerned is inadmissible (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others  v Commission  [2005] ECR I‑5425, paragraph 426, and Case C‑487/06 P British Aggregates  v Commission  [2008] ECR I‑10515, paragraph 121).