European Union Intellectual Property Office v European Food SA.
Date: 2018-01-24
33


Accordingly, in stating, in paragraph 56 of the judgment under appeal, that Regulation No 207/2009 contains no provision fixing a time limit for the submission of evidence, the General Court made an error of law. However, it follows from settled case-law of the Court of Justice that if the grounds of a judgment of the General Court are an infringement of EU law but its operative part is shown to be well founded for other legal reasons, the appeal must be dismissed (judgment of 21 July 2016, EUIPO v Grau Ferrer, C‑597/14 P, EU:C:2016:579, paragraph 29 and the case-law cited).
36


Second, it follows from case-law that no reason of principle relating to the nature of the proceedings under way before the Board of Appeal or to the jurisdiction of that department precludes it, for the purpose of deciding on the appeal before it, from taking into account facts and evidence produced for the first time at the appeal stage (judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 49).
37


Indeed, it follows from Article 64(1) of Regulation No 207/2009 that, through the effect of the appeal brought before it, the Board of Appeal may exercise any power within the competence of the department which was responsible for the contested decision and is therefore called upon, in this respect, to conduct a new, full examination as to the merits of the appeal, in terms of both law and fact (judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 57).
38


As follows from Articles 63 and 78 of Regulation No 207/2009, for the purposes of the examination as to the merits of the appeal brought before it, the Board of Appeal is to invite the parties, as often as necessary, to file observations, within a period to be fixed by the Board, on communications from the other parties or issued by itself and may also decide on measures of inquiry, including the production of factual or evidential material. Such provisions demonstrate the possibility of seeing the underlying facts of a dispute multiply at various stages of the proceedings before EUIPO (judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 58).
48


In that respect, it should be noted that, although the first subparagraph of Rule 50(1) of Regulation No 2868/95, contained in Title X, ‘Appeals’, lays down the principle that the provisions relating to proceedings before the department which has made the decision against which the appeal is brought are to be applicable to the appeal proceedings mutatis mutandis, the third subparagraph of that same provision constitutes a special rule derogating from that principle. That special rule is specific to appeal proceedings brought against the decision of the Opposition Division and specifies the rules, before the Board of Appeal, governing facts and evidence submitted after the expiry of the time limits set or specified at first instance (see, to that effect, judgment of 3 October 2013, Rintisch v OHIM, C‑120/12 P, EU:C:2013:638, paragraph 28).
55


It can be inferred from the wording of that article 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 periods governing such submission provided for in Regulation No 207/2009 and that EUIPO is in no way prohibited from taking account of facts and evidence which are submitted belatedly (see, to that effect, judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 42).
56


However, it is equally apparent from that wording that a party has no unconditional right to have facts and evidence which were invoked or submitted out of time taken into account by EUIPO. In stating that the latter ‘may’, in such a case, decide to disregard facts and evidence, Article 76(2) of Regulation No 207/2009 grants EUIPO a wide discretion to decide, while giving reasons for its decision in that regard, whether or not to take such information into account (see, to that effect, judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 43).
57


It must be noted that taking facts or evidence into account that have been submitted out of time is likely to be justified where EUIPO considers, first, that the material that has been produced late is, on the face of it, likely to be genuinely relevant 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 (see, to that effect, judgments of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 44, and of 3 October 2013, Rintisch v OHIM, C‑120/12 P, EU:C:2013:638, paragraph 38).
58


Consequently, the taking into account of that additional evidence is in no way a ‘favour’ granted to one party or the other, but rather must result from an objective, reasoned exercise of the discretion conferred on EUIPO by Article 76(2) (judgment of 26 September 2013, Centrotherm Systemtechnik v OHIM and centrotherm Clean Solutions, C‑610/11 P, EU:C:2013:593, paragraph 111).
63


In accordance with Article 168(1)(b) and Article 169(2) of the Rules of Procedure of the Court of Justice, an appeal must indicate precisely the contested elements of the judgment that the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (see, to that effect, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 29).
64


The Court has also held that a ground of appeal that simply makes general statements and contains no specific indications as to the points of the judgment under appeal which may be vitiated by an error of law must be dismissed as manifestly inadmissible (see, to that effect, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 30).