Bernhard Rintisch v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2013-10-03
22. 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).
23. 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).
24. Since the first ground of appeal put forward by the appellant relates only to the discretion which he claims OHIM’s Board of Appeal enjoys, it is appropriate, in order to determine whether there is a provision to the contrary liable to preclude such discretion, to refer to the rules governing the appeal proceedings.
25. In that regard, the first subparagraph of Rule 50(1) of the Implementing Regulation lays down that, unless otherwise provided, the provisions relating to proceedings before the department which has made the decision against which the appeal is brought are to be applicable to appeal proceedings mutatis mutandis .
26. The General Court found, in paragraph 36 of the judgment under appeal, that it followed from that provision that the Board of Appeal was bound to apply Rule 20(1) of the Implementing Regulation 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, entails the rejection of the opposition, and the Board of Appeal has no discretion in that regard.
27. In so doing, the General Court adopted an incorrect interpretation of Rule 50(1) of the Implementing Regulation, which misconstrues the scope of the third subparagraph of that provision.
28. Although the first subparagraph of Rule 50(1) 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 appeal proceedings mutatis mutandis , the third subparagraph of Rule 50(1) constitutes a special rule derogating from that principle. That special rule is specific to the appeal proceedings brought against the Opposition Division’s decision and specifies the rules, before the Board of Appeal, governing the facts and evidence submitted after the expiry of the time-limits set or specified at first instance.
29. The third subparagraph of Rule 50(1) of the Implementing Regulation must therefore be applied, at this particular stage of the appeal proceedings against the Opposition Division’s decision, in place of the provisions relating to the proceedings before that division, which include Rule 20(1) of the Implementing Regulation.
30. It must be emphasised here that that special rule was introduced in the Implementing Regulation when it was amended by Regulation No 1041/2005, which, according to recital 7 thereof, seeks to specify clearly the legal consequences of procedural deficiencies in the opposition proceedings. That statement confirms that the consequences, before the Board of Appeal, of the delay in the submission of evidence before the Opposition Division must be determined on the basis of that rule.
31. Under the third subparagraph of Rule 50(1) of the Implementing Regulation, where the appeal is directed against a decision of an Opposition Division, the Board of Appeal must limit its examination of the appeal to facts and evidence presented within the time-limits set in or specified by the Opposition Division, unless the Board considers that additional or supplementary facts and evidence must be taken into account pursuant to Article 74(2) of Regulation No 40/94.
32. 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.
33. Consequently, in finding, in paragraph 41 of the judgment under appeal, that Rule 20(1) of the Implementing Regulation constituted a provision to the contrary which prevented evidence submitted late to OHIM by the appellant from being taken into account by the Board of Appeal, with the result that the Board of Appeal did not have any discretion under Article 74(2) of Regulation No 40/94 for the purposes of taking into account that evidence, the General Court committed an error of law which vitiates its judgment.
34. 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).
37. 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).
38. 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).
44. Contrary to Mr Rintisch’s claims, the Board of Appeal is not required, when exercising its discretion under Article 74(2) of Regulation No 40/94, to examine the three criteria referred to in paragraph 38 above when one of those criteria alone is sufficient to establish that it must not take into account the evidence submitted late at issue (see, to that effect, order of 4 March 2010 in Case C‑193/09 P Kaul  v OHIM , paragraph 38).
49. 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).