Case C-426/10 P

Bell & Ross BV

v

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

(Appeal – Signed original application lodged out of time – Defect capable of being rectified)

Summary of the Judgment

1. Appeals – Pleas in law – Plea submitted for the first time in the context of the appeal – Plea relating to the conditions for filing an application before the General Court – Contested order adopted without a hearing of the parties – Admissibility

(Rules of Procedure of the General Court, Art. 111)

2. Procedure – Application initiating proceedings – Procedural requirements – Failure to submit the signed original of the application before the expiry of the time-limit – Inadmissibility

(Rules of Procedure of the General Court, Art. 44(6))

3. Procedure – Time-limit for instituting proceedings – Action time-barred – Unforeseeable circumstances or force majeure – Definition – Excusable error – Definition

(Statute of the Court of Justice, Art. 45, second para.)

1. In the context of an appeal against an order of the General Court made on the basis of Article 111 of the Rules of Procedure of the General Court, which does not require the parties to be heard before such a decision is adopted, the appellant cannot be criticised for having omitted to raise, in the application, arguments relating to the conditions for its lodging. The purpose of a ground of appeal alleging breach of point 57(b) of the Practice Directions to Parties is therefore not to modify the subject-matter of the proceedings before the General Court and is, accordingly, admissible.

(see para. 37)

2. The failure to submit the signed original of the application is not one of the defects capable of being rectified under Article 44(6) of the Rules of Procedure of the General Court. Thus, an application which is not signed by a lawyer is affected by a defect such as to entail the inadmissibility of the action upon the expiry of the procedural time-limits, and cannot be put in order. The strict application of those procedural rules serves the requirements of legal certainty and the necessity of avoiding any discrimination or arbitrary treatment in the administration of justice.

(see paras 42-43)

3. With regard to time-limits for bringing proceedings, the concept of excusable error must be strictly construed and can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally experienced trader.

The concept of unforeseeable circumstances contains an objective element relating to abnormal circumstances unconnected with the trader in question and a subjective element involving the obligation, on his part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the trader must pay close attention to the course of the procedure set in motion and, in particular, demonstrate diligence in order to comply with the prescribed time-limits.

The responsibility for preparing, monitoring and checking procedural documents to be lodged at the Registry rests with the lawyer of the party concerned. Accordingly, the fact that the confusion between the original and the copies of the application is attributable to the intervention of a third party, a company instructed by the appellant to make copies, cannot be considered to be exceptional circumstances or abnormal events unconnected to the appellant entitling it to rely on excusable error or unforeseeable circumstances.

(see paras 47-48, 50)

JUDGMENT OF THE COURT (Second Chamber)

22 September 2011 ( * )

(Appeal – Signed original application lodged out of time – Defect capable of being rectified)

In Case C‑426/10 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 24 August 2010,

Bell & Ross BV, established in Zoetermeer (Netherlands), represented by S. Guerlain, avocat,

appellant,

the other parties to the proceedings being:

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Folliard-Monguiral, acting as Agent,

defendant at first instance,

Klockgrossisten i Norden AB, established in Upplands Väsby (Sweden),

intervener at first instance,

THE COURT (Second Chamber),

composed of J.N. Cunha Rodrigues, President of the Chamber, A. Rosas, U. Lõhmus, A. Ó Caoimh and P. Lindh (Rapporteur), Judges,

Advocate General: E. Sharpston,

Registrar: A. Calot Escobar,

after hearing the Opinion of the Advocate General at the sitting on 9 June 2011,

gives the following

Judgment

1 By its appeal, Bell & Ross BV (‘Bell & Ross’) seeks to have set aside the order of the General Court of the European Union of 18 June 2010 in Case T‑51/10 Bell & Ross v OHIM (‘the order under appeal’), by which that court dismissed as manifestly inadmissible, by reason of its lateness, the appellant’s action against a decision of the Third Board of Appeal of OHIM of 27 October 2009 (case R 1267/2008‑3) relating to invalidity proceedings between Klockgrossisten I Norden AB and Bell & Ross.

Legal context

Statute of the Court of Justice

2 The second paragraph of Article 21 of the Statute of the Court of Justice of the European Union provides, inter alia, that an application must be accompanied, where appropriate, by the measure the annulment of which is sought. If that document is not submitted with the application, ‘the Registrar shall ask the party concerned to produce [it] within a reasonable period, but in that event the rights of the party shall not lapse even if such [a] document … [is] produced after the time‑limit for bringing proceedings’.

3 Article 45 of the Statute of the Court of Justice is worded as follows:

‘Periods of grace based on considerations of distance shall be determined by the Rules of Procedure.

No right shall 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.’

Rules of Procedure of the General Court

4 Article 43 of the Rules of Procedure of the General Court provides:

‘1. The original of every pleading must be signed by the party’s agent or lawyer.

The original, accompanied by all annexes referred to therein, shall be lodged together with five copies for the [General Court] and a copy for every other party to the proceedings. Copies shall be certified by the party lodging them.

…

6. [T]he date on which a copy of the signed original of a pleading … is received at the Registry by telefax or other technical means of communication available to the [General Court] shall be deemed to be the date of lodgment for the purposes of compliance with the time-limits for taking steps in proceedings, provided that the signed original of the pleading, accompanied by the annexes and copies referred to in the second subparagraph of paragraph 1, is lodged at the Registry no later than ten days thereafter. Article 102(2) shall not be applicable to this period of ten days.

…’

5 Article 44 of those Rules of Procedure states:

‘…

3. The lawyer acting for a party must lodge at the Registry a certificate that he is authorised to practise before a Court of a Member State or of another State which is a party to the EEA Agreement.

4. The application shall be accompanied, where appropriate, by the documents specified in the second paragraph of Article 21 of the Statute of the Court of Justice.

5. An application made by a legal person governed by private law shall be accompanied by:

(a) the instrument or instruments constituting and regulating that legal person or a recent extract from the register of companies, firms or associations or any other proof of its existence in law;

(b) proof that the authority granted to the applicant’s lawyer has been properly conferred on him by someone authorised for the purpose.

5a. An application submitted … pursuant to an arbitration clause contained in a contract governed by public or private law, entered into by the Community or on its behalf, shall be accompanied by a copy of the contract which contains that clause.

6. If an application does not comply with the requirements set out in paragraphs 3 to 5 of this Article, the Registrar shall prescribe a reasonable period within which the applicant is to comply with them whether by putting the application itself in order or by producing any of the above-mentioned documents. If the applicant fails to put the application in order or to produce the required documents within the time prescribed, the [General Court] shall decide whether the non-compliance with these conditions renders the application formally inadmissible.’

Instructions to the Registrar

6 Article 7 of the Instructions to the Registrar of the Court of First Instance of the European Communities (now ‘the General Court’) of 5 July 2007 (OJ 2007 L 232, p. 1; ‘the Instructions to the Registrar’) provides:

‘1. The Registrar shall ensure that documents placed on the file are in conformity with the provisions of the Statute of the Court of Justice, the Rules of Procedure, the Practice Directions to parties and these Instructions.

If necessary, he shall allow the parties a period of time for making good any formal irregularities in the documents lodged.

Service of a pleading shall be delayed in the event of non-compliance with the provisions of the Rules of Procedure referred to in points 55 and 56 of the Practice Directions to parties.

Non-compliance with the provisions referred to in points 57 and 59 of the Practice Directions to parties shall delay, or may delay, as the case may be, the service of a pleading.

…

3. Without prejudice to Article 43(6) of the Rules of Procedure, concerning the lodgment of documents by fax or other technical means of communication, the Registrar shall accept only documents bearing the original signature of the party’s lawyer or agent.

…’

Practice Directions to Parties

7 The General Court’s Practice Directions to Parties, in the version of 5 July 2007 (OJ 2007 L 232, p. 7; ‘the Practice Directions to Parties’), provide, in section B entitled ‘Lodgment of pleadings’, in particular:

‘…

7. The original signature of the lawyer or agent acting for the party concerned must appear at the end of the pleading. Where more than one representative is acting for the party concerned, the signature of one representative shall be sufficient.

…

9. Each copy of every procedural document required to be produced by the parties pursuant to the second subparagraph of Article 43(1) of the Rules of Procedure must be initialled by the lawyer or agent of the party concerned and certified by him as a true copy of the original document.’

8 Section F of the Practice Directions to Parties, entitled ‘Regularisation of pleadings’, states, at points 55 to 59, the circumstances in which applications may be regularised.

9 According to point 55, a reasonable period is to be prescribed for the purposes of putting in order an application which does not comply with the following requirements set out in Article 44(3) to (5) of the Rules of Procedure of the General Court:

‘(a) production of the certificate of the lawyer’s authorisation to practise …;

(b) proof of the existence in law of a legal person governed by private law …;

(c) authority …;

(d) proof that that authority has been properly conferred by someone authorised for the purpose …;

(e) production of the contested measure (action for annulment) … .’

10 Point 56 of the Practice Directions to Parties provides:

‘In intellectual property cases in which the lawfulness of a decision of a Board of Appeal of OHIM is called into question, an application which does not comply with the following requirements under Article 132 of the Rules of Procedure shall not be served on the other party/parties, and a reasonable period shall be prescribed for the purposes of putting the application in order:

(a) the names and addresses of the parties to the proceedings before the Board of Appeal (first subparagraph of Article 132(1) of the Rules of Procedure);

(b) the date on which the decision of the Board of Appeal was notified (second subparagraph of Article 132(1) of the Rules of Procedure);

(c) the contested decision annexed (second subparagraph of Article 132(1) of the Rules of Procedure).’

11 Point 57 of those instructions provides, inter alia:

‘If an application does not comply with the following procedural rules, service of the application shall be delayed and a reasonable period shall be prescribed for the purposes of putting the application in order:

…

(b) original signature of the lawyer or agent at the end of the application (point 7 of the Practice Directions);

…

(o) production of true certified copies of the application (second subparagraph of Article 43(1) of the Rules of Procedure; point 9 of the Practice Directions).’

12 Point 58 of the Practice Directions to Parties provides that, if the application does not comply with the procedural rules relating to the address for service, to the certificate of authorisation to practise in respect of any additional lawyer, to the summary of the arguments or to the translation into the language of the case of annexes, the application is to be served and a reasonable period prescribed for the purposes of putting it in order.

13 Finally, point 59 lays down, as a principle or possibility, as the case may be, the need for regularisation where the number of pages of the application exceeds the number prescribed by those practice directions, and provides for delaying service in such a case.

The background to the case

14 By application received by fax at the Registry of the General Court on 22 January 2010, the appellant brought an action against the decision of the Third Board of Appeal of OHIM of 27 October 2009. That application was received at the Registry before the expiry, on 25 January 2010, of the time-limit for bringing proceedings.

15 By letter of 28 January 2010, the appellant indicated that it was transmitting to the Registry of the General Court the original of the application sent by fax on 22 January 2010 and its annexes, as well as seven sets of true copies of the application and the documents required by Article 44(3) to (5) of the Rules of Procedure of the General Court.

16 On 2 February 2010, the Registry contacted the appellant to bring to its attention the fact that the original of the application could not be identified with certainty from among the documents lodged on 1 February 2010.

17 By letter of 3 February 2010, the appellant’s lawyer sent the copy of the application which remained on his file to the Registry, explaining:

‘Since I am convinced that I previously sent you the original document with a set of photocopies, I cannot tell you whether or not the attached document is the original. I am of the view that it is the copy that we kept in the file. I leave you to examine it, and accordingly look forward to hearing your views.’

18 On 5 February 2010, the Registry of the General Court informed the appellant that it had concluded that that document was an original, since the black ink smudged slightly after a damp cloth had been applied to the signature.

20 By letter of 12 February 2010, the appellant claimed an excusable error to justify the lodgment of the signed original application after the expiry of the abovementioned 10-day period.

21 The General Court did not serve the application on OHIM.

The order under appeal

22 By the order under appeal, the General Court dismissed the application as manifestly inadmissible on the basis of Article 111 of its Rules of Procedure.

23 The General Court recalled that Article 43(6) of its Rules of Procedure provides for a 10-day period within which to lodge the original of an application transmitted by fax. Taking account of this additional period, the original of the application should have reached the Registry before the expiry of that period on 1 February 2010. Since the original of the application was received on 5 February 2010, however, the application was lodged out of time, and there was no excusable error permitting derogation from the time-limit for bringing proceedings, on the following grounds:

‘15 The application was received by fax at the Registry of the General Court on 22 January 2010, namely before expiry of the time-limit for bringing an action.

16 However, pursuant to Article 43(6) of the Rules of Procedure, the date on which a copy of the signed original of a pleading is received at the Registry of the Court by fax is to be deemed to be the date of lodgment for the purposes of compliance with procedural time-limits only if the signed original of the pleading is lodged at the Registry no later than 10 days after receipt of the fax.

17 In the present case, on 1 February 2010 the applicant lodged seven uncertified copies of the application at the Registry of the Court. The signed original of the application was received at the Registry of the Court on 5 February 2010, that is to say, after the expiry of the 10-day period provided for in Article 43(6) of the Rules of Procedure. Thus, in accordance with that provision, only the date of lodgment of the signed original of the application, namely 5 February 2010, can be taken into consideration for the purposes of the time-limit for bringing an action. Consequently, it must be concluded that the application was lodged out of time [order of 28 April 2008 in Case T‑358/07 Publicare Marketing Communications v OHIM , not published in the ECR, paragraph 13].

18 In its letter of 12 February 2010, the applicant asserted the existence of an excusable error to justify a derogation from the time-limit at issue.

19 In that regard, it must be recalled that, concerning time-limits for initiating proceedings, the concept of excusable error must be strictly construed and can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally experienced trader (Case T‑12/90 Bayer v Commission [1991] ECR II‑219, paragraph 29; and order of 11 December 2006 in Case T‑392/05 MMT v Commission , not published in the ECR, paragraph 36 and the case-law cited).

20 In the present case, the applicant asserts that, having used a service provider to make the required copies, it is able to account for the failure to produce the signed original only by a mix-up, during the preparation of the file lodged at the Registry of the Court, between the copies and the signed original of the application, returned by the service provider.

21 In addition, the applicant’s lawyer states that he usually signs in black ink, there being no rule prescribing the use of an ink of a different colour.

22 Consequently, given the quality of the copies made, it was extremely difficult to distinguish the signed original from a copy, as the original signature was the same colour as its copy.

23 The applicant also submits that, in requiring itself to try to smudge the ink of the signature by applying a damp cloth to it in order to identify the signed original of the application, the Registry of the Court applied a standard of diligence which cannot systematically be required of applicants.

24 The applicant adds finally that point 57(o) of the Practice Directions to Parties, which permits the regularisation, within a reasonable period, of applications which do not comply with certain procedural rules, allows the production of the missing true certified copies of the application, with the result that that point is likely to reduce applicants’ vigilance as to the need to distinguish the signed original of the application from copies of it.

25 However, in the light of the foregoing, the applicant has not demonstrated the existence of exceptional circumstances, or provided proof of the diligence required of a normally experienced trader within the meaning of the case-law recalled at paragraph 19 above.

26 Indeed the applicant itself admits that it was the source of a mix-up during the preparation of the file to be sent to the Registry of the Court.

27 Furthermore, it does not appear that the difficulty in distinguishing the signed original of the application from the copies could not be overcome by recourse to any method allowing the signed original of the application to be treated separately, in such a way as to avoid its being lodged at the Registry of the Court after the expiry of the 10-day period provided for in Article 43(6) of the Rules of Procedure.

29 In any event, it was for the applicant to distinguish the signed original of the application from the copies.

30 It follows from all of the foregoing that the application is out of time and must be dismissed as manifestly inadmissible, and there is no need to serve it on OHIM.’

Forms of order sought by the parties

24 By its appeal, Bell & Ross claims that the Court should:

– set aside the order under appeal;

– declare the action for annulment in Case T‑51/10 admissible and, consequently, refer the case back to the General Court for decision on the merits; and

– order OHIM to pay the costs of the appeal and the first-instance proceedings.

25 OHIM contends that the Court should:

– dismiss the appeal; and

– order the appellant to pay the costs.

Consideration of the appeal

26 In support of its appeal, the appellant puts forward six pleas in law.

The first plea, alleging breach of Article 111 of the Rules of Procedure of the General Court

27 The appellant states that the Advocate General was not heard, in breach of Article 111 of the Rules of Procedure of the General Court.

28 In response to that plea, it must be noted that, although Article 111 of the Rules of Procedure of the General Court, on which the order under appeal is based, requires the Advocate General to be heard, Article 2(2) of those rules of procedure states that references to the Advocate General ‘apply only where a Judge has been designated as Advocate General’. In the present case, however, no judge was designated as Advocate General in the proceedings before the General Court.

29 This plea must therefore be dismissed as unfounded.

The second plea, alleging breach of Article 43 of the Rules of Procedure of the General Court

Arguments of the parties

30 The appellant complains that the General Court wrongly interpreted Article 43 of its Rules of Procedure in considering that the application was lodged out of time. It observes that, unlike the circumstances giving rise to the order in PubliCare Marketing Communications v OHIM , referred to at paragraph 17 of the order under appeal, the Registry received seven copies of the application before the expiry of the time-limit for bringing proceedings. The appellant argues that the relevant issue is that of identifying the original application. Article 43 does not specify detailed rules for the signing of the application (colour, type of pen, etc). The damp cloth test to which the General Court had recourse is questionable, as some inks do not smudge. In the order under appeal, the General Court, without referring to the method which allowed it to distinguish the original from the copy, therefore imposed conditions additional to those set out in Article 43 of its Rules of Procedure.

31 OHIM submits that this plea is clearly unfounded.

Findings of the Court

32 Contrary to the appellant’s claim, the order under appeal does not impose any particular requirement in terms of detailed rules for the signing of an application, or the means by which the original nature of the signature that must appear on it may be evidenced.

33 Moreover, it is not disputed that the version of the application received at the Registry after the expiry of the time-limit for bringing proceedings bore the lawyer’s original signature.

34 This plea is therefore unfounded.

The third plea, alleging non-compliance with Article 7(1) of the Instructions to the Registrar and point 57(b) of the Practice Directions to Parties

Arguments of the parties

35 The appellant submits that the General Court erred in law by failing to provide an opportunity to put the application in order pursuant to Article 7(1) of the Instructions to the Registrar and point 57(b) of the Practice Directions to Parties.

36 OHIM argues that this plea is not admissible as the appellant did not invoke breach of point 57(b) of the Practice Directions to Parties. As to the substance, OHIM submits that the plea is unfounded.

Findings of the Court

37 Concerning the admissibility of this plea, it must be noted that the order under appeal was made on the basis of Article 111 of the Rules of Procedure of the General Court, which does not require that the parties be heard before the adoption of such a decision. In those circumstances, the appellant cannot be criticised for having omitted to raise, in the application, arguments relating to the conditions for its lodgment. The purpose of the third plea is therefore not to modify the subject-matter of the proceedings before the General Court. It is, accordingly, admissible.

38 As to the substance, it must be noted that, at paragraph 17 of the order under appeal, the General Court observed that the signed original of the application was received at the Registry of the General Court out of time. It observed, further, at paragraph 28 of that order, that failure to lodge the signed original of the application within the time-limits is not one of the cases for which regularisation of applications is provided at points 55 to 59 of the Practice Directions to Parties.

39 It is not disputed that the original of the application reached the Registry of the General Court only after the expiry of the time-limit for instituting proceedings.

40 Article 43(1) of the Rules of Procedure of the General Court requires the lodgment of the original of every pleading, signed by the party’s lawyer.

41 Under Article 43(6) of the Rules of Procedure, the date on which a copy of the signed original of a pleading is received at the Registry of the General Court by fax is to be deemed to be the date of lodgment for the purposes of compliance with the time-limits for taking steps in proceedings only if the signed original of the pleading is lodged at the Registry no later than 10 days after receipt of that fax.

44 It follows that this plea is unfounded.

The fourth and fifth pleas, alleging excusable error or unforeseeable circumstances

Arguments of the parties

45 The appellant pleads an excusable error. It explains that, given the considerable volume of copies required (2 651 pages in total), it had to turn to an external service provider. The latter forgot to include one document in the package sent to the General Court, an error which the lawyer was able to put right in time. The confusion between the original and the copies stems from external and exceptional circumstances attributable to an omission on the part of the service provider. The appellant maintains that it acted in good faith and diligently. All the documents submitted to the Registry were signed and lodged within the time-limits. The appellant also submits that the confusion between the original and the copies was the result of abnormal circumstances beyond its control and that unforeseeable circumstances are therefore made out in the form of the service provider’s confusion of the original and the copies and its delivery of an incomplete annex. The appellant used all possible means to remedy those problems.

46 OHIM submits that the concept of excusable error concerns only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party. The distinction between an original and a copy is of considerable importance. The appellant should have clearly distinguished the original from the copies, for example by having the original signed with a blue ink pen. Had the appellant acted more quickly, it would have been possible to put the application in order within the time-limit for instituting proceedings. In OHIM’s submission, the confusion between the original and the copies is attributable to the appellant.

Findings of the Court

49 The appellant contends that the confusion between the original and the copies of the application is attributable to the intervention of a third party, a company to which it entrusted the task of making the high number of copies required for the lodgment of the application initiating proceedings.

51 The fourth and fifth pleas are therefore unfounded.

The sixth plea, alleging breach of the principles of proportionality and the protection of legitimate expectations

Arguments of the parties

52 The appellant claims that, in declaring the action inadmissible even though seven copies of the application, all bearing the lawyer’s signature, had been received within the time-limits, the General Court infringed the principles of proportionality and the protection of legitimate expectations. Both the Instructions to the Registrar (Article 7) and the Practice Directions to Parties (point 57(b)) allow the application to be put in order so as to bear the lawyer’s original signature.

53 OHIM notes that the right to effective judicial protection is not affected by the strict application of procedural time-limits and other essential procedural requirements. Inadmissibility due to the late lodgement of the application is neither contrary to that right nor disproportionate. Point 57(b) of the Practice Directions to Parties is, by its very nature, not capable of giving rise to a legitimate expectation as to the regularisation of an application lacking an original signature and can by no means derogate from the clear requirement imposed by Article 43(6) of the Rules of Procedure of the General Court.

Findings of the Court

54 As the original of the application was not submitted within the prescribed time‑limit, the appellant’s action was inadmissible.

55 This conclusion is not affected by the appellant’s reliance on the principle of proportionality. Indeed, as already set out at paragraph 43 of the present judgment, the strict application of procedural rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice.

57 In the present case, it is sufficient to note that the appellant has not put forward, in support of its appeal, any matter justifying a conclusion that the General Court gave it precise assurances regarding its application’s compliance with procedural requirements.

58 Therefore, the sixth plea is unfounded.

59 It follows from all of the foregoing considerations that the appeal must be dismissed in its entirety as unfounded.

Costs

60 Under Article 69(2) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

61 As OHIM sought an order for costs against the appellant, and the latter has been unsuccessful, the appellant must be ordered to pay the costs.

On those grounds, the Court (Second Chamber) hereby:

1. Dismisses the appeal;

2. Orders Bell & Ross BV to pay the costs.

[Signatures]

* Language of the case: French.