IP case law Court of Justice

Order of 19 Oct 2016, C-313/16 (M)



ORDER OF THE COURT (Eighth Chamber)

19 October 2016 (*)

(Appeal — Article 181 of the Rules of Procedure — Signed original of the application — Lodgement out of time — Handwritten signature — Defect capable of being rectified — Appeal manifestly unfounded)

In Case C-313/16 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 27 May 2016,

Médis — Companhia portuguesa de Seguros de Saúde SA, established in Porto Salvo (Portugal), represented by M. Martinho do Rosário, advogada,

applicant,

the other party to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

THE COURT (Eighth Chamber),

composed of M. Vilaras, President of the Chamber, M. Safjan and D. Šváby (Rapporteur), Judges,

Advocate General: M. Wathelet,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court,

makes the following

Order

1        By its appeal, Médis — Companhia portuguesa de Seguros de Saúde SA (‘Médis’) seeks the setting aside of the order of 15 March 2016, Médis v OHIM — Medis (Médis) (T-774/15, not published, EU:T:2016:175) (‘the order under appeal’), by which the General Court dismissed as manifestly inadmissible the action brought against the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 September 2015 (Case R 1613/2014-1), relating to opposition proceedings between Medis ehf. and Médis. Médis also claims that the General Court should be ordered to pay the costs.

2        In support of its appeal, the appellant puts forward a single ground of appeal alleging infringement, first, of Article 51(4), Article 78(6) and Article 177(7) of the Rules of Procedure of the General Court and, second, of paragraphs 105 and 111 of the Practice Rules for the Implementation of those Rules, as well as point (f) of Annex 2 thereto. That ground of appeal is divided, in essence, into two parts. By the first part of that ground of appeal, the appellant submits that the General Court infringed the provisions referred to above by failing to inform it, prior to the adoption of the order under appeal, that its lawyer’s signature, as it appeared in the application initiating proceedings at first instance, was irregular. By the second part of that ground of appeal, the appellant submits that the General Court infringed those provisions by not fixing a reasonable time limit for it to put its application in order.

 The appeal

3        Pursuant to Article 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

4        On 20 September 2016, the Advocate General took the following position:

‘I propose that the Court should dismiss the appeal in the present case as manifestly unfounded and order [Médis] to pay the costs, in accordance with Article 137 of the Rules of Procedure [of the Court], for the following reasons:

(1)      By the order under appeal, the General Court dismissed the appellant’s action as manifestly inadmissible, as the paper version of the application initiating proceedings which was received at the Court Registry within the 10-day time limit laid down by Article 73(3) of the Rules of Procedure of the General Court did not include its lawyer’s handwritten signature, but only that lawyer’s scanned signature and, consequently, did not satisfy the requirements of Article 73(1) of the Rules of Procedure of the General Court.

(2)      In support of its appeal, the appellant puts forward a single ground of appeal, divided into two parts.

(3)      By the first part of its single ground of appeal, the appellant argues that the Court Registry infringed paragraphs 105 and 111 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court and point (f) of Annex 2 thereto, as well as Articles 177(7), 78(6) and 51(4) of the Rules of Procedure of the General Court, by failing to notify it of the irregularity of its lawyer’s signature before adopting a decision of inadmissibility.

(4)      By the second part of its single ground of appeal, the appellant accuses the Court Registry of having infringed those provisions by not fixing a reasonable time limit for the appellant to put its application in order.

(5)      The two parts of the single ground of appeal, which should be considered together, must be rejected as manifestly unfounded.

(6)      The Court has already ruled, in paragraph 22 of the order of 6 October 2015, Marpefa v OHIM (C-181/15 P, not published, EU:C:2015:678), that the obligation, imposed by Article 73(1) of the Rules of Procedure of the General Court, “that the original version of any procedural document must bear a handwritten signature, that is, a signature added by hand by the author of the procedural document concerned, is intended, in the interests of legal certainty, to guarantee the authenticity of that procedural document and to exclude the risk that it is not in fact the work of the person authorised for that purpose”.

(7)      In addition, the Court held, in paragraph 42 of the judgment of 22 September 2011, Bell & Ross v OHIM (C-426/10 P, EU:C:2011:612), and in paragraphs 22 and 23 of the order of 21 September 2012, Noscira v OHIM (C-69/12 P, not published, EU:C:2012:589), that a failure to submit the signed original of the application is not one of the defects capable of being rectified under Article 177(7) of the Rules of Procedure of the General Court. Thus, an application which is not signed by a lawyer is affected by a defect which is such as to entail the inadmissibility of the action upon the expiry of the procedural time limits, and cannot be put in order.

(8)      It must be pointed out that neither Article 78(6) nor Article 51(4) of the Rules of Procedure of the General Court concern the putting in order of an application not signed by a lawyer.

(9)      Pursuant to the principle of the hierarchy of norms, neither paragraphs 105 and 111 of the Practice Rules for the Implementation of the Rules of Procedure of the General Court nor point (f) of Annex 2 thereto can add further possibilities of regularisation which have not been provided for by the Rules of Procedure of the General Court (see, by analogy, order of 21 September 2012, Noscira v OHIM, C-69/12 P, not published, EU:C:2012:589, paragraph 24).

(10)      Consequently, neither Articles 177(7), 78(6) and 51(4) of the Rules of Procedure of the General Court nor paragraphs 105 and 111 of the Practice Rules for the Implementation of those Rules and point (f) of Annex 2 thereto impose an obligation for the Court Registry to notify an applicant of the absence of its lawyer’s handwritten signature from the application and to fix a reasonable time limit for that applicant to put its application in order.’

5        For the same reasons as those given by the Advocate General, the appeal must be dismissed as manifestly unfounded.

 Costs

6        Under Article 137 of the Rules of Procedure of the Court, applicable to appeal proceedings by virtue of Article 184(1) of those Rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order was adopted before the appeal was served on the respondent and therefore before the latter could have incurred costs, Médis must be ordered to bear its own costs.

On those grounds, the Court (Eighth Chamber) hereby orders:

1.      The appeal is dismissed;

2.      Médis — Companhia portuguesa de Seguros de Saúde SA is to bear its own costs.

[Signatures]

* Language of the case: English.



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