IP case law Court of Justice

Order of 21 Sep 2012, C-69/12 (Noscira)



ORDER OF THE COURT (Sixth Chamber)

21 September 2012 (*)

(Appeal – Signed original of the application lodged out of time – Defect capable of being rectified – Excusable error – Appeal manifestly unfounded)

In Case C-69/12 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 February 2012,

Noscira SA, established in Madrid (Spain), represented by A. Sirimarco, abogado,

appellant,

the other parties to the proceedings being:

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

defendant at first instance,

Agouron Pharmaceuticals Inc., established in San Diego (United States),

intervener at first instance,

THE COURT (Sixth Chamber),

composed of U. Lõhmus, President of the Chamber, A. Arabadjiev and C.G. Fernlund (Rapporteur), Judges,

Advocate General: J. Mazák,

Registrar: A. Calot Escobar,

after hearing the Advocate General,

makes the following

Order

1        By its appeal, Noscira SA (‘Noscira’) seeks to have set aside the order of the General Court of the European Union of 28 November 2011 in Case T-307/11 Noscira v OHIM Agouron Pharmaceuticals (ZENTYLOR) (‘the order under appeal’), by which the General Court dismissed, as being manifestly inadmissible, Noscira’s action for annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 10 March 2011 (Case R 661/2010-2) relating to opposition proceedings between Agouron Pharmaceuticals Inc. and the appellant.

 Legal context

 The Rules of Procedure of the General Court

2        Article 25(1) of the Rules of Procedure of the General Court states:

‘The Registrar shall be responsible, under the authority of the President, for the acceptance, transmission and custody of documents and for effecting service as provided for by these Rules.’

3        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.      Without prejudice to the provisions of paragraphs 1 to 5, the date on which a copy of the signed original of a pleading, including the schedule of documents referred to in paragraph 4, 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 10 days thereafter. Article 102(2) shall not be applicable to this period of 10 days.’

4        Article 44 of the Rules of Procedure of the General Court provides:

‘...

3.      The lawyer acting for the defendant must lodge at the Registry a certificate that he is authorised to practise before a court of a Member State or of another State party to the [Agreement of 2 May 1992 on the European Economic Area (OJ 1994 L 1, p. 3)].

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 of the European Union].

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.

...

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 abovementioned 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.’

 The Instructions to the Registrar

5        Article 7 of the Instructions to the Registrar of the Court of First Instance of the European Communities (now the General Court of the European Union) 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 [OJ 2007 L 232, p. 7] 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.

...’

 The Practice Directions to parties

6        Point 57 of the Practice Directions to parties provides:

‘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 [to parties]);

...’

 The facts of the dispute and the order under appeal

7        The facts giving rise to the dispute were set out in paragraphs 1 to 4 of the order under appeal:

‘1      By decision of 10 March 2011 … the Second Board of Appeal of OHIM annulled the Opposition Division’s decision rejecting the opposition filed by the proprietor of the Community word mark XENTRIOR. The applicant, Noscira … was notified of the [decision of 10 March 2011] on 31 March 2011.

2      By application received by fax and by email at the Registry of the General Court on 10 June 2011, the applicant brought the present action.

3      On 15 June 2011, a paper copy of the application, a covering letter and six uncertified copies of the application were received at the Registry of the General Court. Both the application and the covering letter were scanned copies of the originals, and thus contained the scanned signatures of the applicant’s lawyer and not his handwritten signatures. On 18 July 2011, the Registry of the General Court questioned the applicant in that regard.

4      By letter dated 31 July 2011, received at the Registry of the General Court by fax and by email on 2 August 2011, the applicant informed the Registry that the original version of the application had accidentally been placed in its file and that the scanned copy had been sent to the Registry by mistake. Page 18 of the original application bearing the handwritten signature of the applicant’s lawyer was attached as an annex to the original of that letter, received at the Court Registry on 3 August 2011.’

8        At paragraphs 16 to 18 of the order under appeal, the General Court held as follows:

‘16      … it must be borne in mind that the failure to submit the original application, signed by a duly authorised lawyer, is not among the formal irregularities that are capable of being rectified under the second paragraph of Article 21 of the Statute of the Court of Justice ... and Article 44(6) of the Rules of Procedure of the General Court. That requirement must be regarded as an essential procedural rule and be applied strictly, with the result that failure to comply with it leads to the inadmissibility of the action once the periods for taking steps in the proceedings have expired (see, to that effect, Case C-426/10 P Bell & Ross v OHIM [2011] ECR I-0000, paragraph 42, and Case T-223/06 P Parliament v Eistrup [2007] ECR II-1581, paragraphs 48 and 51).

17      Moreover, the lodgment, on 3 August 2011, of the page of the original application bearing the handwritten signature of the applicant’s lawyer cannot be regarded as having rectified the failure to lodge the signed original of that application within the 10-day period following receipt, by fax and by email, of the copy of that application at the Registry of the General Court ... That lodgment, in which, moreover, the document lodged was not the full text of the original application, took place after the period for bringing the action had expired.

18      In addition, the applicant has not proved – or even invoked – either an excusable mistake or the existence of unforeseeable circumstances or force majeure such as would permit the Court to derogate from the time-limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice, which is applicable to proceedings before the General Court pursuant to Article 53 of that Statute ...’

9        The General Court consequently dismissed the action as being manifestly inadmissible.

 The appeal

10      Under Article 119 of its Rules of Procedure, where the appeal is clearly inadmissible or clearly unfounded, the Court of Justice may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal by reasoned order.

11      It is appropriate to apply that provision to the present case.

12      In its appeal, Noscira puts forward, in essence, five grounds of appeal.

 The first ground of appeal

13      Noscira complains that the Registrar of the General Court waited almost one month after the expiry of the period for lodging the paper application before requesting it to explain the character of the original of the signature on the documents received at the Registry on 15 June 2011. The appellant claims that, if the Registrar had acted more diligently in bringing to its attention the absence of the original, it could have had sufficient time to lodge all the necessary documents, namely the original application along with seven copies, before the expiry of the additional 10-day period.

14      It must be pointed out that, contrary what is argued by Noscira, the Registrar of the General Court is not under any obligation to bring promptly to the attention of lawyers the existence of procedural defects affecting the procedural documents, prepared on behalf of their clients, so as to allow them to rectify them, as necessary, before the expiry of the period for bringing an action. Under Article 25(1) of the Rules of Procedure of the General Court, the Registrar of that Court is responsible for the acceptance, transmission and custody of documents and for effecting service as provided for by those rules.

15      By contrast, in accordance with the principle of compulsory representation by a lawyer, as laid down in the third paragraph of Article 19 of the Statute of the Court of Justice, applicable to proceedings before the General Court under Article 53 of that Statute, for all parties, apart from the Member States and institutions referred to in the first and second paragraphs of Article 19, the responsibility for preparing, monitoring and checking procedural documents to be lodged at the Registry rests with the lawyer of the party concerned (Bell & Ross v OHIM, paragraph 50).

16      Consequently, the appellant cannot invoke a lack of diligence on the part of the Registrar in order to offset a formal irregularity in the procedural documents prepared by its lawyer.

17      The first ground of appeal must therefore be rejected as being manifestly unfounded.

 The second ground of appeal

18      In its second ground of appeal, Noscira claims that the General Court, by refusing to regularise the application, infringed Article 7(1) of the Instructions to the Registrar as well as point 57(b) of the Practice Directions to parties. This latter provision, it submits, expressly provides for the possibility of granting a period of time to put in order the ‘original signature of the lawyer or agent at the end of the application’. The appellant regrets that, in Bell & Ross v OHIM, the Court merely stated that the lack of an original signature of the lawyer was not included on the list of defects capable of rectification contemplated in Article 44(6) of the Rules of Procedure of the General Court, without taking a view as to whether that list was exhaustive in nature or even considering the interpretation of point 57(b) of the Practice Directions to parties.

19      It must be noted that there is no dispute that the signed original of the application did not reach the Registry of the General Court until after the period for bringing an action had expired.

20      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.

21      Under Article 43(6) of those 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 that Registry no later than 10 days after receipt of that fax.

22      The Court has already ruled, at paragraph 42 of Bell & Ross v OHIM, that the failure to submit the signed original of the application is not one of the defects that is capable of being regularised under Article 44(6) of the Rules of Procedure of the General Court. It should be noted that this provision explicitly limits the possibility of regularisation to three types of procedural measures, namely the production by an applicant’s lawyer of a certificate that he is authorised to practise before a court of a Member State or of another State party to the Agreement on the European Economic Area, the act annulment of which is sought, and, if the applicant is a legal person governed by private law, the proof of its existence in law and proof that the validity of the authority granted to its lawyer has been properly conferred.

23      Thus, an application which is not signed by a lawyer is vitiated by a defect which is such as to result in the inadmissibility of the action on the expiry of the relevant period, and cannot be the subject of regularisation.

24      Pursuant to the principle of the hierarchy of norms, neither point 57(b) of the Practice Directions to parties nor Article 7(1) of the Instructions to the Registrar can add further possibilities of regularisation which have not been provided for by the Rules of Procedure of the General Court (see, by analogy, Joined Cases C-393/07 and C-9/08 Italy and Donnici v Parliament [2009] ECR I-3679, paragraph 47).

25      The second ground of appeal is therefore manifestly unfounded.

 The third ground of appeal

26      By refusing to allow it to regularise its application, notwithstanding the provisions of point 57(b) of the Practice Directions to parties, the General Court has, in Noscira’s view, failed to observe the principle of the protection of legitimate expectations. Noscira takes the view that it was entitled to expect that the General Court would comply with its own practice directions. Additionally, Noscira claims that it was at the express suggestion of the General Court Registry staff that it limited itself to sending the original of the page of the application bearing the lawyer’s handwritten signature. In the appellant’s view, that communication constituted a precise assurance allowing it legitimately to expect that the application would be regularised.

27      It should be recalled that the Court has held repeatedly that the right to rely on the principle of the protection of legitimate expectations extends to any person with regard to whom an institution of the European Union has given rise to justified hopes. A person may not plead infringement of that principle unless he has been given precise assurances by the administration (judgment of 24 November 2005 in Case C-506/03 Germany v Commission, paragraph 58, and Bell & Ross v OHIM, paragraph 56).

28      In the present case, Noscira has not adduced, in support of its appeal, any evidence from which it can be concluded that the General Court gave it precise assurances that its application would be regularised. The sole document in the file likely to contain proof of such an assurance is the letter from the Registrar of the General Court of 18 July 2011 inviting the appellant to explain why there was no original handwritten signature on the application. That letter clearly does not contain any precise assurance that the application would be regularised.

29      Therefore, the third ground of appeal is manifestly unfounded.

 The fourth ground of appeal

30      Noscira claims that the order under appeal disproportionately undermines its fundamental right to an effective remedy, regard being had to the fact that there was no doubt as to the authenticity of the documents submitted to the Registry of the General Court. Referring to the Opinion of Advocate General Sharpston in Bell & Ross v OHIM, the appellant expresses the view that, by ruling out any possibility of regularisation, the solution adopted by the General Court unduly favoured the interests of the then defendant to the detriment of the present appellant’s fundamental right of access to justice.

31      It should be pointed out that, as the original application was not submitted within the prescribed period, the appellant’s action was inadmissible.

32      In its fourth ground of appeal, alleging infringement of the principle of proportionality, Noscira challenges the strict application of the Rules of Procedure, in particular the rule requiring that the signed original of the application be lodged within the prescribed time-limits.

33      However, the General Court acted correctly in observing, at paragraph 9 of the order under appeal, that the strict application of the procedural rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice.

34      So far as concerns the invocation of the fundamental right to effective judicial protection, it must be stated that the Court has already held on numerous occasions that this right is in no way undermined by the strict application of the European Union’s rules on procedural time-limits (orders in Case C-406/01 Germany v Parliament and Council [2002] ECR I-4561, paragraph 20, and in Case C-73/10 P Internationale Fruchtimport Gesellschaft Weichert v Commission [2010] ECR I-11535, paragraph 49).

35      It is, admittedly, true that the conditions governing the submission of applications as well as the time-limits for bringing an action restrict the right of judicial access. However, those limitations clearly do not constitute an impairment to the very essence of that right, a fortiori as the rules in question are clear and do not pose any particular difficulty of interpretation.

36      The fourth ground of appeal is therefore manifestly unfounded.

 The fifth ground of appeal

37      Noscira pleads the existence of an excusable error or of unforeseeable circumstances. Its lawyer, it argues, acted with the diligence required and the copies provided to the Registry were of such a quality that it would have been impossible to the naked eye to distinguish them from an original, a fact which the Registrar of the General Court ought to have noted.

38      It follows from the case-law that 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 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 (Bell & Ross v OHIM, paragraph 47).

39      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 (Bell & Ross v OHIM, paragraph 48).

40      It should be stated that the responsibility for preparing, monitoring and checking procedural documents to be lodged at the Registry rests with the lawyer of the party concerned. The fact that the reproduction methods used are of such quality as to be capable of causing confusion between the original and the copies cannot be accepted as an exceptional circumstance or abnormal event outside the control of the appellant such as to allow it to plead excusable error or unforeseeable circumstances.

41      The fifth ground of appeal is therefore manifestly unfounded.

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

 Costs

43      Under Article 69(1) of the Rules of Procedure of the Court of Justice, which applies to the procedure on appeal by virtue of Article 118 thereof, a decision as to costs is to be given in the order which closes the proceedings.

44      As the present order has been adopted prior to notification of the appeal to the defendant at first instance and, therefore, before the latter could have incurred costs, it is sufficient to decide that the appellant must bear its own costs.

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

1.      The appeal is dismissed.

2.      Noscira SA shall bear its own costs.

[Signatures]

* Language of the case: English.



Disclaimer