Order of 3 Mar 2020, C-902/19 (Esim Chemicals v EUIPO), ECLI:EU:C:2020:145.

ORDER OF THE COURT (Chamber determining whether appeals may proceed)

3 March 2020 (*)

(Appeal — EU trade mark — Determination as to whether appeals should be allowed to proceed — Article 170b of the Rules of Procedure of the Court of Justice — Request not demonstrating the significance of an issue of law with respect to the unity, consistency or development of EU law — Appeal not allowed to proceed)

In Case C-902/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 December 2019,

Esim Chemicals GmbH, established in Linz (Austria), represented by I. Rungg and I. Innerhofer, Rechtsanwälte,

appellant,

the other party to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

THE COURT (Chamber determining whether appeals may proceed),

composed of R. Silva de Lapuerta, Vice-President of the Court, S. Rodin and K. Jürimäe (Rapporteur), Judges,

Registrar: A. Calot Escobar,

having regard to the proposal from the Judge-Rapporteur and after hearing the Advocate General, M. Szpunar,

makes the following

Order

1        By its appeal, Esim Chemicals GmbH asks the Court to set aside the order of the General Court of the European Union of 9 October 2019, Esim Chemicals v EUIPO — Sigma-Tau Industrie Farmaceutiche Riunite (ESIM Chemicals) (T-713/18, not published, EU:T:2019:744), whereby the General Court dismissed its action seeking the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 2 October 2018 (Case R 1267/2018-5), in relation to opposition proceedings between Sigma-Tau Industrie Farmaceutiche Riunite and Esim Chemicals.

 Whether the appeal should be allowed to proceed

2        Pursuant to the first paragraph of Article 58a of the Statute of the Court of Justice of the European Union, an appeal brought against a decision of the General Court concerning a decision of an independent Board of Appeal of EUIPO is not to proceed unless the Court first decides that it should be allowed to do so.

3        In accordance with the third paragraph of Article 58a of that Statute, an appeal is to be allowed to proceed, wholly or in part, in accordance with the detailed rules set out in the Court’s Rules of Procedure, where it raises an issue that is significant with respect to the unity, consistency or development of EU law.

4        Under Article 170a(1) of the Rules of Procedure, in the situations referred to in the first paragraph of Article 58a of the Statute of the Court of Justice of the European Union, the appellant is to annex to the appeal a request that the appeal be allowed to proceed, setting out the issue raised by the appeal that is significant with respect to the unity, consistency or development of European Union law and containing all the information necessary to enable the Court to rule on that request.

5        In accordance with Article 170b(3) of those rules, the Court is to rule on the request that the appeal be allowed to proceed in the form of a reasoned order.

6        In support of its application for admission of the appeal, the appellant argues that the appeal raises important issues for the unity, consistency or development of EU law in so far as the General Court has breached the appellant’s right to have its affairs handled impartially and in a fair manner, in accordance with Article 41(1) and Article 47 of the Charter of Fundamental Rights of the European Union, and the principle of proportionality as laid down in Article 5(4) of the EU Treaty and Article 107 of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).

7        In particular, the appellant argues that the General Court erred in interpreting and applying the case-law on exceptional circumstances which justify the late submission of an action. In fact, the General Court erred in its assessment of the allegedly misleading notifications from EUIPO and the exceptional circumstances of the case at hand, namely the lack of the workforce in its billing department. In this regard, the applicant claims that it paid the appeal fee and surcharge to EUIPO within the prescribed time limit, despite the fact that it received several misleading notifications from EUIPO. It is due to an interpretation of the procedural rules which is too strict and formalistic that the General Court failed to take all of those elements into account.

8        First, it must be observed that it is for the appellant to demonstrate that the issues raised by its appeal are significant with respect to the unity, consistency or development of EU law (order of 16 September 2019, Kiku v CPVO, C-444/19 P, not published, EU:C:2019:746, paragraph 11).

9        Further, as is apparent from the third paragraph of Article 58a of the Statute of the Court of Justice of the European Union, read together with Article 170a(1) Article 170b(4) of the Rules of Procedure of the Court of Justice, the request that an appeal be allowed to proceed must contain all the information necessary to enable the Court to give a ruling on whether the appeal should be allowed to proceed and to specify, where the appeal is allowed to proceed in part, the pleas in law or parts of the appeal to which the response must relate. Given that the objective of the mechanism provided for in Article 58a of that Statute whereby the Court determines whether an appeal should be allowed to proceed is to restrict review by the Court to issues that are significant with respect to the unity, consistency and development of EU law, only grounds of appeal that raise such issues and that are established by the appellant are to be examined by the Court in an appeal (see order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 14 and the case-law cited).

10      Accordingly, a request that an appeal be allowed to proceed must, in any event, set out clearly and in detail the grounds on which the appeal is based, identify with equal clarity and detail the issue of law raised by each ground of appeal, specify whether that issue is significant with respect to the unity, consistency or development of EU law and set out the specific reasons why that issue is significant according to that criterion. As regards, in particular, the grounds of appeal, the request that an appeal be allowed to proceed must specify the provision of EU law or the case-law that has been infringed by the judgment under appeal, explain succinctly the nature of the error of law allegedly committed by the General Court, and indicate to what extent that error had an effect on the outcome of the judgment under appeal. Where the error of law relied upon results from an infringement of the case-law, the request that the appeal be allowed to proceed must explain, in a succinct but clear and precise manner, first, where the alleged contradiction lies, by identifying the paragraphs of the judgment or order under appeal which the appellant is calling into question as well as those of the ruling of the Court of Justice or the General Court alleged to have been infringed and, second, the concrete reasons why such a contradiction raises an issue that is significant with respect to the unity, consistency or development of EU law (order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 15 and the case-law cited).

11      A request that an appeal be allowed to proceed which does not contain the information mentioned in the preceding paragraph of the present order cannot, from the outset, be capable of demonstrating that the appeal raises an issue that is significant with respect to the unity, consistency or development of EU law that justifies the appeal being allowed to proceed (order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 16 and the case-law cited).

12      In that regard, as to the appellant’s arguments that the General Court has incorrectly interpreted and applied the relevant case-law, it must be noted that, in accordance with the burden of proof which lies with the appellant requesting that the appeal be allowed to proceed, such arguments are not, in themselves, sufficient to establish that that appeal raises an issue that is significant with respect to the unity, consistency or development of EU law, the appellant having to comply to that end with all the requirements set out in paragraph 10 of the present order (see, to that effect, order of 24 October 2019, Porsche v EUIPO, C-613/19 P, EU:C:2019:905, paragraph 17). In the present case, the appellant, which merely alleges an incorrect interpretation and an erroneous application of the case-law, has failed to comply with all those requirements.

13      With regard to the appellant’s arguments alleging that the General Court erred in the assessment of EUIPO’s notifications and of the exceptional circumstances of the case at issue, it must be noted that those arguments tend, in essence, to challenge factual assessments made by the General Court. Such arguments cannot be regarded as establishing that the appeal raises an important issue for the unity, consistency or development of EU law (see, to that effect, order of 10 October 2019, KID-Systeme v EUIPO, C-577/19 P, not published, EU:C:2019:854, paragraph 20).

14      In those circumstances, it must be concluded that the arguments put forward by the appellant in support of its request that its appeal be allowed to proceed are not capable of establishing that that appeal raises issues that are significant with respect to the unity, consistency or development of EU law.

15      In the light of all the foregoing considerations, the request that the appeal be allowed to proceed must be dismissed.

 Costs

16      Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings.

17      Since the present order was adopted before the appeal was served on the other parties to the proceedings and, therefore, before they could have incurred costs, it is appropriate to decide that the appellant is to bear its own costs.

On those grounds, the Court (Chamber determining whether appeals may proceed) hereby orders:

1.      The appeal is not allowed to proceed.

2.      Esim Chemicals GmbH shall bear its own costs.

Luxembourg, 3 March 2020.

A. Calot Escobar

R. Silva de Lapuerta

Registrar

President of the Chamber determining

whether appeals may proceed

*      Language of the case: English.