Bell and Ross sought to have set aside the order of the General Court of the European Union of 18 June 2010 in Case T‑51/10 Bell and 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.
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.
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.
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.
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.’
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.
The Registry of the General Court entered the application in the register on 5 February 2010, that is, after the expiry of the 10-day period which ran from the transmission of the application by fax, in accordance with Article 43(6) of the Rules of Procedure of the General Court.
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.
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. 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
In support of its appeal, the appellant put forward six pleas in law.
By its first plea, the appellant stated that the Advocate General was not heard, in breach of Article 111 of the Rules of Procedure of the General Court.
The Court however held that, although Article 111 of the Rules of Procedure of the General Court, on which the order under appeal was based, required the Advocate General to be heard, Article 2(2) of those rules of procedure stated 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.
But its second plea, the appellant complained that the General Court wrongly interpreted Article 43 of its Rules of Procedure in considering that the application was lodged out of time. The appellant argued that the relevant issue was that of identifying the original application. Article 43 did not specify detailed rules for the signing of the application (colour, type of pen, etc). It argued that the damp cloth test to which the General Court had recourse was questionable, as some inks did 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.
The Court however held that the order under appeal did 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 might be evidenced.
The Court furthermore argued it was 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.
By its third plea, the appellant submitted 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.
The Court pointed out that Article 43(1) of the Rules of Procedure of the General Court requiredthe lodgment of the original of every pleading, signed by the party’s lawyer, whereas, under Article 43(6) of the Rules of Procedure, the date on which a copy of the signed original of a pleading was received at the Registry of the General Court by fax was 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 was lodged at the Registry no later than 10 days after receipt of that fax.
The Court held that the failure to submit the signed original of the application was not one of the defects capable of being regularised under Article 44(6) of the Rules of Procedure of the General Court. Thus, an application which was not signed by a lawyer was affected by a defect which was such as to entail the inadmissibility of the action upon the expiry of the procedural time-limits, and could not be put in order (see order in Case C‑163/07 P Diy-Mar Insaat Sanayi ve Ticaret and Akar v Commission [2007]).
By its fourth and fifth pleas, the appellant pleaded an excusable error. It argued 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. It argued that the confusion between the original and the copies stemmed from external and exceptional circumstances attributable to an omission on the part of the service provider.
The Court however held that the responsibility for preparing, monitoring and checking procedural documents to be lodged at the Registry rested with the lawyer of the party concerned. Accordingly, the fact that the confusion between the original and the copies of the application was attributable to the intervention of a third party, a company instructed by the appellant to make copies, and the other circumstances put forward by the appellant could according to the Court not be considered exceptional circumstances or abnormal events unconnected to the appellant entitling it to rely on excusable error or unforeseeable circumstances.
By its sixth plea, the appellant alleged 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.
The Court pointed out that, as the original of the application was not submitted within the prescribed time‑limit, the appellant’s action was inadmissible. That conclusion was not affected by the appellant’s reliance on the principle of proportionality.
With regard to the alleged breach of the principle of the protection of legitimate expectations, the Court recalled that the Court had repeatedly held that the right to rely on that principle extended to any person with regard to whom an institution of the European Union had given rise to justified hopes.
The Court however held that the appellant had 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.
The Court hence dismissed the appeal
