Case T-53/10

Peter Reisenthel

v

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

(Community design – Invalidity proceedings – Rejection of the application for a declaration of invalidity by the Invalidity Division – Notification of the Invalidity Division’s decision by fax – Appeal before the Board of Appeal – Written statement setting out the grounds of appeal – Period for submission – Admissibility of the appeal – Article 57 of Regulation (EC) No 6/2002 – Correction of a decision – Article 39 of Regulation (EC) No 2245/2002 – General principle of law authorising the withdrawal of an unlawful decision)

Summary of the Judgment

1.      Community trade mark – Procedural provisions – Decisions of the Office – Rectification – Manifest error – Concept – Breach of the rights of the defence – Exception

(Commission Regulation No 2245/2002, Art. 39)

2.      Acts of the institutions – Withdrawal – Unlawful acts – Conditions – Compliance with reasonable time-limits and with the principle of protection of legitimate expectations

3.      Acts of the institutions – Choice of legal basis – Error – Annulment of the act – Conditions

1.      Under Article 39 of Regulation No 2245/2002, implementing Regulation No 6/2002 on Community designs, in decisions of the Office for Harmonisation in the Internal Market (Trade Marks and Designs), only linguistic errors, errors of transcription and obvious mistakes may be corrected. They are to be corrected by the department which took the decision, acting of its own motion or at the request of an interested party.

In view of the importance of the binding nature of the operative part of a final decision made by a competent authority and following the principle of legal certainty, the rule enabling, in exceptional circumstances, subsequent corrections to be made to that decision is to be interpreted strictly. Therefore, the concept of ‘obvious mistakes’ is limited to formal mistakes whose incorrectness is clear from the body of the decision itself and which do not affect the scope and substance of that decision as characterised by its operative part and its grounds. On the other hand, the concept of ‘obvious mistakes’ cannot cover mistakes liable to vitiate the substance of the contested decision.

A breach of the rights of the defence resulting from the fact that a decision has been adopted before the end of the period granted to the applicant for submitting his observations is not an obvious mistake within the meaning of Article 39 of Regulation No 2245/2002. That breach is a mistake affecting the procedure that led to the adoption of that decision and, therefore, liable to vitiate the substance of that decision.

(see paras 35, 37)

2.      The retrospective withdrawal of an unlawful administrative act which has created individual rights is permissible, provided that the institution which adopted the act complies with the conditions relating to reasonable time-limits and the legitimate expectations of beneficiaries of the act who have been entitled to rely on its lawfulness.

(see para. 40)

3.      Notwithstanding the existence of another legal basis, an error in choosing the legal basis will lead to the annulment of the act concerned when that error may affect the content of that act, inter alia by rendering unlawful the procedure applicable to its adoption.

(see para. 41)