ORDER OF THE GENERAL COURT (Sixth Chamber)
18 September 2019 (*)
(Community design — Registered Community design representing pneumatic power tools — Invalidity proceedings –– Intervention by the other party to the proceedings before the Board of Appeal — Expiry of the time limit within which to intervene under Article 173 of the Rules of Procedure of the General Court — Refusal to grant leave to intervene under that provision — Application, in the alternative, for leave to intervene under Article 143 of the Rules of Procedure made within the time limit — Whether permissible)
In Case T‑748/18,
Glimarpol sp. z o.o., established in Bytom (Poland), represented by M. Kondrat, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by A. Folliard-Monguiral and H. O’Neill, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Metar sp. z o.o., established in Gliwice (Poland),
ACTION brought against the decision of the Third Board of Appeal of EUIPO of 4 October 2018 (Case R 1615/2017-3), relating to invalidity proceedings between Metar and Glimarpol,
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis, President, D. Spielmann (Rapporteur) and Z. Csehi, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 21 December 2018,
having regard to the response lodged at the Court Registry on 11 March 2019,
makes the following
Order
Facts and procedure
1 The applicant, Glimarpol sp. z o.o., is the proprietor of the Community design filed with the European Union Intellectual Property Office (EUIPO) and registered under number 2125435-0001, pursuant to Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), for products defined as ‘pneumatic power tools’.
2 On 16 May 2016, Metar sp. z o.o. filed, pursuant to Article 52 of Regulation No 6/2002, an application for a declaration of invalidity of the contested design, based on Article 25(1)(b) of Regulation No 6/2002.
3 Since the application for a declaration of invalidity was allowed by the Cancellation Division on 22 May 2017, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 55 to 60 of Regulation No 6/2002, against the decision of the Cancellation Division.
4 By decision of 4 October 2018, the Third Board of Appeal of EUIPO dismissed the appeal.
5 By application lodged at the Court Registry on 21 December 2018, the applicant brought the present action for annulment of the decision of the Board of Appeal.
6 In accordance with Article 178(3) of the Rules of Procedure of the General Court, the application was served on Metar by letter from the Registrar of the General Court of 16 January 2019.
7 In the present case, the period within which Metar was required to submit a response, referred to in Article 179 of the Rules of Procedure and extended on account of distance by a single period of 10 days, under Article 60 of the Rules of Procedure, expired on 2 April 2019.
8 On 4 April 2019, that is after the expiry of the abovementioned period, Metar sent to the Court Registry a letter by which it requested the Court, in the first place, to extend the time limit for submission of the response in accordance with the possibility provided for in Article 179 of the Rules of Procedure and, in the second place and in the alternative, to grant it leave to intervene in support of the form of order sought by EUIPO, as intervener, under Article 143 of the Rules of Procedure.
9 By order of 19 June 2019, Glimarpol v EUIPO — Metar (Pneumatic power tools) (T‑748/18, not published, EU:T:2019:464), the Court refused the request for an extension referred to in paragraph 8 above, finding that Metar had not established that there were exceptional circumstances constituting unforeseeable circumstances or force majeure, and held that Metar was therefore not granted leave to participate in the proceedings in the present case as intervener pursuant to Article 173(1) of the Rules of Procedure. The Court stated, in that order, that that decision was without prejudice to the response which was to be given to Metar’s request, in the alternative, by which it wished to participate in these proceedings in support of the form of order sought by EUIPO, as intervener, under Article 143 of the Rules of Procedure.
10 On 20 June 2019, Metar’s application, in the alternative, for leave to intervene under Article 143 of the Rules of Procedure was served on the main parties in accordance with Article 144(1) of the Rules of Procedure.
11 The applicant did not submit any comments on that application. EUIPO, for its part, indicated by a document lodged on 16 July 2019 that it had no objections to that intervention.
12 The President of the Sixth Chamber of the General Court referred to the Chamber the question whether, as it requests, Metar may be granted leave to participate in the proceedings before the Court, as intervener, under Articles 142 to 145 of the Rules of Procedure.
Law
13 Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 of that statute, any person which can establish an interest in the result of a case other than a case between Member States, between institutions of the European Union or between Member States and institutions of the European Union, may intervene in that case. An application to intervene is to be limited to supporting the form of order sought by one of the parties.
14 According to settled case-law, the concept of an ‘interest in the result of a case’, within the meaning of that provision, must be defined in the light of the subject matter of the case and be understood as meaning a direct, existing interest in the ruling on the form of order sought, and not as an interest in relation to the pleas in law or arguments put forward. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the judgment or order ending the proceedings (see, to that effect, orders of 9 October 2018, Poland v Commission, C‑181/18 P, not published, EU:C:2018:826, paragraph 5 and the case-law cited, and of 7 June 2019, Mellifera v Commission, C‑784/18 P, not published, EU:C:2019:479, paragraph 6 and the case-law cited).
15 In that regard, it is necessary to ascertain, in particular, whether the applicant for leave to intervene is directly affected by the contested measure and whether his interest in the result of the case is established. In principle, an interest in the result of the case can be regarded as sufficiently direct only in so far as that result is such as to change the legal position of the applicant for leave to intervene (see orders of 9 October 2018, Poland v Commission, C‑181/18 P, not published, EU:C:2018:826, paragraph 6 and the case-law cited, and of 7 June 2019, Mellifera v Commission, C‑784/18 P, not published, EU:C:2019:479, paragraph 7 and the case-law cited).
16 In the present case, it is clear that Metar, which was a party to the proceedings before EUIPO, and which was successful before the departments of EUIPO, has a direct, existing interest in the result of the case and that, therefore, its application to intervene in support of the form of order sought by EUIPO should be accepted.
17 It is the case that, as is recognised in the second paragraph of Article 53 of the Statute of the Court of Justice of the European Union, litigation in the field of intellectual property presents specific features which require derogation from certain provisions governing proceedings before the General Court. One such feature is the fact that such litigation involves, so far as opposition proceedings are concerned, disputes between private persons. To that end, specific rules on interveners, in particular, were adopted (see, to that effect, orders of 18 March 2016, Sociedad agraria de transformación n o 9982 Montecitrus v OHIM — Spanish Oranges (MOUNTAIN CITRUS SPAIN), T‑495/15, not published, EU:T:2016:179, paragraph 8 and the case-law cited, and of 7 December 2016, Claranet Europe v EUIPO — Claro (claranet), T‑129/16, not published, EU:T:2016:728, paragraph 8).
18 Thus, Article 173(3) of the Rules of Procedure confers, on the parties to the proceedings before the Board of Appeal other than the applicant, the same procedural rights as on the main parties. That provision thus derogates from the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union, according to which the claims in the application to intervene must be limited to supporting the form of order sought by one of the main parties. Interveners pursuant to Article 173 of the Rules of Procedure may not only support the form of order sought by a main party, but also apply for a form of order and put forward pleas in law independent of those of the main parties (see, to that effect, order of 5 March 2004, Boss v OHIM — Delta Biomichania Pagatou (BOSS), T‑94/02, EU:T:2004:68, paragraph 17).
19 However, the fact that a party to the proceedings before the Board of Appeal has lost the opportunity to exercise, or has waived the exercise of, strengthened procedural rights in accordance with the provisions of Article 173 of the Rules of Procedure does not mean that it may not be granted leave to intervene under the combined provisions of Article 40 of the Statute of the Court of Justice of the European Union and Articles 142 to 145 of the Rules of Procedure in so far as that party establishes an interest in the result of the case. It cannot be concluded that, in proceedings relating to intellectual property rights, being a party to the proceedings before EUIPO — and the concomitant possibility of benefiting from a procedural position equivalent to that of the main parties under Article 173 of the Rules of Procedure — excludes the opportunity to intervene in accordance with Article 40 of the Statute of the Court of Justice of the European Union and Articles 142 to 145 of the Rules of Procedure, if the party concerned has not been granted leave to intervene in accordance with Article 173 of the Rules of Procedure due to the expiry of the time limit referred to in Article 179. In that regard, it should be noted that the procedural rights which an intervener has under Articles 142 to 145 of the Rules of Procedure are much more limited than those provided for in Article 173(3) thereof. Since these are therefore two different intervention regimes, the application of Articles 142 to 145 of the Rules of Procedure to the other party to the proceedings before the Board of Appeal is compatible with the specific features of proceedings relating to intellectual property rights and does not constitute a circumvention of the time limit set out in Article 179 of the Rules of Procedure.
20 Therefore, the fact that Metar lost the opportunity to be an intervener in these proceedings under Article 173 of the Rules of Procedure does not preclude it from intervening on the basis of Articles 142 to 145, provided that the conditions set out to that end are met, as they are in the present case.
21 It follows from all of those considerations that, since Metar’s application to intervene was brought in accordance with Article 143 of the Rules of Procedure and since Metar has established its interest in the result of the case, the application must be granted, in accordance with the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court under the first paragraph of Article 53 thereof. The intervener’s rights shall be those referred to in Articles 142 to 145 of the Rules of Procedure.
Costs
22 Since this application to intervene is a procedural step, the costs are reserved.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. Metar sp. z o.o. is granted leave to intervene in Case T‑748/18 in support of the form of order sought by the European Union Intellectual Property Office (EUIPO).
2. The Registrar shall send all the procedural documents served on the main parties to Metar.
3. A time limit shall be set for Metar to submit a statement in intervention.
4. The costs are reserved.
Luxembourg, 18 September 2019.