ORDER OF THE GENERAL COURT (Seventh Chamber)
15 January 2024 (*)
(Action for annulment – EU trade mark – Time limit for bringing proceedings – Application for legal aid – Suspension of time limits – Computation of time limits – Out of time – Manifest inadmissibility)
In Case T‑638/22,
Diana-Adela Talpoș, residing in Oradea (Romania), represented by G. Popescu, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO),
defendant,
the other parties to the proceedings before the Board of Appeal of EUIPO being:
Manastirea Prislop, established in Hațeg (Romania),
Episcopia Ortodoxa Romana a Devei si Hunedoarei, established in Deva (Romania),
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk (Rapporteur), President, E. Buttigieg and B. Ricziová, Judges,
Registrar: V. Di Bucci,
makes the following
Order
1 By her application based on Article 263 TFEU, the applicant, Ms Diana-Adela Talpoș, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 6 July 2022 (Case R 2938/2019-2) (‘the contested decision’).
Procedure and form of order sought
2 On 12 October 2022, the applicant submitted an application for legal aid pursuant to Article 147 of the Rules of Procedure of the General Court. By order of 1 December 2022, the President of the General Court granted that application.
3 Since the applicant did not put forward the name of a lawyer, the President of the Court, by order of 15 June 2023, designated, in accordance with Article 148(5) and (6) of the Rules of Procedure, Ms Georgeta Popescu as the lawyer responsible for representing her.
4 By application lodged at the Registry of the General Court on 12 August 2023, the applicant brought the present action.
5 The applicant claims that the Court should:
– annul the contested decision;
– order EUIPO to pay the costs, including those incurred before the Board of Appeal.
Law
6 Article 126 of the Rules of Procedure provides that, where the action is manifestly inadmissible, the General Court may decide to give a decision by reasoned order without taking further steps in the proceedings.
7 In the present case, the Court considers that it has been sufficiently informed by the documents in the file and decides, pursuant to that article, to give judgment without taking further steps in the proceedings.
8 The sixth paragraph of Article 263 TFEU provides that proceedings for annulment are to be instituted within two months of the publication of the contested measure, or of its notification to the applicant, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. Under the provisions of Article 60 of the Rules of Procedure, that period is to be extended on account of distance by a single period of 10 days.
9 According to settled case-law, that time limit is a matter of public policy, since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and the Courts of the European Union must ascertain of their own motion whether it has been observed (see, to that effect, judgments of 23 January 1997, Coen, C‑246/95, EU:C:1997:33, paragraph 21, and of 18 September 1997, Mutual Aid Administration Services v Commission, T‑121/96 and T‑151/96, EU:T:1997:132, paragraphs 38 and 39).
10 In the first place, it follows from the combined provisions of Article 72(5) and Article 98(1) 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), that the decisions of the Boards of Appeal of EUIPO are automatically notified to the interested parties and that an appeal may be brought before the General Court within a period of two months from the date of notification of those decisions.
11 Pursuant to Article 98(3) of Regulation 2017/1001 and Article 57(2) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1), the notification of decisions of EUIPO may be carried out by electronic means and the Executive Director of EUIPO is to determine the details regarding electronic means, the manner in which those electronic means will be used, and the time limit for notification by electronic means.
12 According to Article 4(5) of Decision EX-20-9 of the Executive Director of EUIPO of 3 November 2020 relating to communication by electronic means, notification is deemed to have taken place on the fifth calendar day following the day on which EUIPO placed the document in question in the user’s inbox in the User Area platform.
13 In the present case, in response to a request for regularisation of the application, the applicant stated that the contested decision had been ‘notified’ to her on 3 August 2022. In this regard, she submitted documents from which it is apparent that that decision was actually placed on 3 August 2022 in the applicant’s inbox in the User Area platform. It follows that that decision must be deemed to have been notified to the applicant no later than 8 August 2022 and that, consequently, the time limit for requesting the annulment of that decision expired, in principle, no later than 18 October 2022.
14 In the second place, pursuant to Article 147(7) of the Rules of Procedure, the introduction of an application for legal aid, for the person who made it, suspends the time limit prescribed for the bringing of an action until the date of service of the order making a decision on that application or, where appropriate, of the separate order designating the lawyer instructed to represent the applicant.
15 That provision must be interpreted as meaning that the period for bringing proceedings begins to run again from the date on which the order designating the lawyer responsible for representing the applicant at issue is notified to that lawyer. That order includes a power of attorney and establishes the relationship between that lawyer and that applicant. It is therefore up to that lawyer, by virtue of the rules of professional conduct to which he or she is subject and which may incur liability towards his or her client, to ensure compliance with the time limit for bringing proceedings, the resumption of which was expressly indicated to him or her by the Court in the context of the service of that order (see, to that effect, judgment of 10 February 2021, XC v Commission, T‑488/18, not published, EU:T:2021:76, paragraph 125).
16 In the present case, the applicant submitted an application for legal aid on 12 October 2022, which had the effect of suspending the period for the action. At the time of the suspension of that period and, following the resumption of that period, the applicant still had, at best, a period of six days to bring her action.
17 The order designating the lawyer instructed to represent the applicant was served on that lawyer, by e-Curia, on 16 June 2023, the date on which the latter consulted, in e-Curia, the letter of service which was addressed to her. That letter expressly stated that the notification of that order to the lawyer put an end to the suspension of the time limit for bringing proceedings. Therefore, that suspension ended on 16 June 2023. Consequently, the time limit for bringing proceedings expired, at the latest, six days later, that is to say on 22 June 2023.
18 The present action was brought on 12 August 2023 only.
19 In those circumstances, the action must be considered to be out of time.
20 Furthermore, the applicant has neither pleaded nor proved the existence of unforeseeable circumstances or force majeure such as to allow a derogation from the time limit in question on the basis of the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, which applies to proceedings before the General Court under Article 53 of that statute.
21 It follows from all the foregoing considerations that the action must be dismissed as being manifestly inadmissible, without it being necessary for it to be served on EUIPO.
Costs
22 Since this order has been adopted before service of the application on EUIPO and before the latter could have incurred any costs, it is sufficient to order that the applicant must bear her own costs, in accordance with Article 133 of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. The action is dismissed.
2. Ms Diana-Adela Talpoș shall bear her own costs.
Luxembourg, 15 January 2024.
V. Di Bucci | | K. Kowalik-Bańczyk |