ORDER OF THE GENERAL COURT (Fifth Chamber)
12 July 2011(*)
(Community trade mark – Action brought against a decision – Period allowed for bringing proceedings – Delay – Manifest inadmissibility)
In Case T‑241/11,
Citi Travel, SL, established in Malaga (Spain), represented by E. Manresa Medina, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM),
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
Citibank, NA, established in New York (United States),
ACTION brought against the decision of the Second Board of Appeal of OHIM of 31 January 2011 (Joined Cases R 472/2010‑2 and R 473/2010‑2) relating to opposition proceedings between Citibank, NA, and Citi Travel, SL,
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas, President, V. Vadapalas and K. O’Higgins (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
1 On 21 February 2011, the applicant, Citi Travel, SL, was notified of the decision of the Second Board of Appeal of OHIM of 31 January 2011 (Joined Cases R 472/2010‑2 and R 473/2010‑2) relating to opposition proceedings between Citibank, NA, and Citi Travel (‘the contested decision’).
2 By application received by fax at the Registry of the Court on 21 April 2011, the applicant brought the present action.
3 The original of the application was received at the Registry of the Court on 5 May 2011.
4 By letter from the Registrar of the Court of 31 May 2011, the applicant was informed that the original of the application had not been lodged within the period of 10 days laid down in Article 43(6) of the Rules of Procedure of the Court, and that therefore the date on which that application had been received at the Registry by fax could not be taken into account for the purposes of compliance with the time-limits for taking steps in proceedings. The applicant was requested to explain why the original of the application had been lodged out of time.
5 By letter of 15 June 2011, the applicant claimed that the abovementioned period of 10 days expired on 6 May 2011. It stated in that connection that that period ended on 2 May 2011, since 1 May 2011 was an official holiday, but that it was necessary to extend that period by four days, since 22, 23, 24 and 25 April 2011 were public holidays in Barcelona (Spain).
Form of order sought by the applicant
6 The applicant claims that the Court should:
– annul the contested decision;
– order OHIM to pay the costs.
Law
7 Under Article 111 of the Rules of Procedure, where the action is manifestly inadmissible, the Court may, by reasoned order and without taking further steps in the proceedings, give a decision on the action.
8 In the present case, the Court considers that it has sufficient information from the documents in the file and decides, pursuant to that article, to give a decision without taking further steps in the proceedings.
9 Under Article 65(5) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), actions against decisions of the Boards of Appeal of OHIM must be brought within two months of the date of notification of the decision in question. Under Article 102(2) of the Rules of Procedure, the prescribed time-limits are to be extended on account of distance by a single period of 10 days.
10 It is settled case-law that that time-limit for bringing an action 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 that time-limit has been observed (see, by analogy, Case C‑246/95 Coen [1997] ECR I‑403, paragraph 21, and Joined Cases T‑121/96 and T‑151/96 Mutual Aid Administration Services v Commission [1997] ECR II‑1355, paragraphs 38 and 39).
11 In the present case, as stated in paragraph 1 above, the contested decision was notified to the applicant on 21 February 2011.
12 It follows from the rules for calculating the prescribed time-limits laid down in Article 101(1)(a) and (b) and in Article 102(2) of the Rules of Procedure that the time-limit for bringing an action, including the extension on account of distance, expired on 1 May 2011. Since that day was a Sunday (in addition to being an official holiday), the time-limit for bringing an action must be deemed to have expired on Monday 2 May 2011, at midnight, in accordance with Article 101(2) of the Rules of Procedure.
13 The application was received by fax at the Registry of the Court on 21 April 2011, namely before expiry of the time-limit for bringing an action.
14 However, pursuant to Article 43(6) of the Rules of Procedure, the date on which a copy of the signed original of a pleading is received at the Registry of the Court by fax is taken into consideration, for the purposes of compliance with procedural time-limits, only if the signed original of the pleading is lodged at the Registry no later than 10 days thereafter.
15 In the present case, the original of the application was received at the Registry of the Court only on 5 May 2011, that is after expiry of the period of 10 days referred to in Article 43(6) of the Rules of Procedure. That period had in fact expired on 2 May 2011, at midnight. Contrary to the applicant’s submission, it is not necessary to take account, in the calculation of that period, of the fact that, in Barcelona, 22, 23, 24 and 25 April 2011 were public holidays. First, the official holidays to be taken into consideration are exclusively those of the place where the Court has its seat, namely Luxembourg, and which appear on the list of official holidays set out in Article 1 of Annex I to the Rules of Procedure of the Court of Justice, applicable to the General Court in accordance with the second subparagraph of Article 101(2) of the Rules of Procedure of the General Court. Of the public holidays relied on by the applicant, only Easter Monday, namely 25 April 2011, appears on that list. Second, and in any event, Article 101(1)(d) of the Rules of Procedure of the General Court provides expressly that ‘[p]eriods shall include official holidays’.
16 Thus, in accordance with Article 43(6) of the Rules of Procedure, only the date on which the signed original was lodged, namely 5 May 2011, is to be taken into consideration for the purposes of compliance with the time-limit for bringing an action. Accordingly, the Court concludes that the application was lodged out of time.
17 Moreover, the applicant has not proved, or even relied on, the existence of unforeseeable circumstances or of force majeure which would make it possible to derogate 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, applicable to proceedings before the General Court pursuant to Article 53 of that statute.
18 It follows from all the foregoing considerations that the application must be dismissed as manifestly inadmissible, without its being necessary to serve it on OHIM.
Costs
19 Since this order has been made before OHIM has been served with the application and before it could have incurred any costs, it is sufficient to order, pursuant to Article 87(1) of the Rules of Procedure, that the applicant must bear its own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. The action is dismissed as manifestly inadmissible.
2. Citi Travel, SL, shall bear its own costs.
Luxembourg, 12 July 2011.