Cipla Europe NV v Glaxo Group Ltd [2022] EUECJ C-245/22 (12 July 2022)

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(Appeal - Intervention - EU trade mark - Cancellation proceedings - Leave for other party to the proceedings before the Board of Appeal of the European Union Intellectual Property Office (EUIPO) to participate in the proceedings in the case before the General Court - Time limits - Unforeseeable circumstances - Participation in the oral proceedings - Rejection)

APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 6 April 2022,

Cipla Europe NV, established in Antwerp (Belgium), represented by J.-B. Devaureix and J.C. Erdozain López, abogados,

Glaxo Group Ltd, established in Brentford (United Kingdom), represented by T. de Haan, avocat, and F. Verhoestraete, advocaat,

European Union Intellectual Property Office (EUIPO), represented by V. Ruzek, acting as Agent,

1 By its appeal, Cipla Europe NV seeks to have set aside the order of the General Court order of 9 March 2022, Glaxo Group v EUIPO - Cipla Europe (Shape of an inhaler) (T-477/21, not published, EU:T:2022:144; ‘the order under appeal’), by which the latter decided that Cipla Europe was not entitled to participate, as an intervener, in the proceedings in Case T-477/21.

2 Article 104(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) provides:

‘The applicant for or proprietor of an EU trade mark or any other party to proceedings before the [European Union Intellectual Property Office (EUIPO)] who, in spite of all due care required by the circumstances having been taken, was unable to comply with a time limit vis-à-vis [EUIPO] shall, upon application, have his rights re-established if the obstacle to compliance has the direct consequence, by virtue of the provisions of this Regulation, of causing the loss of any right or means of redress.’

3 The background to the dispute is set out in paragraphs 1 to 5 of the order under appeal and may, for the purposes of the present proceedings, be summarised as follows.

4 On 9 November 2005, Glaxo Group Ltd obtained from EUIPO registration of a three-dimensional EU trade mark.

5 On 16 December 2014, Cipla Europe filed an application for a declaration of invalidity of that trade mark. After the Cancellation Division of EUIPO granted that application on 16 September 2016, the First Board of Appeal of EUIPO, on 19 May 2021, dismissed an appeal brought by Glaxo Group and annulled that mark.

6 By application lodged at the Court Registry on 9 September 2021, Glaxo Group brought an action for annulment of the decision of the First Board of Appeal of EUIPO.

7 In accordance with Article 178(3) of the Rules of Procedure of the General Court, the application was served on Cipla Europe by letter from the Registrar of the General Court of 11 August 2021. Cipla Europe acknowledged receipt of that letter on 26 August 2021.

8 On 13 November 2021, Cipla Europe lodged a response at the Registry of the General Court.

9 By a measure of organisation of procedure of 30 November 2021, the General Court requested Cipla Europe to submit its observations on the reasons for the late lodging of its response.

10 By the order under appeal, the General Court decided that Cipla Europe was not entitled to participate as an intervener in the proceedings in Case T-477/21 and rejected the application for confidential treatment which it had submitted.

11 First of all, the General Court rejected Cipla Europe’s argument that the late submission of its response was due to unforeseeable circumstances.

12 In that regard, after recalling the Court of Justice’s case-law on the concepts of unforeseeable circumstances or force majeure and excusable error, the General Court noted, in paragraph 21 of the order under appeal, that Cipla Europe relied on human error in the internal handling of the letter by its services and, in paragraph 22 of that order, that a party could not rely on the inadequate functioning of its internal organisation or on a failure to apply its internal instructions to support its claim that the error which it or its employees committed was excusable, or the existence of unforeseeable circumstances or force majeure.

13 Secondly, the General Court rejected, in paragraph 30 of the order, Cipla Europe’s request for an extension of the time limit for lodging a response.

14 Thirdly, the General Court noted, in paragraph 31 of the order under appeal, that Cipla Europe had sought leave, in the alternative, to intervene in order to be able to submit observations at the oral stage of the proceedings, pursuant to Article 116(6) of the Rules of Procedure of the General Court of 2 May 1991 (OJ 1991 L 136, p. 1), as amended on 19 June 2013 (OJ 2013 L 173, p. 66) (‘the former Rules of Procedure of the General Court’).

15 With regard to that application, the General Court found, in paragraph 32 of that order, that the provision relied on by Cipla Europe was repealed on 1 July 2015.

16 Moreover, the General Court considered, in paragraphs 33 and 34 of the order, that, assuming that that application was to be understood as based on Article 142 of the Rules of Procedure of the General Court, it should be dismissed as out of time.

17 Fourthly, the General Court dismissed, in paragraph 41 of the order under appeal, Cipla Europe’s application for confidential treatment.

- in the alternative, to allow it to intervene within the meaning of Article 116 of the former Rules of Procedure of the General Court.

20 In support of its appeal, Cipla Europe raises two grounds relating, first, to the application of Article 45 of the Statute of the Court of Justice of the European Union and, secondly, to the application of Article 116(6) of the former Rules of Procedure of the General Court.

21 By its first ground of appeal, Cipla Europe submits that the General Court does not explain why a single error which occurred within an organisation that had previously proved to be effective cannot be regarded as an unforeseeable circumstance within the meaning of Article 45 of the Statute of the Court of Justice of the European Union.

22 The General Court’s interpretation of that provision entails that no human error may be considered an unforeseeable circumstance, which would be contrary to a literal interpretation of Article 45 and to the common meaning of those terms.

23 Furthermore, the appellant submits that, in patent and trade mark matters, where an error has been made as a result of unforeseeable circumstances, provision is made for a person’s rights to be restored. It cites in this respect Article 104 of Regulation 2017/1001, the application of which it requests by analogy in this case.

24 In that regard, the circumstances relied on by Cipla Europe are unusual and unforeseeable, as this is the first time that the internal letter-handling system in question did not work properly. Those circumstances could not have been avoided, since they were not foreseeable. The appellant did show due diligence, in that it strictly observed the time limit of 2 months and 10 days from the date of the stamp placed by its services.

25 In those circumstances, the Court should take into consideration that the lodging of the response out of time did not prejudice any of the other parties to the proceedings.

26 Furthermore, if the appeal is dismissed, Cipla Europe is deprived of its right to be heard and its right to effective judicial protection.

27 Glaxo Group and EUIPO contend that the first ground of appeal should be dismissed.

28 In so far as the first ground of appeal is to be understood as including a plea alleging that the order under appeal is inadequately reasoned, it should be borne in mind, first, that, in the context of an appeal, the purpose of the Court of Justice’s review is, inter alia, to ascertain whether the General Court addressed, to the requisite legal standard, all the arguments raised by the appellant and, secondly, that the ground of appeal alleging that the General Court failed to respond to arguments relied on at first instance amounts, essentially, to pleading a breach of the obligation to state reasons which derives from Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute, and from Article 117 of the Rules of Procedure of the General Court (order of the Vice-President of the Court of 17 May 2022, Shanghai Panati v EUIPO, C-103/22 P(I), not published, EU:C:2022:399, paragraph 27 and the case-law cited).

29 That obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and the reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (order of the Vice-President of the Court of 17 May 2022, Shanghai Panati v EUIPO, C-103/22 P(I), not published, EU:C:2022:399, paragraph 28 and the case-law cited).

30 In this case, the General Court recalled, in paragraphs 18 to 20 of the order under appeal, the conditions in which the existence of unforeseeable circumstances, force majeure or excusable error makes it possible to set aside a procedural bar for failure to comply with a time limit. Furthermore, in paragraph 22 of that order, the General Court noted that a party could not rely for that purpose either on the inadequate functioning of its internal organisation or on a failure to apply its internal instructions.

31 Since the General Court found, in paragraph 21 of that order, that Cipla Europe relied on a human error in the internal processing of its mail, it inferred therefrom, in paragraph 23 of that order, on the basis of the reasons given in the preceding paragraph of the present order, that Cipla Europe had not established the existence of unforeseeable circumstances or force majeure.

32 In the light of those factors, it appears that the reasoning in paragraphs 18 to 23 of the order under appeal is sufficient to enable Cipla Europe to understand why the General Court considered that it had not established the existence of unforeseeable circumstances and to enable the Court of Justice to exercise its power of review in that regard.

33 Consequently, the first part of the first ground of appeal, alleging that the order under appeal is inadequately reasoned, must be dismissed.

34 As regards the second part of that ground of appeal, alleging that the General Court erred in law in ruling out the existence of unforeseeable circumstances, it should be recalled, first, that, under Article 45 of the Statute of the Court of Justice of the European Union, no right is to be prejudiced in consequence of the expiry of a time limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure.

35 As the General Court emphasised, in essence, in paragraph 19 of the order under appeal, according to the Court of Justice’s settled case-law, the concept of force majeure or unforeseeable circumstances, which corresponds to exceptional circumstances, contains both an objective element relating to abnormal circumstances extraneous to the person concerned, and a subjective element involving the obligation of that person concerned to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices (order of the Vice-President of the Court of 17 May 2022, Shanghai Panati v EUIPO, C-103/22 P(I), not published, EU:C:2022:399, paragraph 51 and the case-law cited).

36 Therefore, errors committed by an applicant’s employees or by service providers used by the applicant in the conduct of its business cannot, in so far as they do not constitute circumstances unconnected with the applicant, be relied on to demonstrate the existence of unforeseeable circumstances or of force majeure (order of the Vice-President of the Court of 17 May 2022, Shanghai Panati v EUIPO, C-103/22 P(I), not published, EU:C:2022:399, paragraph 52 and the case-law cited).

37 Therefore, the General Court did not err in law in holding, in paragraph 22 of the order under appeal, that a party may not rely on the inadequate functioning of its internal organisation or on a failure to apply its internal instructions in support of the existence of unforeseeable circumstances or of force majeure (see, to that effect, order of the Vice-President of the Court of 17 May 2022, Shanghai Panati v EUIPO, C-103/22 P(I), not published, EU:C:2022:399, paragraph 53).

38 Accordingly, even assuming that the human error relied on by Cipla Europe was indeed unforeseeable and that the latter had shown diligence, those factors are not such as to call into question the conclusion reached by the General Court.

39 Secondly, it must be emphasised that the General Court’s interpretation of Article 45 of the Statute of the Court of Justice of the European Union in the order under appeal does not, contrary to Cipla Europe’s submissions, in any way preclude the possibility that human error may, in certain circumstances, constitute an unforeseeable circumstance within the meaning of that provision.

40 That interpretation, which stems from the requirement that only circumstances extraneous to the person concerned may constitute unforeseeable circumstances, makes it possible to classify a human error committed by a person not dependent on the person concerned as an unforeseeable circumstance, where that error is abnormal in nature and the person concerned has protected himself or herself against the consequences of that error by taking appropriate measures without making excessive sacrifices.

41 Thirdly, Cipla Europe’s argument based on Article 104 of Regulation 2017/1001 must be rejected.

42 That provision sets out rules applicable to proceedings before EUIPO where a party to those proceedings has been unable to meet a time limit despite having exercised all due care required by the circumstances. Consequently, and in so far as Article 45 of the Statute of the Court of Justice of the European Union expressly lays down the rules applicable in such a situation before the Courts of the European Union, that Article 104 is not applicable to proceedings before those courts.

43 In that regard, while it is true that the second paragraph of Article 53 of that statute provides that the Rules of Procedure of the General Court may derogate from certain provisions of that statute in order to take account of the specific features of litigation in the field of intellectual property, it should be noted (i) that those rules of procedure do not contain specific rules relating to the running of time in that field and (ii) that Article 45 of that statute is not, in any event, one of the provisions from which the rules of procedure may derogate.

44 Fourthly, Cipla Europe’s argument that it could be granted a derogation from the time limit for the submission of the response on the ground that that derogation would not prejudice the other parties must be rejected, since the strict application of the procedural rules is not intended solely to protect the procedural rights of the parties but, more broadly, to meet the requirement of legal certainty and the need to avoid discrimination or arbitrary treatment in the administration of justice (order of the Vice-President of the Court of 17 May 2022, Shanghai Panati v EUIPO, C-103/22 P(I), not published, EU:C:2022:399, paragraph 54 and the case-law cited).

45 Fifthly, the General Court cannot be validly criticised for disregarding Cipla Europe’s right to be heard and its right to effective judicial protection by excluding the existence of unforeseeable circumstances or of force majeure.

46 It is settled case-law of the Court that the right to be heard and the right to effective judicial protection are in no way undermined by the strict application of EU rules concerning procedural time limits (order of the Vice-President of the Court of 17 May 2022, Shanghai Panati v EUIPO, C-103/22 P(I), not published, EU:C:2022:399, paragraph 56 and the case-law cited).

47 In the light of all the foregoing, the first ground of appeal must be rejected as unfounded.

48 By its second ground of appeal, Cipla Europe submits that the General Court wrongly considered that it had applied for leave to intervene under Articles 142 and 143 of the Rules of Procedure of the General Court.

49 In its application initiating the proceedings, it argued only that, since no provision of those rules of procedure prohibits the submission of oral observations by a person who has not complied with the time limits to which the admission of his or her intervention was subject, the rules should be interpreted as providing for that possibility. It also submits that that option was provided for in Article 116(6) of the former Rules of Procedure of the General Court.

50 In those circumstances, the General Court should have ensured that Cipla Europe was treated in the same way as other parties in a comparable situation in the cases which gave rise to the order of the General Court of 30 May 2002, Coe Clerici Logistics v Commission (T-52/00, EU:T:2002:134), and the order of the President of the Fourth Chamber of the General Court of 28 April 2005, Microsoft v Commission (T-201/04, EU:T:2005:149).

51 That interpretation of the Rules of Procedure of the General Court would moreover be in line with the national law of certain Member States, including Spanish law, which allows a defendant to appear even after the expiry of a procedural time limit. It would, moreover, be contrary to the Charter of Fundamental Rights of the European Union, and in particular to the right to an effective remedy, not to apply this principle recognised in national law before the General Court.

52 Glaxo Group and EUIPO contend that the second ground of appeal should be rejected.

53 It should be noted that, in its response to the measure of organisation of procedure of 30 November 2021, Cipla Europe did not in any way rely on Articles 142 and 143 of the Rules of Procedure of the General Court, on the application of which the General Court ruled in paragraphs 33 to 35 of the order under appeal.

54 However, it is common ground that the General Court also took into consideration, as is apparent from paragraphs 31 and 32 of that order, Cipla Europe’s arguments to the effect that it should be allowed to make oral submissions during the proceedings before the General Court.

55 In those circumstances, the fact that the General Court responded, moreover, to arguments which had not been put forward by Cipla Europe is not such as to justify the annulment of that order, in so far as that circumstance does not imply that Cipla Europe should have been allowed to intervene in Case T-477/21.

56 Consequently, Cipla Europe’s argument concerning paragraphs 33 to 35 of that order must be dismissed as being ineffective.

57 With regard to the reasons given by the General Court in paragraphs 31 and 32 of the order under appeal, it is common ground that Article 116(6) of the former Rules of Procedure of the General Court was repealed on 1 July 2015.

58 Furthermore, Cipla Europe’s argument that the General Court should have recognised the possibility of submitting oral observations, which was granted by that provision to persons who made an application to intervene late, despite the repeal of that provision, cannot succeed.

59 The status before the General Court of a party to the proceedings before the Board of Appeal of EUIPO other than the applicant before the General Court is governed by Article 173 of the Rules of Procedure of the General Court.

60 It follows from paragraph 2 of that article that such a party becomes a party to the proceedings before the General Court as an intervener when it lodges a pleading before the expiry of the time limit prescribed for lodging the response. That provision also states that, if he or she fails to respond to the application in the manner and within the time limit prescribed, a party to the proceedings before the Board of Appeal of EUIPO other than the applicant before the General Court loses the status of intervener before the General Court.

61 It follows that a party to the proceedings before the Board of Appeal of EUIPO other than the applicant before the General Court who, like Cipla Europe, did not submit a response to the application within the time limit laid down in that regard by Article 179 of the Rules of Procedure of the General Court, is not a party to the proceedings before the General Court and cannot therefore submit observations in the course of the proceedings before it.

62 In those circumstances, Cipla Europe cannot, in any event, criticise the General Court for failing to recognise the procedural rights which were granted, under the former Rules of Procedure of the General Court, to persons who made late applications to intervene.

63 The fact that the law of certain Member States provides for a system different from that laid down by the Rules of Procedure of the General Court, even if shown to be true, is not such as to establish that the General Court erred in law.

64 Since the procedure before the General Court is governed by the Statute of the Court of Justice of the European Union and the Rules of Procedure of the General Court, it is not for the General Court to apply national procedural rules, unless EU law expressly refers to those rules.

65 Furthermore, Cipla Europe’s argument that the Charter of Fundamental Rights has been infringed must be rejected, for the reason set out in paragraph 46 of this order.

66 Accordingly, the second ground of appeal must be rejected as in part, ineffective, and in part, unfounded.

67 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs.

68 Under Article 138(1) of the Rules of Procedure, which applies to the appeal procedure by virtue of Article 184(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

69 Since Glaxo Group and EUIPO have applied for costs against Cipla Europe and the latter has been unsuccessful, Cipla Europe must be ordered to bear its own costs and to pay those incurred by Glaxo Group and EUIPO.

2. Cipla Europe NV shall bear its own costs and pay those incurred by Glaxo Group Ltd and by the European Union Intellectual Property Office (EUIPO).

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