ORDER OF THE GENERAL COURT (Eighth Chamber)

10 May 2010 (1)

(Community design – Invalidity proceedings – Community design representing chaff cutters – Period allowed for commencing proceedings – Manifest inadmissibility)

In Case T-98/10,

Franssons Verkstäder AB, established in Sundsvall (Sweden), represented by O. Öhlén, 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

Lindner Recyclingtech GmbH, established in Spittal (Austria),

ACTION brought against the decision of the Third Board of Appeal of OHIM of 22 October 2009 (Case R 690/2007-3), relating to invalidity proceedings in respect of a Community design between the other party to the proceedings before the Board of Appeal of OHIM, Lindner Recyclingtech GmbH, and the applicant, Franssons Verkstäder AB,

THE GENERAL COURT (Eighth Chamber),

composed of M. E. Martins Ribeiro, President (Rapporteur), S. Papasavvas and A. Dittrich, Judges,

Registrar: E. Coulon,

makes the following

Order

 Procedure and form of order sought by the applicant

1        By application lodged at the Registry of the Court on 1 March 2010, the applicant brought the present action.

2        The applicant claims that the Court should:

–        declare the decision of the Third Board of Appeal of OHIM of 22 October 2009 (Case R 690/2007-3) invalid ;

–        restore the protection of the registered Community design in question.

 Law

3        Under Article 111 of the Rules of Procedure, where the action is manifestly inadmissible the Court may, without taking further steps in the proceedings, give a decision on the action by reasoned order.

4        In the present case, the Court considers that it has sufficient information from the documents in the file and has decided, pursuant to that article, to give a decision without taking further steps in the proceedings.

5        Under Article 61(5) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), as amended, an action against a decision of a Board of Appeal of OHIM must be brought within two months of the date of notification of that decision. According to Article 102(2) of the Rules of Procedure, prescribed time-limits are to be extended on account of distance by a single period of 10 days.

6        According to settled case‑law, that period of time 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 Court must ascertain of its own motion whether that time-limit was observed (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).

7        In the present case, it is apparent from the documents in the file that the contested measure was notified to the applicant on 3 November 2009. In accordance with Article 101(1)(a) and (b) and Article 102(2) of the Rules of Procedure, the time-limit for bringing proceedings expired on 13 January 2010, including the extension on account of distance. It follows that the application, lodged at the Registry of the Court on 1 March 2010 is out of time.

8        The applicant concedes in its application that the action was lodged late, that lateness resulting, in its submission, from a genuine misunderstanding of the established practice for lodging an application with the General Court of the European Union. More specifically, the applicant explains that it had lodged the application well within the prescribed time‑limit at the offices of the defendant, in accordance with a well established practice in Sweden, the member state where the applicant is established.

9        In the first place, it should be recalled that the Court has repeatedly held that no derogation from the application of the Community rules on procedural time-limits may be made, save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure, in accordance with the second paragraph of Article 45 of the Statute of the Court of Justice, since the strict application of those rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice (see, the order in Case C-242/07 P Belgium v Commission [2007] ECR 1-9757, paragraph 16 and the case-law cited).

10      On the one hand, the applicant has, in the present case, neither established nor relied on the existence of unforeseeable circumstances or of force majeure. On the other hand, to the extent that, by claiming that the application had been lodged within the prescribed time‑limit at the offices of the defendant, it intends to rely on an excusable error, it must be pointed out that the rules governing the lodging of an application with the General Court of the European Union, applicable in the present case, do not pose any particular difficulty of interpretation. Accordingly, it cannot be accepted that this is a case of excusable error on the part of the applicant, justifying derogation from the strict application of the abovementioned rules (order in Case C-406/01 Germany v Parliament and Council [2002] ECR 1-4561, paragraph 21; order in Case T-126/00 Confindustria and Others v Commission [2001] ECR 11-85, paragraph 21, and Joined Cases T-142/01 and T-283/01 OPTUC v Commission [2004] ECR 11-329,paragraph 44).

11      In the second place, it follows from the case-law that the legal order of the European Union does not in fact aim, in principle, to define its concepts on the basis of one or more national legal systems without express provision to that effect (Case 64/81 Corman [1982] ECR 13, paragraph 8, and Case C-296/95 EMU Tabac and Others [1998] ECR 1-1605, paragraph 30). Consequently, it is necessary to dismiss the arguments derived from the procedural law and practice applicable in Sweden.

12      It follows from all of the above considerations that the action must be dismissed as manifestly inadmissible and there is no need for it to be served on the defendant.

 Costs

13      As the present order was adopted prior to service of the application on the defendant and before the latter could have incurred costs, it is sufficient to decide that the applicant must bear its own costs pursuant to Article 87(1) of the Rules of Procedure.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby orders:

1.      The action is dismissed.

2.      The applicant shall pay its own costs.

Luxembourg, 10 May 2010.

E. Coulon

        M. E. Martins Ribeiro

Registrar

       President