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Legal status
1. The Office shall be an agency of the Union. It shall have legal personality. 2. In each of the Member States the Office shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. 3. The Office shall be represented by its Executive Director.
Staff
1. The Staff Regulations, the Conditions of Employment and the rules adopted by agreement between the institutions of the Union for giving effect to those Staff Regulations and Conditions of Employment shall apply to the staff of the Office, without prejudice to the application of Article 166 of this Regulation to the members of the Boards of Appeal. 2. Without prejudice to paragraph 1, the Office may make use of seconded national experts or other staff not employed by the Office. The Management Board shall adopt a decision laying down rules on the secondment to the Office of national experts.
Privileges and immunities
The Protocol on the Privileges and Immunities of the Union shall apply to the Office and its staff.
Liability
1. The contractual liability of the Office shall be governed by the law applicable to the contract in question. 2. The Court of Justice shall be competent to give judgment pursuant to any arbitration clause contained in a contract concluded by the Office. 3. In the case of non-contractual liability, the Office shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its departments or by its servants in the performance of their duties. 4. The Court of Justice shall have jurisdiction in disputes relating to compensation for the damage referred to in paragraph 3. 5. The personal liability of its servants towards the Office shall be governed by the provisions laid down in the Staff Regulations or in the Conditions of Employment applicable to them.
Languages
1. The application for an EU trade mark shall be filed in one of the official languages of the Union. 2. The languages of the Office shall be English, French, German, Italian and Spanish. 3. The applicant shall indicate a second language which shall be a language of the Office the use of which he accepts as a possible language of proceedings for opposition, revocation or invalidity proceedings. If the application was filed in a language which is not one of the languages of the Office, the Office shall arrange to have the application, as described in Article 31(1), translated into the language indicated by the applicant. 4. Where the applicant for an EU trade mark is the sole party to proceedings before the Office, the language of proceedings shall be the language used for filing the application for an EU trade mark. If the application was made in a language other than the languages of the Office, the Office may send written communications to the applicant in the second language indicated by the applicant in his application. 5. The notice of opposition and an application for revocation or a declaration of invalidity shall be filed in one of the languages of the Office. 6. Without prejudice to paragraph 5: (a) any application or declaration relating to an EU trade mark application may be filed in the language used for filing the application for that EU trade mark or in the second language indicated by the applicant in his application; (b) any application or declaration relating to a registered EU trade mark may be filed in one of the languages of the Office. However, when the application is filed by using any form provided by the Office as referred to in Article 100(2), such forms may be used in any of the official languages of the Union, provided that the form is completed in one of the languages of the Office, as far as textual elements are concerned. 7. If the language chosen, in accordance with paragraph 5, for the notice of opposition or the application for revocation or invalidity is the language of the application for a trade mark or the second language indicated when the application was filed, that language shall be the language of the proceedings. If the language chosen, in accordance with paragraph 5, for the notice of opposition or the application for revocation or invalidity is neither the language of the application for a trade mark nor the second language indicated when the application was filed, the opposing party or the party seeking revocation or invalidity shall be required to produce, at his own expense, a translation of his application either into the language of the application for a trade mark, provided that it is a language of the Office, or into the second language indicated when the application was filed. The translation shall be produced within one month of the expiry of the opposition period or of the date of filing an application for revocation or a declaration of invalidity. The language into which the application has been translated shall then become the language of the proceedings. 8. Parties to opposition, revocation, invalidity or appeal proceedings may agree that a different official language of the Union is to be the language of the proceedings. 9. Without prejudice to paragraphs 4 and 8, and unless provided otherwise, in written proceedings before the Office any party may use any language of the Office. If the language chosen is not the language of the proceedings, the party shall supply a translation into that language within one month of the date of the submission of the original document. Where the applicant for an EU trade mark is the sole party to proceedings before the Office and the language used for the filing of the application for the EU trade mark is not one of the languages of the Office, the translation may also be filed in the second language indicated by the applicant in his application. 10. The Executive Director shall determine the manner in which translations are to be certified. 11. The Commission shall adopt implementing acts specifying: (a) the extent to which supporting documents to be used in written proceedings before the Office may be filed in any language of the Union, and the need to supply a translation; (b) the requisite standards of translations to be filed with the Office. Those implementing acts shall be adopted in accordance with the examination procedure referred to Article 207(2).
Publication and entries in the Register
1. An application for an EU trade mark, as described in Article 31(1), and all other information the publication of which is prescribed by this Regulation or an act adopted pursuant to this Regulation, shall be published in all the official languages of the Union. 2. All entries in the Register shall be made in all the official languages of the Union. 3. In cases of doubt, the text in the language of the Office in which the application for the EU trade mark was filed shall be authentic. If the application was filed in an official language of the Union other than one of the languages of the Office, the text in the second language indicated by the applicant shall be authentic.
Translation services
The translation services required for the functioning of the Office shall be provided by the Translation Centre for the Bodies of the European Union.
Transparency
1. Regulation (EC) No 1049/2001 of the European Parliament and of the Council ( 16 ) shall apply to documents held by the Office. 2. The Management Board shall adopt detailed rules for applying Regulation (EC) No 1049/2001. 3. Decisions taken by the Office under Article 8 of Regulation (EC) No 1049/2001 may be challenged through the European Ombudsman or form the subject of an action before the Court of Justice of the European Union, under the conditions laid down in Articles 228 and 263 TFEU respectively. 4. The processing of personal data by the Office shall be subject to Regulation (EC) No 45/2001 of the European Parliament and of the Council ( 17 ) .
Security rules on the protection of classified and sensitive non-classified information
The Office shall apply the security principles contained in the Commission's security rules for protecting European Union Classified Information (EUCI) and sensitive non-classified information, as set out in Commission Decisions (EU, Euratom) 2015/443 ( 18 ) and 2015/444 ( 19 ) . The security principles shall cover, inter alia, provisions for the exchange, processing and storage of such information.
Tasks of the Office
1. The Office shall have the following tasks: (a) administration and promotion of the EU trade mark system established in this Regulation; (b) administration and promotion of the European Union design system established in Council Regulation (EC) No 6/2002 ( 20 ) ; (c) promoting convergence of practices and tools in the fields of trade marks and designs, in cooperation with the central industrial property offices in the Member States, including the Benelux Office for Intellectual Property; (d) the tasks referred to in Regulation (EU) No 386/2012 of the European Parliament and of the Council ( 21 ) ; (e) the tasks conferred on it under Directive 2012/28/EU of the European Parliament and of the Council ( 22 ) . 2. The Office shall cooperate with institutions, authorities, bodies, industrial property offices, international and non-governmental organisations in relation to the tasks conferred on it in paragraph 1. 3. The Office may provide voluntary mediation services for the purpose of assisting parties in reaching a friendly settlement.
Cooperation to promote convergence of practices and tools
1. The Office and the central industrial property offices of the Member States and the Benelux Office for Intellectual Property shall cooperate with each other to promote convergence of practices and tools in the field of trade marks and designs. Without prejudice to paragraph 3, this cooperation shall in particular cover the following areas of activity: (a) the development of common examination standards; (b) the creation of common or connected databases and portals for Union-wide consultation, search and classification purposes; (c) the continuous provision and exchange of data and information, including for the purposes of feeding of the databases and portals referred to in point (b); (d) the establishment of common standards and practices, with a view to ensuring interoperability between procedures and systems throughout the Union and enhancing their consistency, efficiency and effectiveness; (e) the sharing of information on industrial property rights and procedures, including mutual support to helpdesks and information centres; (f) the exchange of technical expertise and assistance in relation to the areas referred to in points (a) to (e). 2. On the basis of a proposal by the Executive Director, the Management Board shall define and coordinate projects of interest to the Union and the Member States with regard to the areas referred to in paragraphs 1 and 6, and shall invite the central industrial property offices of the Member States and the Benelux Office for Intellectual Property to participate in those projects. The project definition shall contain the specific obligations and responsibilities of each participating industrial property office of the Member States, the Benelux Office for Intellectual Property and the Office. The Office shall consult with user representatives in particular in the phases of definition of the projects and evaluation of their results. 3. The central industrial property offices of the Member States and the Benelux Office for Intellectual Property may opt out of, restrict or temporarily suspend their cooperation in the projects referred to in the first subparagraph of paragraph 2. When making use of the possibilities provided for in the first subparagraph, the central industrial property offices of the Member States and the Benelux Office for Intellectual Property shall provide the Office with a written statement explaining the reasons for their decision. 4. Once having committed to participate in certain projects, the central industrial property offices of the Member States and the Benelux Office for Intellectual Property shall, without prejudice to paragraph 3, participate effectively in the projects referred to in paragraph 2 with a view to ensuring that they are developed, function, are interoperable and kept up to date. 5. The Office shall provide financial support to the projects referred to in paragraph 2 to the extent that is necessary in order to ensure, for the purposes of paragraph 4, the effective participation of the central industrial property offices of the Member States and the Benelux Office for Intellectual Property in those projects. That financial support may take the form of grants and in-kind contributions. The total amount of funding shall not exceed 15 % of the yearly revenue of the Office. The beneficiaries of grants shall be the central industrial property offices of the Member States and the Benelux Office for Intellectual Property. Grants may be awarded without calls for proposals in accordance with the financial rules applicable to the Office and with the principles of grant procedures contained in Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council ( 23 ) and in Commission Delegated Regulation (EU) No 1268/2012 ( 24 ) . 6. The Office and the relevant competent authorities of the Member States shall cooperate with each other on a voluntary basis to promote the raising of awareness concerning the trade mark system and the fight against counterfeiting. Such cooperation shall include projects aiming, in particular, at the implementation of established standards and practices as well as at organising education and training activities. The financial support for those projects shall be part of the total amount of funding referred to in paragraph 5. Paragraphs 2 to 5 shall apply mutatis mutandis .
Functions of the Management Board
1. Without prejudice to the functions attributed to the Budget Committee in Section 6, the Management Board shall have the following functions: (a) on the basis of a draft submitted by the Executive Director in accordance with Article 157(4)(c), adopting the annual work programme of the Office for the coming year, taking into account the opinion of the Commission, and forwarding the adopted annual work programme to the European Parliament, to the Council and to the Commission; (b) on the basis of a draft submitted by the Executive Director in accordance with Article 157(4)(e) and taking into account the opinion of the Commission, adopting a multiannual strategic programme for the Office, including the Office's strategy for international cooperation, following an exchange of views between the Executive Director and the relevant committee in the European Parliament, and forwarding the adopted multiannual strategic programme to the European Parliament, to the Council and to the Commission; (c) on the basis of a draft submitted by the Executive Director in accordance with Article 157(4)(g), adopting the annual report and forwarding the adopted annual report to the European Parliament, to the Council, to the Commission and to the Court of Auditors; (d) on the basis of a draft submitted by the Executive Director in accordance with Article 157(4)(h), adopting the multiannual staff policy plan; (e) exercising the powers conferred on it under Article 152(2); (f) exercising the powers conferred on it under Article 172(5); (g) adopting rules on the prevention and management of conflicts of interest in the Office; (h) in accordance with paragraph 2, exercising, with respect to the staff of the Office, the powers conferred by the Staff Regulations on the Appointing Authority and by the Conditions of Employment on the Authority Empowered to Conclude Contracts of Employment (‘the appointing authority powers’); (i) adopting appropriate implementing rules to give effect to the Staff Regulations and the Conditions of Employment in accordance with Article 110 of the Staff Regulations; (j) drawing up the list of candidates provided for in Article 158(2); (k) ensuring adequate follow-up to the findings and recommendations stemming from the internal or external audit reports and evaluations referred to in Article 210, as well as from investigations of the European Anti-fraud Office (OLAF); (l) being consulted before adoption of the guidelines for examination in the Office and in the other cases provided for in this Regulation; (m) providing opinions and requests for information to the Executive Director and to the Commission where it considers it necessary. 2. The Management Board shall adopt, in accordance with Article 110 of the Staff Regulations and Article 142 of the Conditions of Employment, a decision based on Article 2(1) of the Staff Regulations and on Article 6 of the Conditions of Employment, delegating the relevant appointing authority powers to the Executive Director and defining the conditions under which that delegation of appointing authority powers can be suspended. The Executive Director shall be authorised to sub-delegate those powers. Where exceptional circumstances so require, the Management Board may, by way of a decision, temporarily suspend the delegation of the appointing authority powers to the Executive Director and those sub-delegated by the latter, and exercise them itself or delegate them to one of its members or to a staff member other than the Executive Director.
Composition of the Management Board
1. The Management Board shall be composed of one representative of each Member State, two representatives of the Commission and one representative of the European Parliament, and their respective alternates. 2. The members of the Management Board may, subject to its rules of procedure, be assisted by advisers or experts.
Chairperson of the Management Board
1. The Management Board shall elect a chairperson and a deputy chairperson from among its members. The deputy chairperson shall ex officio replace the chairperson in the event of his being prevented from attending to his duties. 2. The duration of the terms of office of the chairperson and the deputy chairperson shall be four years. The terms of office shall be renewable once. If, however, their membership of the Management Board ends at any time during their term of office, their term of office shall automatically expire on that date also.
Meetings
1. Meetings of the Management Board shall be convened by its chairperson. 2. The Executive Director shall take part in the deliberations, unless the Management Board decides otherwise. 3. The Management Board shall hold an ordinary meeting at least once a year. In addition, it shall meet on the initiative of its chairperson or at the request of the Commission or of one-third of the Member States. 4. The Management Board shall adopt rules of procedure. 5. The Management Board shall take its decisions by an absolute majority of its members. However, a majority of two-thirds of its members shall be required for the decisions which the Management Board is empowered to take under Article 153(1)(a) and (b), Article 155(1) and Article 158(2) and (4). In both cases each member shall have one vote. 6. The Management Board may invite observers to attend its meetings. 7. The secretariat for the Management Board shall be provided by the Office.
Functions of the Executive Director
1. The Office shall be managed by the Executive Director. The Executive Director shall be accountable to the Management Board. 2. Without prejudice to the powers of the Commission, the Management Board, and the Budget Committee, the Executive Director shall be independent in the performance of his duties and shall neither seek nor take instructions from a government or from any other body. 3. The Executive Director shall be the legal representative of the Office. 4. The Executive Director shall have in particular the following functions, which may be delegated: (a) taking all necessary steps, including the adoption of internal administrative instructions and the publication of notices, to ensure the functioning of the Office; (b) implementing the decisions adopted by the Management Board; (c) preparing a draft annual work programme indicating estimated human and financial resources for each activity, and submitting it to the Management Board after consultation of the Commission; (d) submitting to the Management Board proposals pursuant to Article 152(2); (e) preparing a draft multiannual strategic programme, including the Office's strategy for international cooperation, and submitting it to the Management Board after consultation of the Commission and following an exchange of views with the relevant committee in the European Parliament; (f) implementing the annual work programme and the multiannual strategic programme and reporting to the Management Board on their implementation; (g) preparing the annual report on the Office's activities and presenting it to the Management Board for approval; (h) preparing a draft multiannual staff policy plan and submitting it to the Management Board after consultation of the Commission; (i) preparing an action plan following-up on the conclusions of the internal or external audit reports and evaluations, as well as following up on the investigations of the OLAF, and reporting on progress twice a year to the Commission and to the Management Board; (j) protecting the financial interests of the Union by the application of preventive measures against fraud, corruption and any other illegal activities, by effective checks and, if irregularities are detected, by recovering amounts wrongly paid and, where appropriate, by imposing effective, proportionate and dissuasive administrative and financial penalties; (k) preparing an anti-fraud strategy for the Office and presenting it to the Budget Committee for approval; (l) in order to ensure uniform application of the Regulation, referring, where appropriate, to the enlarged Board of Appeal (‘the Grand Board’) questions on a point of law, in particular if the Boards of Appeal have issued diverging decisions on the point; (m) drawing up estimates of the revenue and expenditure of the Office and implementing the budget; (n) exercising the powers entrusted to him in respect of staff by the Management Board under Article 153(1)(h); (o) exercising the powers conferred on him under Articles 31(3), 34(5), 35(3), 94(2), 97(5), Articles 98, 100, 101, Articles 111(4), 112(3), 114(5), Articles 115, 116, Articles 120(4), 146(10), Article 178, Articles 179(1) and 180(2), and Article 181 in accordance with the criteria set out in this Regulation and in the acts adopted pursuant to this Regulation. 5. The Executive Director shall be assisted by one or more Deputy Executive Directors. If the Executive Director is absent or indisposed, the Deputy Executive Director or one of the Deputy Executive Directors shall replace him in accordance with the procedure laid down by the Management Board.
Appointment and removal of the Executive Director and extension of term of office
1. The Executive Director shall be engaged as a temporary agent of the Office under Article 2(a) of the Conditions of Employment. 2. The Executive Director shall be appointed by the Council by simple majority, from a list of candidates proposed by the Management Board, following an open and transparent selection procedure. Before being appointed, the candidate selected by the Management Board may be invited to make a statement before any competent European Parliament committee and to answer questions put by its members. For the purpose of concluding the contract with the Executive Director, the Office shall be represented by the chairperson of the Management Board. The Executive Director may be removed from office only upon a decision of the Council acting on a proposal from the Management Board. 3. The term of office of the Executive Director shall be five years. By the end of that period, the Management Board shall undertake an assessment which takes into account an evaluation of the performance of the Executive Director and the Office's future tasks and challenges. 4. The Council, taking into account the assessment referred to in paragraph 3, may extend the term of office of the Executive Director once and for no more than five years. 5. An Executive Director whose term of office has been extended may not participate in another selection procedure for the same post at the end of his overall term of office. 6. The Deputy Executive Director or Deputy Executive Directors shall be appointed or removed from office as provided for in paragraph 2, after consultation of the Executive Director and, where applicable, the Executive Director-elect. The term of office of the Deputy Executive Director shall be five years. It may be extended once and for no more than five years by the Council, after consultation of the Executive Director.
Competence
For taking decisions in connection with the procedures laid down in this Regulation, the following shall be competent: (a) examiners; (b) Opposition Divisions; (c) a department in charge of the Register; (d) Cancellation Divisions; (e) Boards of Appeal; (f) any other unit or person appointed by the Executive Director to that effect.
Examiners
An examiner shall be responsible for taking decisions on behalf of the Office in relation to an application for registration of an EU trade mark, including the matters referred to in Articles 41, 42, 76 and 85, except in so far as an Opposition Division is responsible.
Opposition Divisions
1. An Opposition Division shall be responsible for taking decisions on an opposition to an application to register an EU trade mark. 2. The decisions of the Opposition Divisions shall be taken by three-member groups. At least one member shall be legally qualified. Decisions relating to costs or to procedures shall be taken by a single member. The Commission shall adopt implementing acts specifying the exact types of decisions that are to be taken by a single member. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 207(2).
Department in charge of the Register
1. The Department in charge of the Register shall be responsible for taking decisions in respect of entries in the Register. 2. It shall also be responsible for keeping the list of professional representatives referred to in Article 120(2). 3. The decisions of the Department shall be taken by a single member.
Cancellation Divisions
1. A Cancellation Division shall be responsible for taking decisions in relation to: (a) applications for the revocation or a declaration of invalidity of an EU trade mark; (b) requests for the assignment of an EU trade mark as provided for in Article 21. 2. The decisions of the Cancellation Divisions shall be taken by three-member groups. At least one member shall be legally qualified. Decisions relating to costs or to procedures as specified in the acts adopted pursuant to Article 161(2) shall be taken by a single member.
General Competence
Decisions required under this Regulation which do not fall within the competence of an examiner, an Opposition Division, a Cancellation Division or the Department in charge of the Register, shall be taken by any official or unit appointed by the Executive Director for that purpose.
Boards of Appeal
1. The Boards of Appeal shall be responsible for deciding on appeals from decisions taken pursuant to Articles 160 to 164. 2. The decisions of the Boards of Appeal shall be taken by three members, at least two of whom are legally qualified. In certain specific cases, decisions shall be taken by the Grand Board chaired by the President of the Boards of Appeal or by a single member, who shall be legally qualified. 3. In order to determine the special cases which fall under the jurisdiction of the Grand Board, account should be taken of the legal difficulty or the importance of the case or of special circumstances which justify it. Such cases may be referred to the Grand Board: (a) by the authority of the Boards of Appeal referred to in Article 166(4)(a); or (b) by the Board handling the case. 4. The Grand Board shall also be responsible for giving reasoned opinions on questions of law referred to it by the Executive Director pursuant to Article 157(4)(l). 5. To determine which specific cases fall under the authority of a single member, account should be taken of the lack of difficulty of the legal or factual matters raised, the limited importance of the individual case or the absence of other specific circumstances. The decision to confer a case on one member in the cases referred to shall be adopted by the Board handling the case.
Independence of the members of the Boards of Appeal
1. The President of the Boards of Appeal and the chairpersons of the Boards shall be appointed, in accordance with the procedure laid down in Article 158 for the appointment of the Executive Director, for a term of five years. They shall not be removed from office during this term, unless there are serious grounds for such removal and the Court of Justice, on application by the institution which appointed them, takes a decision to this effect. 2. The term of office of the President of the Boards of Appeal may be extended once for one additional five-year period, or until retirement age if this age is reached during the new term of office, after a prior positive evaluation of his performance by the Management Board. 3. The term of office of the chairpersons of the Boards may be extended for additional five-year periods, or until retirement age if this age is reached during the new term of office, after a prior positive evaluation of their performance by the Management Board, and after consulting the President of the Boards of Appeal. 4. The President of the Boards of Appeal shall have the following managerial and organisational functions: (a) chairing the Presidium of the Boards of Appeal (‘the Presidium’), responsible for laying down the rules and organising the work of the Boards; (b) ensuring the implementation of the decisions of the Presidium; (c) allocating cases to a Board on the basis of objective criteria determined by the Presidium; (d) forwarding to the Executive Director the Boards' expenditure requirements, with a view to drawing up the expenditure estimates. The President of the Boards of Appeal shall chair the Grand Board. 5. The members of the Boards of Appeal shall be appointed by the Management Board for a term of five years. Their term of office may be extended for additional five-year periods, or until retirement age if that age is reached during the new term of office after a prior positive evaluation of their performance by the Management Board, and after consulting the President of the Boards of Appeal. 6. The members of the Boards of Appeal shall not be removed from office unless there are serious grounds for such removal and the Court of Justice, after the case has been referred to it by the Management Board on the recommendation of the President of the Boards of Appeal, and after consulting the chairperson of the Board to which the member concerned belongs, takes a decision to this effect. 7. The President of the Boards of Appeal and the chairpersons and members of the Boards of Appeal shall be independent. In their decisions, they shall not be bound by any instructions. 8. Decisions taken by the Grand Board on appeals or opinions on questions of law referred to it by the Executive Director pursuant to Article 165 shall be binding on the decision-making instances of the Office listed in Article 159. 9. The President of the Boards of Appeal and the chairpersons and members of the Boards of Appeal shall not be examiners or members of the Opposition Divisions, the Department in charge of the Register or Cancellation Divisions.
Presidium of the Boards of Appeal and Grand Board
1. The Presidium shall comprise the President of the Boards of Appeal, who shall chair it, the chairmen of the Boards and Board members elected for each calendar year by and from among all the members of the Boards other than the President of the Boards of Appeal and the chairmen of the Boards. The number of Board members so elected shall constitute a quarter of the number of Board members, other than the President of the Boards of Appeal and the chairmen of the Boards, and that number shall be rounded up if necessary. 2. The Grand Board referred to in Article 165(2) shall comprise nine members, including the President of the Boards of Appeal, the chairmen of the Boards, the rapporteur designated prior to referral to the Grand Board, if applicable, and members drawn in rotation from a list comprising the names of all members of the Boards of Appeal other than the President of the Boards of Appeal and the chairmen of the Boards.
Delegation of powers
The Commission is empowered to adopt delegated acts in accordance with Article 208 specifying the details concerning the organisation of the Boards of Appeal, including the setting up and the role of the Presidium, the composition of the Grand Board and the rules on referrals to it, and the conditions under which decisions are to be taken by a single member in accordance with Article 165(2) and (5).
Exclusion and objection
1. Examiners and members of the Divisions set up within the Office or of the Boards of Appeal may not take part in any proceedings if they have any personal interest therein, or if they have previously been involved as representatives of one of the parties. Two of the three members of an Opposition Division shall not have taken part in examining the application. Members of the Cancellation Divisions may not take part in any proceedings if they have participated in the final decision on the case in the proceedings for registration or opposition proceedings. Members of the Boards of Appeal may not take part in appeal proceedings if they participated in the decision under appeal. 2. If, for one of the reasons mentioned in paragraph 1 or for any other reason, a member of a Division or of a Board of Appeal considers that he should not take part in any proceedings, he shall inform the Division or Board accordingly. 3. Examiners and members of the Divisions or of a Board of Appeal may be objected to by any party for one of the reasons mentioned in paragraph 1, or if suspected of partiality. An objection shall not be admissible if, while being aware of a reason for objection, the party has taken a procedural step. No objection may be based upon the nationality of examiners or members. 4. The Divisions and the Boards of Appeal shall decide as to the action to be taken in the cases specified in paragraphs 2 and 3 without the participation of the member concerned. For the purposes of taking this decision the member who withdraws or has been objected to shall be replaced in the Division or Board of Appeal by his alternate.
Mediation centre
1. For the purposes of Article 151(3), the Office may establish a Mediation Centre (‘the Centre’). 2. Any natural or legal person may use the Centre's services on a voluntary basis with the aim of reaching a friendly settlement of disputes, based on this Regulation or Regulation (EC) No 6/2002, by mutual agreement. 3. The parties shall have recourse to mediation by means of a joint request. The request shall not be deemed to have been filed until the corresponding charge has been paid. The Executive Director shall fix the amount to be charged in accordance with Article 178(1). 4. In the case of disputes subject to the proceedings pending before the Opposition Divisions, Cancellation Divisions or before the Boards of Appeal of the Office a joint request for mediation may be presented at any time after the lodging of a notice of opposition, an application for revocation or an application for a declaration of invalidity or a notice of appeal against decisions of the Opposition or Cancellation Divisions. 5. The proceedings in question shall be suspended and the time periods, other than the time periods for the payment of the applicable fee, shall be interrupted as from the date of the filing of a joint request for mediation. The time periods shall continue as from the day on which the proceedings are resumed. 6. The parties shall be invited to jointly appoint, from the list referred to in paragraph 12, a mediator who has declared that he has a command of the language of the mediation in question. Where the parties do not appoint a mediator within 20 days of the invitation to do so, the mediation shall be deemed to have failed. 7. The parties shall agree together with the mediator on the detailed arrangements for the mediation in a mediation agreement. 8. The mediator shall conclude the mediation proceedings as soon as the parties reach a settlement agreement, or one of the parties declares that it wishes to end the mediation or the mediator establishes that the parties have failed to reach such an agreement. 9. The mediator shall inform the parties as well as the relevant instance of the Office as soon as the mediation proceedings have been concluded. 10. The discussions and negotiations conducted within the framework of mediation shall be confidential for all persons involved in the mediation, in particular for the mediator, the parties and their representatives. All documents and information submitted during the mediation shall be kept separately from, and shall not be part of, the file of any other proceedings before the Office. 11. The mediation shall be conducted in one of the official languages of the Union to be agreed upon by the parties. Where the mediation relates to disputes pending before the Office, the mediation shall be conducted in the language of the Office proceedings, unless otherwise agreed by the parties. 12. The Office shall establish a list of mediators who shall support parties in resolving disputes. The mediators shall be independent and possess relevant skills and experience. The list may include mediators who are employed by the Office, and mediators who are not so employed. 13. Mediators shall be impartial in the exercise of their duties and shall declare any real or perceived conflict of interest upon their designation. Members of the decision-making instances of the Office listed in Article 159 shall not take part in mediation concerning a case in which they have: (a) had any prior involvement in the proceedings referred to mediation; (b) any personal interest in those proceedings; or (c) been previously involved as a representative of one of the parties. 14. Mediators shall not take part as members of the decision-making instances of the Office listed in Article 159 in proceedings resumed as a consequence of a mediation failure. 15. The Office may cooperate with other recognised national or international bodies dealing with mediation.
Budget Committee
1. The Budget Committee shall have the functions assigned to it in this Section. 2. Articles 154 and 155, Article 156(1) to (4), and (5), in so far as it relates to the election of the chairperson and deputy chairperson, and Article 156(6) and (7) shall apply to the Budget Committee, mutatis mutandis . 3. The Budget Committee shall take its decisions by an absolute majority of its members. However, a majority of two-thirds of its members shall be required for the decisions which the Budget Committee is empowered to take under Article 173(3) and Article 177. In both cases each member shall have one vote.
Budget
1. Estimates of all the Office's revenue and expenditure shall be prepared for each financial year and shall be shown in the Office's budget. Each financial year shall correspond to the calendar year. 2. The revenue and expenditure shown in the budget shall be in balance. 3. Revenue shall comprise, without prejudice to other types of income, total fees payable under Annex I to this Regulation, total fees as provided for in Regulation (EC) No 6/2002, total fees payable, under the Madrid Protocol, for an international registration designating the Union, and other payments made to Contracting Parties to the Madrid Protocol, total fees payable, under the Geneva Act referred to in Article 106c of Regulation (EC) No 6/2002, for an international registration designating the Union and other payments made to Contracting Parties to the Geneva Act, and, to the extent necessary, a subsidy entered against a specific heading of the Commission section of the general budget of the Union. 4. Every year the Office shall offset the costs incurred by the central industrial property offices of the Member States, by the Benelux Office for Intellectual Property and by any other relevant authority to be nominated by a Member State, as the result of the specific tasks which they carry out as functional parts of the EU trade mark system in the context of the following services and procedures: (a) opposition and invalidity proceedings before the central industrial property offices of the Member States and the Benelux Office for Intellectual Property involving EU trade marks; (b) provision of information on the functioning of the EU trade mark system through helpdesks and information centres; (c) enforcement of EU trade marks, including action taken pursuant to Article 9(4). 5. The overall offsetting of the costs identified in paragraph 4 shall correspond to 5 % of the yearly revenue of the Office. Without prejudice to the third subparagraph of this paragraph, on a proposal by the Office and after having consulted the Budget Committee, the Management Board shall determine the distribution key on the basis of the following fair, equitable and relevant indicators: (a) the annual number of EU trade mark applications originating from applicants in each Member State; (b) the annual number of national trade mark applications in each Member State; (c) the annual number of oppositions and applications for a declaration of invalidity submitted by proprietors of EU trade marks in each Member State; (d) the annual number of cases brought before the EU trade mark courts designated by each Member State in accordance with Article 123. For the purpose of substantiating the costs referred to in paragraph 4, Member States shall submit to the Office by 31 March of each year, statistical data demonstrating the figures referred to in points (a) to (d) of the first subparagraph of this paragraph for the preceding year, which shall be included in the proposal to be made to the Management Board. On grounds of equity, the costs incurred by the bodies referred to in paragraph 4 in each Member State shall be deemed to correspond to at least 2 % of the total offsetting provided for under this paragraph. 6. The obligation by the Office to offset the costs referred to in paragraph 4 and incurred in a given year shall only apply to the extent that no budgetary deficit occurs in that year. 7. In the event of a budgetary surplus, and without prejudice to paragraph 10, on a proposal by the Office and after having consulted the Budget Committee, the Management Board may increase the percentage laid down in paragraph 5 to a maximum of 10 % of the yearly revenue of the Office. 8. Without prejudice to paragraphs 4 to 7 and paragraph 10 of this Article and to Articles 151 and 152, where a substantive surplus is generated over five consecutive years, the Budget Committee, upon a proposal from the Office and in accordance with the annual work programme and multiannual strategic programme referred to in Article 153(1)(a) and (b), shall decide by a two-thirds majority on the transfer to the budget of the Union of a surplus generated from 23 March 2016. 9. The Office shall prepare on a biannual basis a report for the European Parliament, the Council and the Commission on its financial situation, including on the financial operations performed under Article 152(5) and (6), and paragraphs 5 and 7 of this Article. On the basis of that report, the Commission shall review the financial situation of the Office. 10. The Office shall provide for a reserve fund covering one year of its operational expenditure to ensure the continuity of its operations and the execution of its tasks.
Preparation of the budget
1. The Executive Director shall draw up each year an estimate of the Office's revenue and expenditure for the following year and shall send it to the Budget Committee not later than 31 March in each year, together with a list of posts. 2. Should the budget estimates provide for a Union subsidy, the Budget Committee shall immediately forward the estimate to the Commission, which shall forward it to the budget authority of the Union. The Commission may attach an opinion on the estimate along with an alternative estimate. 3. The Budget Committee shall adopt the budget, which shall include the Office's list of posts. Should the budget estimates contain a subsidy from the general budget of the Union, the Office's budget shall, if necessary, be adjusted.
Audit and control
1. An internal audit function shall be set up within the Office, to be performed in compliance with the relevant international standards. The internal auditor, appointed by the Executive Director, shall be responsible to him for verifying the proper operation of budget implementation systems and procedures of the Office. 2. The internal auditor shall advise the Executive Director on dealing with risks, by issuing independent opinions on the quality of management and control systems and by issuing recommendations for improving the conditions of implementation of operations and promoting sound financial management. 3. The responsibility for putting in place internal control systems and procedures suitable for carrying out his tasks shall lie with the authorising officer.
Combating fraud
1. In order to facilitate combating fraud, corruption and other unlawful activities under Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council ( 25 ) , the Office shall accede to the Inter-institutional Agreement of 25 May 1999 concerning internal investigations by OLAF, and adopt the appropriate provisions applicable to all the employees of the Office using the template set out in the Annex to that Agreement. 2. The Court of Auditors shall have the power of audit, on the basis of documents and on the spot, over all grant beneficiaries, contractors and subcontractors who have received Union funds from the Office. 3. OLAF may carry out investigations, including on-the-spot checks and inspections, in accordance with the provisions and procedures laid down in Regulation (EU, Euratom) No 883/2013 and Council Regulation (Euratom, EC) No 2185/96 ( 26 ) with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union in connection with a grant or a contract funded by the Office. 4. Without prejudice to paragraphs 1, 2 and 3, cooperation agreements with third countries and international organisations, contracts, grant agreements and grant decisions of the Office shall contain provisions expressly empowering the Court of Auditors and OLAF to conduct such audits and investigations, in accordance with their respective competences. 5. The Budget Committee shall adopt an anti-fraud strategy which is proportionate to the fraud risks having regard to the cost-benefit of the measures to be implemented.
Auditing of accounts
1. Not later than 31 March in each year the Executive Director shall transmit to the Commission, the European Parliament, the Budget Committee and the Court of Auditors accounts of the Office's total revenue and expenditure for the preceding financial year. The Court of Auditors shall examine them in accordance with Article 287 TFEU. 2. The Budget Committee shall give a discharge to the Executive Director in respect of the implementation of the budget.
Financial provisions
The Budget Committee shall, after consulting the Court of Auditors and the Commission, adopt internal financial provisions specifying, in particular, the procedure for establishing and implementing the Office's budget. As far as is compatible with the particular nature of the Office, the financial provisions shall be based on the financial regulations adopted for other bodies set up by the Union.
Fees and charges and due date
1. The Executive Director shall lay down the amount to be charged for any services rendered by the Office other than those set out in Annex I, as well as the amount to be charged for the European Union Trade Marks Bulletin, the Official Journal of the Office and any other publications issued by the Office. The amounts of charges shall be set in euros and shall be published in the Official Journal of the Office. The amount of each charge shall not exceed what is necessary to cover the costs of the specific service rendered by the Office. 2. Fees and charges in respect of which the due date is not specified in this Regulation shall be due on the date of receipt of the request for the service for which the fee or the charge is incurred. With the consent of the Budget Committee, the Executive Director may determine which of the services mentioned in the first subparagraph are not to be dependent upon the advance payment of the corresponding fees or charges.
Payment of fees and charges
1. Fees and charges due to the Office shall be paid by payment or transfer to a bank account held by the Office. With the consent of the Budget Committee, the Executive Director may establish which specific methods of payment other than those set out in the first subparagraph, in particular by means of deposits in current accounts held with the Office, may be used. Determinations made pursuant to the second subparagraph shall be published in the Official Journal of the Office. All payments, including by any other method of payment established pursuant to the second subparagraph, shall be made in euros. 2. Every payment shall indicate the name of the person making the payment and shall contain the necessary information to enable the Office to establish immediately the purpose of the payment. In particular, the following information shall be provided: (a) when the application fee is paid, the purpose of the payment, namely ‘application fee’; (b) when the opposition fee is paid, the file number of the application and the name of the applicant for the EU trade mark against which opposition is entered, and the purpose of the payment, namely ‘opposition fee’; (c) when the revocation fee and the invalidity fee are paid, the registration number and the name of the proprietor of the EU trade mark against which the application is directed, and the purpose of the payment, namely ‘revocation fee’ or ‘invalidity fee’. 3. If the purpose of the payment referred to in paragraph 2 cannot immediately be established, the Office shall require the person making the payment to notify it in writing of this purpose within such period as it may specify. If the person does not comply with this request in due time, the payment shall be considered not to have been made. The amount which has been paid shall be refunded.
Deemed date of payment
1. In the cases referred to in the first subparagraph of Article 179(1), the date on which the payment shall be considered to have been made to the Office shall be the date on which the amount of the payment or of the transfer is actually entered in a bank account held by the Office. 2. Where the methods of payment referred to in the second subparagraph of Article 179(1) may be used, the Executive Director shall establish the date on which such payments are to be considered to have been made. 3. Where, under paragraphs 1 and 2, payment of a fee is not considered to have been made until after the expiry of the period in which it was due, it shall be considered that this period has been observed if evidence is provided to the Office that the persons who made the payment in a Member State, within the period within which the payment should have been made, duly gave an order to a banking establishment to transfer the amount of the payment, and paid a surcharge of 10 % of the relevant fee or fees, but not exceeding EUR 200. No surcharge shall be payable if the relevant order to the banking establishment has been given not later than 10 days before the expiry of the period for payment. 4. The Office may request the person who made the payment to produce evidence as to the date on which the order to the banking establishment as referred to in paragraph 3 was given and, where required, to pay the relevant surcharge within a period to be specified by it. If the person fails to comply with that request or if the evidence is insufficient, or if the required surcharge is not paid in due time, the period for payment shall be considered not to have been observed.
Insufficient payments and refund of insignificant amounts
1. A time limit for payment shall, in principle, be considered to have been observed only if the full amount of the fee has been paid in due time. If the fee is not paid in full, the amount which has been paid shall be refunded after the period for payment has expired. 2. The Office may, however, in so far as is possible within the time remaining before the end of the period, give the person making the payment the opportunity to pay the amount lacking or, where this is considered justified, overlook any small amounts lacking, without prejudice to the rights of the person making the payment. 3. With the consent of the Budget Committee, the Executive Director may waive action for the enforced recovery of any sum due where the sum to be recovered is minimal or where such recovery is too uncertain. 4. Where an excessive sum is paid to cover a fee or a charge, the excess shall not be refunded if the amount is insignificant and the party concerned has not expressly requested a refund. With the consent of the Budget Committee the Executive Director may determine the amount below which an excessive sum paid to cover a fee or a charge shall not be refunded. Determinations pursuant to the second subparagraph shall be published in the Official Journal of the Office.
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Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.