Notice of appeal
1. A notice of appeal filed in accordance with Article 68(1) of Regulation (EU) 2017/1001 shall contain the following:
(a)
the name and address of the appellant in accordance with Article 2(1)(b) of Implementing Regulation (EU) 2018/626;
(b)
where the appellant has appointed a representative, the name and the business address of the representative in accordance with Article 2(1)(e) of Implementing Regulation (EU) 2018/626;
(c)
where representation of the appellant is mandatory pursuant to Article 119(2) of Regulation (EU) 2017/1001, the name and the business address of the representative in accordance with Article 2(1)(e) of Implementing Regulation (EU) 2018/626;
(d)
a clear and unambiguous identification of the decision subject to appeal indicating the date on which it was issued and the file number of the proceedings to which the decision subject to appeal relates;
(e)
where the decision subject to appeal is only contested in part, a clear and unambiguous identification of the goods or services in respect of which the decision subject to appeal is contested.
2. Where the notice of appeal is filed in another official language of the Union than the language of proceedings, the appellant shall provide a translation thereof within four months of the date of notification of the decision subject to appeal.
3. Where in ex parte proceedings the decision subject to appeal has been taken in an official language other than the language of proceedings, the appellant may file the notice of appeal either in the language of the proceedings or in the language in which the decision subject to appeal was taken; in either case, the language used for the notice of appeal shall become the language of the appeal proceedings and paragraph 2 shall not apply.
4. As soon as the notice of appeal has been filed in inter partes proceedings, it shall be notified to the defendant.
Statement of grounds
1. A statement setting out the grounds of appeal filed pursuant to the fourth sentence of Article 68(1) of Regulation (EU) 2017/1001 shall contain a clear and unambiguous identification of the following:
(a)
the appeal proceedings to which it refers by indicating either the corresponding appeal number or the decision subject to appeal in accordance with the requirements laid down in Article 21(1)(d) of this Regulation;
(b)
the grounds of appeal on which the annulment of the contested decision is requested within the extent identified in accordance with Article 21(1)(e) of this Regulation;
(c)
the facts, evidence and arguments in support of the grounds invoked, submitted in accordance with the requirements set out in Article 55(2).
2. The statement of grounds shall be filed in the language of the appeal proceedings as determined in accordance with Article 21(2) and (3). Where the statement of grounds is filed in another official language of the Union, the appellant shall provide a translation thereof within one month of the date of the submission of the original statement.
Admissibility of an appeal
1. The Board of Appeal shall reject an appeal as inadmissible in any of the following events:
(a)
where the notice of appeal has not been filed within two months of the date of notification of the decision subject to appeal;
(b)
where the appeal does not comply with Articles 66 and 67 of Regulation (EU) 2017/1001, or with those laid down in Article 21(1)(d) and Article 21(2) and (3) of this Regulation, unless those deficiencies are remedied within four months of the date of notification of the decision subject to appeal;
(c)
where the notice of appeal does not comply with the requirements laid down in Article 21(1)(a), (b), (c) and (e), and the appellant has, despite having been informed thereof by the Board of Appeal, not remedied those deficiencies within the time limit specified by the Board of Appeal to that effect;
(d)
where the statement of grounds has not been filed within four months of the date of notification of the decision subject to appeal;
(e)
where the statement of grounds does not comply with the requirements laid down in Article 22(1)(a) and (b), and the appellant has, despite having been informed thereof by the Board of Appeal, not remedied those deficiencies within the time limit specified by the Board of Appeal to that effect or has not submitted the translation of the statement of grounds within one month of the date of the submission of the original statement in accordance with Article 22(2).
2. Where the appeal appears to be inadmissible, the chairperson of the Board of Appeal to which the case has been allocated pursuant to Article 35(1) may request the Board of Appeal to decide without delay on the admissibility of the appeal prior to the notification to the defendant of the notice or of the statement of grounds, as the case may be.
3. The Board of Appeal shall declare an appeal as deemed not to have been filed where the appeal fee has been paid after the expiry of the time limit set out in the first sentence of Article 68(1) of Regulation (EU) 2017/1001. In such a case, paragraph 2 of this Article shall apply.
Response
1. In inter partes proceedings, the defendant may file a response within two months of the date of notification of the appellant's statement of grounds. In exceptional circumstances, that time limit may be extended upon reasoned request by the defendant.
2. The response shall contain the name and address of the defendant in accordance with Article 2(1)(b) of Implementing Regulation (EU) 2018/626 and shall comply, mutatis mutandis , with the conditions laid down in Article 21(1)(b), (c) and (d), Article 22(1)(a) and (c) and Article 22(2) of this Regulation.
Cross appeal
1. Where the defendant seeks a decision annulling or altering the contested decision on a point not raised in the appeal, pursuant to Article 68(2) of Regulation (EU) 2017/1001, that cross appeal shall be filed within the time limit for filing a response in accordance with Article 24(1) of this Regulation.
2. A cross appeal shall be submitted by a document separate from the response.
3. The cross appeal shall contain the name and address of the defendant in accordance with Article 2(1)(b) of Implementing Regulation (EU) 2018/626 and shall comply mutatis mutandis with the conditions laid down in Article 21(1)(b) to (e) and Article 22 of this Regulation.
4. A cross appeal shall be rejected as inadmissible in any of the following events:
(a)
where it has not been filed within the time limit laid down in paragraph 1;
(b)
where it has not been filed in observance of the requirements laid down either in paragraph 2 or Article 21(1)(d);
(c)
where it does not comply with the requirements referred to in paragraph 3, and the defendant has, despite having been informed thereof by the Board of Appeal, not remedied these deficiencies within the time limit specified by the Board of Appeal to that effect or has not submitted the translation of the cross appeal and the corresponding statement of grounds within one month of the date of submission of the original.
5. The appellant shall be invited to submit observations on the defendant's cross appeal within two months of the date of notification to the appellant. In exceptional circumstances, that time limit may be extended by the Board of Appeal upon the reasoned request of the appellant. Article 26 shall apply mutatis mutandis .
Reply and rejoinder in inter partes proceedings
1. Upon the appellant's reasoned request filed within two weeks of the notification of the response, the Board of Appeal may, pursuant to Article 70(2) of Regulation (EU) 2017/1001, authorise the appellant to supplement the statement of grounds with a reply within a period specified by the Board of Appeal.
2. In such a case, the Board of Appeal shall also authorise the defendant to supplement the response with a rejoinder within a period specified by the Board of Appeal.
Examination of the appeal
1. In ex parte proceedings, and with respect to those goods or services which form part of the subject matter of the appeal, the Board of Appeal, in compliance with Article 45(3) of Regulation (EU) 2017/1001, shall proceed in accordance with Article 42 of Regulation (EU) 2017/1001 where it raises a ground for refusal of the trade mark application which had not already been invoked in the decision subject to appeal in application of that provision.
2. In inter partes proceedings, the examination of the appeal and, as the case may be, the cross appeal, shall be restricted to the grounds invoked in the statement of grounds and, as the case may be, in the cross appeal. Matters of law not raised by the parties shall be examined by the Board of Appeal only where they concern essential procedural requirements or where it is necessary to resolve them in order to ensure a correct application of Regulation (EU) 2017/1001 having regard to the facts, evidence and arguments presented by the parties.
3. The examination of the appeal shall include the following claims or requests provided that they have been raised in the statement of grounds of the appeal or, as the case may be, in the cross appeal and provided that they were raised in due time in the proceedings before the instance of the Office which adopted the decision subject to appeal:
(a)
distinctiveness acquired through use as referred to in Article 7(3) and Article 59(2) of Regulation (EU) 2017/1001;
(b)
recognition of the earlier trade mark on the market acquired through use for the purposes of Article 8(1)(b) of Regulation (EU) 2017/1001;
(c)
proof of use pursuant to Article 47(2) and (3) of Regulation (EU) 2017/1001 or Article 64(2) and (3) of Regulation (EU) 2017/1001.
4. In accordance with Article 95(2) of Regulation (EU) 2017/1001, the Board of Appeal may accept facts or evidence submitted for the first time before it only where those facts or evidence meet the following requirements:
(a)
they are, on the face of it, likely to be relevant for the outcome of the case; and
(b)
they have not been produced in due time for valid reasons, in particular where they are merely supplementing relevant facts and evidence which had already been submitted in due time, or are filed to contest findings made or examined by the first instance of its own motion in the decision subject to appeal.
5. The Board of Appeal shall, at the latest in its decision on the appeal and, as the case may be, the cross appeal, decide on requests for restriction, division or partial surrender of the contested mark declared during the appeal proceedings by the applicant or the proprietor in accordance with Articles 49, 50 or 57 of Regulation (EU) 2017/1001. Where the Board of Appeal accepts the restriction, division or partial surrender, it shall without delay inform the department in charge of the Register and the departments dealing with parallel proceedings involving the same mark accordingly.
Communications by the Board of Appeal
1. Communications by the Board of Appeal in the course of the examination of the appeal or with a view to facilitating an amicable settlement of proceedings shall be prepared by the rapporteur and shall be signed by the rapporteur on behalf of the Board of Appeal, in agreement with the chairperson of the Board of Appeal.
2. Where a Board of Appeal communicates with the parties regarding its provisional opinion on matters of fact or law, it shall state that it is not bound by such a communication.
Comments on questions of general interest
The Board of Appeal may, on its own initiative or upon the written, reasoned request of the Executive Director of the Office, invite the Executive Director to comment on questions of general interest which arise in the course of proceedings pending before it. The parties shall be entitled to submit their observations on the Executive Director's comments.
Reopening of the examination of absolute grounds
1. Where, in ex parte proceedings, the Board of Appeal considers that an absolute ground for refusal may be applicable to goods or services listed in the trade mark application which do not form part of the subject matter of the appeal, it shall inform the examiner competent for examining that application who may decide to reopen the examination pursuant to Article 45(3) of Regulation (EU) 2017/1001 with respect to those goods or services.
2. Where a decision of the Opposition Division is subject to an appeal, the Board of Appeal may, by means of a reasoned interim decision and without prejudice to Article 66(1) of Regulation (EU) 2017/1001, suspend the appeal proceedings and remit the contested application to the examiner competent for examining that application with a recommendation to reopen the examination pursuant to Article 45(3) of Regulation (EU) 2017/1001, where it considers that an absolute ground for refusal shall apply to some or all of the goods or services listed in the trade mark application.
3. Where the contested application has been remitted in application of paragraph 2, the examiner shall inform the Board of Appeal without delay whether or not the examination of the contested application has been reopened. Where the examination has been reopened, the appeal proceedings shall remain suspended until the examiner's decision has been taken and, where the contested application is rejected in whole or in part, until the examiner's decision to this effect has become final.
Examination of an appeal as a matter of priority
1. Upon reasoned request of the appellant or of the defendant and after hearing the other party, the Board of Appeal may decide, having regard to the particular urgency and the circumstances of the case, to examine the appeal as a matter of priority, without prejudice to the provisions in Articles 23 and 26, including the provisions on time limits.
2. The request for the examination of the appeal as a matter of priority may be filed at any time in the course of the appeal proceedings. It shall be filed in a separate document and shall be supported by evidence as to the urgency and the particular circumstances of the case.
Formal content of the Board of Appeal's decision
The Board of Appeal's decision shall contain:
(a)
a statement that it is delivered by the Boards of Appeal;
(b)
the date when the decision was taken;
(c)
the names of the parties and of their representatives;
(d)
the number of the appeal to which it refers and an identification of the decision subject to appeal in accordance with the requirements laid down in Article 21(1)(d);
(e)
an indication as to the formation of the Board of Appeal;
(f)
the name and, without prejudice to Article 39(5), the signature of the chairperson and members who took part in the decision, including an indication of who acted as rapporteur in the case, or, where the decision is delivered by a single member, the name and signature of the member who took the decision;
(g)
the name and the signature of the Registrar or, as the case may be, of the member of the Registry signing on the Registrar's behalf;
(h)
a summary of the facts and of the arguments submitted by the parties;
(i)
a statement of the reasons for which the decision has been taken;
(j)
the order of the Board of Appeal, including, where necessary, a decision on costs.
Reimbursement of the appeal fee
The appeal fee shall be reimbursed by order of the Board of Appeal in either of the following events:
(a)
where the appeal is not deemed to have been filed in accordance with the second sentence of Article 68(1) of Regulation (EU) 2017/1001;
(b)
where the decision-making instance of the Office which adopted the contested decision grants revision pursuant to Article 69(1) of Regulation (EU) 2017/1001 or revokes the contested decision in application of Article 103 of Regulation (EU) 2017/1001;
(c)
where, following reopening of the examination proceedings within the meaning of Article 45(3) of Regulation (EU) 2017/1001 upon the Board of Appeal's recommendation pursuant to Article 30(2) of this Regulation, the contested application has been rejected by final decision of the examiner and the appeal has become devoid of purpose as a consequence thereof;
(d)
where the Board of Appeal considers such reimbursement equitable by reason of a substantial procedural violation.
Revision and revocation of the decision subject to appeal
1. Where, in ex parte proceedings, the appeal is not rejected pursuant to Article 23(1), the Board of Appeal shall submit the notice of appeal and the statement of grounds of appeal to the instance of the Office which adopted the contested decision for the purposes of Article 69 of Regulation (EU) 2017/1001.
2. Where the instance of the Office which adopted the decision subject to appeal decides to grant revision pursuant to Article 69(1) of Regulation (EU) 2017/1001, it shall inform the Board of Appeal thereof without delay.
3. Where the instance of the Office which adopted the decision subject to appeal has initiated the procedure for revoking the decision subject to appeal pursuant to Article 103(2) of Regulation (EU) 2017/1001, it shall inform the Board of Appeal thereof without delay for the purposes of Article 71 of this Regulation. It shall also inform the Board of Appeal without delay about the final outcome of that procedure.
Allocation of an appeal to a Board and designation of a rapporteur
1. As soon as the notice of appeal has been filed, the President of the Boards shall allocate the case to a Board of Appeal according to the objective criteria determined by the Presidium of the Boards of Appeal referred to in Article 166(4)(c) of Regulation (EU) 2017/1001.
2. For each case allocated to a Board of Appeal pursuant to paragraph 1, its chairperson shall designate a member of that Board of Appeal, or the chairperson, as rapporteur.
3. Where a case falls under the authority of a single member pursuant to Article 36(1), the Board of Appeal handling a case shall designate the rapporteur as single member pursuant to Article 165(5) of Regulation (EU) 2017/1001.
4. Where a decision of a Board of Appeal on a case has been annulled or altered by a final ruling of the General Court or, as the case may be, of the Court of Justice, the President of the Boards of Appeal shall, with a view to complying with that ruling in accordance with Article 72(6) of Regulation (EU) 2017/1001, reallocate the case pursuant to paragraph 1 of this Article to a Board of Appeal, which shall not comprise those members who had adopted the annulled decision, except where the case is referred to the enlarged Board of Appeal (‘Grand Board’) or where the annulled decision had been taken by the Grand Board.
5. Where several appeals are filed against the same decision, those appeals shall be considered in the same proceedings. Where appeals involving the same parties are filed against separate decisions concerning the same mark, or have other relevant factual or legal elements in common, those appeals may be considered in joined proceedings with the consent of the parties.
Cases falling under the authority of a single member
1. The Board of Appeal handling the case may designate a single member within the meaning of Article 165(2) of Regulation (EU) 2017/1001 for the purposes of the following decisions:
(a)
decisions pursuant to Article 23;
(b)
decisions closing the appeal proceedings following withdrawal, rejection, surrender or cancellation of the contested or the earlier mark;
(c)
decisions closing the appeal proceedings following withdrawal of the opposition, of the request for revocation or for a declaration of invalidity or of the appeal;
(d)
decisions on measures pursuant to Article 102(1) and Article 103(2) of Regulation (EU) 2017/1001, provided that the correction or, as the case may be, the revocation of the decision on the appeal concerns a decision taken by a single member;
(e)
decisions pursuant to Article 104(4) of Regulation (EU) 2017/1001;
(f)
decisions pursuant to Article 109(4), (5) and (8) of Regulation (EU) 2017/1001;
(g)
decisions on appeals against decisions in ex parte proceedings taken on the grounds laid down in Article 7 of Regulation (EU) 2017/1001, which are either manifestly unfounded or manifestly well founded.
2. Where the single member considers that the conditions set out in paragraph 1 or in Article 165(5) of Regulation (EU) 2017/1001 are not, or no longer, met, the single member shall refer the case back to the Board of Appeal in its composition of three members by submitting a draft decision pursuant to Article 41 of this Regulation.
Referral to the Grand Board
1. Without prejudice to the faculty to refer a case to the Grand Board under Article 165(3) of Regulation (EU) 2017/1001, a Board of Appeal shall refer a case allocated to it to the Grand Board if it considers that it must deviate from an interpretation of the relevant legislation given in an earlier decision of the Grand Board, or if it observes that the Boards of Appeal have issued diverging decisions on a point of law which is liable to affect the outcome of the case.
2. All decisions on referrals of appeal cases to the Grand Board shall state the reasons for which the referring Board of Appeal or, as the case may be, the Presidium of the Boards of Appeal considers that this is justified, shall be communicated to the parties to the case and shall be published in the Official Journal of the Office.
3. The Grand Board shall, without delay, refer the case back to the Board of Appeal to which it was originally allocated if it believes that the conditions for the original referral are not, or no longer, met.
4. Requests for a reasoned opinion on questions on a point of law pursuant to Article 157(4)(l) of Regulation (EU) 2017/1001 shall be referred to the Grand Board in writing, shall state the questions of law of which the interpretation is sought, and may also state the Executive Director's view on the different possible interpretations as well as on their respective legal and practical consequences. The request shall be published in the Official Journal of the Office.
5. Where a Board of Appeal has to decide, in a case pending before it, on the same point in law that has already been raised in a referral to the Grand Board pursuant to Article 165(3) or Article 157(4)(l) of Regulation (EU) 2017/1001, it shall suspend the proceedings until the Grand Board has taken its decision or delivered its reasoned opinion.
6. Groups or bodies representing manufacturers, producers, suppliers of services, traders or consumers which can establish an interest in the result of a case on appeal or a request for a reasoned opinion brought before the Grand Board, may submit written observations within two months following the publication in the Official Journal of the Office of the decision of referral or, as the case may be, the request for a reasoned opinion. They shall not be parties to the proceedings before the Grand Board and shall bear their own costs.
Change in the composition of a Board
1. Where, after oral proceedings, the composition of a Board of Appeal is changed pursuant to Article 43(2) and (3), all parties to the proceedings shall be informed that, at the request of any party, fresh oral proceedings shall be held before the Board of Appeal in its new composition. Fresh oral proceedings shall also be held if the new member so requests and provided that the other members of the Board of Appeal have given their agreement.
2. The new member of a Board of Appeal shall be bound to the same extent as the other members by any interim decision which has already been taken.
Deliberation, voting and signing of decisions
1. The rapporteur shall submit to the other members of the Board of Appeal a draft of the decision to be taken and shall set a reasonable time limit within which to oppose it or to ask for changes.
2. The Board of Appeal shall meet to deliberate on the decision to be taken if it appears that its members are not all of the same opinion. Only members of the Board of Appeal shall participate in the deliberations; the chairperson of the Board of Appeal may, however, authorise other officers such as the Registrar or interpreters to attend. Deliberations shall be and remain secret.
3. During the deliberations between members of a Board of Appeal, the opinion of the rapporteur shall be heard first, and, if the rapporteur is not the chairperson, the opinion of the chairperson shall be heard last.
4. If voting is necessary, votes shall be taken in the same sequence, save that the chairperson shall always vote last. Abstentions shall not be permitted.
5. All members of the Board of Appeal taking the decision shall sign it. However, where the Board of Appeal has already reached a final decision and a member is unable to act, that member shall not be replaced and the chairperson shall sign the decision on the member's behalf. Where the chairperson is unable to act, the most senior member of the Board of Appeal as determined in accordance with Article 43(1) shall sign the decision on behalf of the chairperson.
6. Paragraphs 1 to 5 shall not apply where a decision is to be taken by a single member pursuant to Article 165(2) of Regulation (EU) 2017/1001 and Article 36(1) of this Regulation. In such cases, decisions shall be signed by the single member.
Chairperson of a Board of Appeal
A chairperson shall preside over a Board of Appeal and shall have the following duties:
(a)
designate a member of the Board of Appeal, or himself or herself, as rapporteur for each case allocated to that Board of Appeal in accordance with Article 35(2);
(b)
designate, on behalf of the Board of Appeal, the rapporteur as single member pursuant to Article 165(2) of Regulation (EU) 2017/1001;
(c)
request the Board of Appeal to decide on the admissibility of the appeal in accordance with Article 23(2) of this Regulation;
(d)
direct the preparatory examination of the case carried out by the rapporteur in accordance with Article 41 of this Regulation;
(e)
preside over, and sign the minutes of, oral hearings and the taking of evidence.
Rapporteur to a Board of Appeal
1. The rapporteur shall carry out a preliminary study of the appeal assigned to the rapporteur, prepare the case for examination and deliberation by the Board of Appeal, and draft the decision to be taken by the Board of Appeal.
2. To that effect, the rapporteur shall, where necessary and subject to the direction of the chairperson of the Board of Appeal, have the following duties:
(a)
invite the parties to file observations in accordance with Article 70(2) of Regulation (EU) 2017/1001;
(b)
decide on requests for the extension of time limits and, as the case may be, set time limits within the meaning of Article 24(1), Article 25(5) and Article 26 of this Regulation, and on suspensions pursuant to Article 71;
(c)
prepare communications in accordance with Article 28 and the oral hearing;
(d)
sign the minutes of oral proceedings and of the taking of evidence.
Registry
1. A Registry shall be set up at the Boards of Appeal. It shall be responsible for the receipt, dispatch, safekeeping and notification of all documents relating to the proceedings before the Boards of Appeal, and for the compilation of the relevant files.
2. The Registry shall be headed by a Registrar. The Registrar shall fulfil the tasks referred to in this Article under the authority of the President of the Boards of Appeal, without prejudice to the provisions in paragraph 3.
3. The Registrar shall ensure that all formal requirements and time limits, laid down in Regulation (EU) 2017/1001, in this Regulation or in decisions of the Presidium of the Boards of Appeal adopted in accordance with Article 166(4)(c) and (d) of Regulation (EU) 2017/1001 are respected. To this effect, the Registrar shall have the following duties:
(a)
sign the decisions taken by the Boards of Appeal in respect of appeals;
(b)
take and sign the minutes of oral proceedings and of the taking of evidence;
(c)
provide, either of its own motion or upon request from the Board of Appeal, reasoned opinions to the Board of Appeal on procedural and formal requirements including on irregularities pursuant to Article 23(2) of this Regulation;
(d)
submit the appeal, in accordance with Article 34(1) of this Regulation, to the instance of the Office which adopted the contested decision;
(e)
order, on behalf of the Board of Appeal, in the cases referred to in Article 33(a) and (b) of this Regulation, the reimbursement of the appeal fee.
4. The Registrar shall, upon delegation of the President of the Boards of Appeal, have the following duties:
(a)
allocate cases in accordance with Article 35(1) and (4);
(b)
implement, pursuant to Article 166(4)(b) of Regulation (EU) 2017/1001, decisions of the Presidium of the Boards of Appeal relating to the conduct of proceedings before the Boards of Appeal.
5. The Registrar may, upon delegation of the Presidium of the Boards of Appeal made upon proposal of the President of the Boards of Appeal, perform other tasks relating to the conduct of appeal proceedings before the Boards of Appeal and the organisation of their work.
6. The Registrar may delegate the tasks referred to in this Article to a member of the Registry.
7. Where the Registrar is prevented from acting within the meaning of Article 43(4), or where the post of Registrar is vacant, the President of the Boards of Appeal shall appoint a member of the Registry who shall perform the tasks of the Registrar in the Registrar's absence.
8. The members of the Registry shall be managed by the Registrar.
Order of seniority and replacement of members and chairpersons
1. The seniority of chairpersons and members shall be calculated according to the date on which they took up their duties as specified in the instrument of appointment or, failing that, as fixed by the Management Board of the Office. Where there is equal seniority on that basis, the order of seniority shall be determined by age. Chairpersons and members whose term of office is renewed shall retain their former seniority.
2. Where the chairperson of a Board of Appeal is prevented from acting, that chairperson shall be replaced, on the basis of seniority as determined in accordance with paragraph 1, by the most senior member of that Board of Appeal, or, where no member of that Board of Appeal is available, by the most senior of the other members of the Boards of Appeal.
3. Where a member of a Board of Appeal is prevented from acting, that member shall be replaced, on the basis of seniority as determined in accordance with paragraph 1, by the most senior member of that Board of Appeal, or, where no member of that Board of Appeal is available, by the most senior of the other members of the Boards of Appeal.
4. For the purposes of paragraphs 2 and 3, chairpersons and members of the Boards of Appeal shall be considered to be prevented from acting in case of leave, sickness, inescapable commitments and exclusion pursuant to Article 169 of Regulation (EU) 2017/1001 and Article 35(4) of this Regulation. A chairperson shall also be considered to be prevented from acting where that chairperson acts ad interim as President of the Boards of Appeal pursuant to Article 47(2) of this Regulation. Where the post of chairperson or member is vacant, their respective functions shall be exercised ad interim pursuant to the provisions in paragraphs 2 and 3 of this Article concerning replacement.
5. Any members considering themselves prevented from acting shall without delay inform the chairperson of the Board of Appeal concerned. Any chairpersons considering themselves prevented from acting shall without delay inform simultaneously that chairperson's alternate determined in accordance with paragraph 2 and the President of the Boards of Appeal.
Exclusion and objection
1. Before a decision is taken by a Board of Appeal pursuant to Article 169(4) of Regulation (EU) 2017/1001, the chairperson or member concerned shall be invited to present comments as to whether there is a reason for exclusion or objection.
2. Where the Board of Appeal obtains knowledge, from a source other than the member concerned or a party to the proceedings, of a possible reason for exclusion or objection under Article 169(3) of Regulation (EU) 2017/1001, the procedure laid down in Article 169(4) of Regulation (EU) 2017/1001 shall be applied.
3. The proceedings concerned shall be suspended until a decision is taken on the action to be taken pursuant to Article 169(4) of Regulation (EU) 2017/1001.
Grand Board
1. The list comprising the names of all members of the Boards of Appeal other than the President of the Boards of Appeal and the chairpersons of the Boards of Appeal for the purposes of drawing in rotation the members of the Grand Board referred to in Article 167(2) of Regulation (EU) 2017/1001 shall be drawn up in the order of seniority determined in accordance with Article 43(1) of this Regulation. Where an appeal has been referred to the Grand Board pursuant to Article 165(3)(b) of Regulation (EU) 2017/1001, the Grand Board shall comprise the rapporteur designated prior to the referral.
2. Article 40 shall apply to the President of the Boards of Appeal acting in the capacity of chairperson of the Grand Board. Article 41 shall apply to the rapporteur to the Grand Board.
3. Where the President of the Boards of Appeal is prevented from acting as chairperson of the Grand Board, the President of the Boards of Appeal shall be replaced in that function and, as the case may be, as rapporteur to the Grand Board, on the basis of seniority as determined in accordance with Article 43(1), by the most senior chairperson of the Boards of Appeal. Where a member of the Grand Board is prevented from acting, that member shall be replaced by another member of the Boards of Appeal to be designated pursuant to Article 167(2) of Regulation (EU) 2017/1001 and paragraph 1 of this Article. Article 43(4) and (5) of this Regulation shall apply mutatis mutandis .
4. The Grand Board shall not deliberate or vote on cases, and oral proceedings shall not take place before the Grand Board unless seven of its members are present, including its chairperson and the rapporteur.
5. Article 39(1) to (5) shall apply to the deliberations and voting of the Grand Board. In the event of a tie, the vote of the chairperson shall be decisive.
6. Article 32 shall apply to decisions of the Grand Board and mutatis mutandis to its reasoned opinions within the meaning of Article 157(4)(l) of Regulation (EU) 2017/1001.
Presidium of the Boards of Appeal
1. The Presidium of the Boards of Appeal shall have the following duties:
(a)
decide on the constitution of Boards of Appeal;
(b)
determine the objective criteria for the allocation of appeal cases to the Boards of Appeal and rule on any conflict as regards the application thereof;
(c)
upon proposal of the President of the Boards of Appeal, establish the Boards of Appeal's expenditure requirements with a view to drawing up the Office's expenditure estimates;
(d)
lay down its internal rules;
(e)
lay down rules for the processing of excluding and objecting to members pursuant to Article 169 of Regulation (EU) 2017/1001;
(f)
lay down the working instructions for the Registry;
(g)
take any other measure for the purpose of exercising its functions of laying down the rules and of organising the work of the Boards of Appeal pursuant to Article 165(3)(a) and Article 166(4)(a) of Regulation (EU) 2017/1001.
2. The Presidium may validly deliberate only if at least two thirds of its members, including the chairperson of the Presidium and half of the chairpersons of the Boards of Appeal, rounded up if necessary, are present. Decisions of the Presidium shall be taken by a majority vote. In the event of a tie, the vote of the chairperson shall be decisive.
3. The decisions adopted by the Presidium pursuant to Article 43(1), to Article 45(1), and to paragraph 1(a) and (b) of this Article shall be published in the Official Journal of the Office.
President of the Boards of Appeal
1. Where the President of the Boards of Appeal is prevented from acting within the meaning of Article 43(4), the managerial and organisational functions conferred upon the President of the Boards of Appeal by Article 166(4) of Regulation (EU) 2017/1001 shall be exercised, on the basis of seniority as determined in accordance with Article 43(1) of this Regulation, by the most senior chairperson of the Boards of Appeal.
2. Where the post of the President of the Boards of Appeal is vacant, the functions of that president shall be exercised ad interim , on the basis of seniority as determined in accordance with Article 43(1), by the most senior chairperson of the Boards of Appeal.
Applicability to appeal proceedings of provisions relating to other proceedings
Unless otherwise provided in this title, the provisions relating to proceedings before the instance of the Office which adopted the decision subject to appeal shall be applicable to appeal proceedings mutatis mutandis .
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
