1. 

This appeal essentially concerns the legal basis that enables the Boards of Appeal of the European Union Intellectual Property Office (EUIPO) to revoke their own decisions.

2. 

The dispute arose when the association repowermap.org (‘repowermap’) sought to have a European Union trade mark (‘REPOWER’), of which another undertaking (Repower AG) was the proprietor, declared invalid in respect of all the goods and services covered by the application for registration.

3. 

At the end of the administrative proceedings, the Fifth Board of Appeal of EUIPO, by decision of 8 February 2016, partially upheld the application for a declaration of invalidity of the mark. ( 2 ) After repowermap contested that decision before the General Court, ( 3 ) the Board of Appeal revoked it (on 3 August 2016) on the grounds that it contained an inadequate statement of reasons.

4. 

Repower AG then brought an action contesting the decision of 3 August 2016 before the General Court, which dismissed that action by judgment of 21 February 2018, which is now the subject of this appeal.

5.

The proceedings are governed ratione temporis by Regulation (EC) No 207/2009 in its original version; that regulation was amended in 2015 ( 5 ) and later replaced by Regulation (EU) 2017/1001. ( 6 )

6.

Article 80 of Regulation No 207/2009 provides:

‘1.   Where the Office has made an entry in the Register or taken a decision which contains an obvious procedural error attributable to the Office, it shall ensure that the entry is cancelled or the decision is revoked. Where there is only one party to the proceedings and the entry or the act affects its rights, cancellation or revocation shall be determined even if the error was not evident to the party.

2.   Cancellation or revocation as referred to in paragraph 1 shall be determined, ex officio or at the request of one of the parties to the proceedings, by the department which made the entry or took the decision. Cancellation or revocation shall be determined within six months from the date on which the entry was made in the Register or the decision was taken, after consultation with the parties to the proceedings and any proprietor of rights to the Community trade mark in question that are entered in the Register.

3.   This Article shall be without prejudice to the right of the parties to submit an appeal under Articles 58 and 65, or to the possibility, under the procedures and conditions laid down by the Implementing Regulation, of correcting any linguistic errors or errors of transcription and obvious errors in the Office’s decisions or errors attributable to the Office in registering the trade mark or in publishing its registration.’

7.

Article 83 of Regulation No 207/2009 reads:

‘In the absence of procedural provisions in this Regulation, the Implementing Regulation, the fees regulations or the rules of procedure of the Boards of Appeal, the Office shall take into account the principles of procedural law generally recognised in the Member States.’

8.

Repower AG is the proprietor of the EU word mark ‘REPOWER’, registered for goods and services in classes 4, 9, 37, 39, 40 and 42 of the Nice Agreement. ( 7 ) Those categories of goods and services include or relate to, inter alia, electrical energy, its production, and other technical aspects.

9.

On 3 June 2013, repowermap applied for a declaration of invalidity of the mark REPOWER, arguing that it was a descriptive sign and was devoid of distinctive character in respect of all the goods and services for which it had been registered. ( 8 )

10.

By decision of 9 July 2014, the Cancellation Division of EUIPO:

11.

Repowermap appealed against the decision of the Cancellation Division to the Board of Appeal, which dismissed the appeal by decision of 8 February 2016. According to the Cancellation Division, the sign was not descriptive and repowermap had failed to adduce evidence that the sign was usual in relation to the goods and services at issue.

12.

On 26 April 2016, repowermap brought an action before the General Court for annulment of the Board of Appeal’s decision of 8 February 2016 (Case T‑188/16).

13.

While Case T‑188/16 was pending before the General Court, the Board of Appeal decided, on 3 August 2016, ( 11 ) to revoke the decision of 8 February 2016. It justified the revocation of the decision on the basis of the ‘inadequate statement of reasons [in the decision of 8 February 2016]’ in relation to the goods and services, which constituted ‘an obvious procedural error for the purposes of Article 80 of Regulation No 207/2009’. The Board of Appeal further stated that it would give a fresh decision in due course, ( 12 ) which it did on 26 September 2016. ( 13 )

14.

Repower AG brought an action before the General Court on 10 October 2016 against the Board of Appeal’s decision of 3 August 2016, relying on four pleas for annulment of the decision: (i) the decision lacks a legal basis; (ii) the Board of Appeal has no power to revoke its own decisions; (iii) infringement of Article 80 of Regulation No 207/2009, of EUIPO’s Guidelines for Examination and of the principles of sound administration, of legal certainty and the force of res judicata; and (iv) the decision contains an inadequate statement of reasons.

15.

For our purposes here, I should point out that Repower AG put forward the following arguments in its action before the General Court:

16.

By judgment of 21 February 2018, ( 15 ) the General Court dismissed the four pleas for annulment and, accordingly, the action brought by Repower AG.

17.

The General Court accepted the claim that an inadequate statement of reasons could not be classified as a procedural error. It deduced from an earlier judgment ( 16 ) that ‘the statement of reasons in a decision affects the actual substance of that decision and that an inadequate statement of reasons cannot be regarded as a procedural error within the meaning of Article 80(1) of Regulation No 207/2009’. Therefore, the Board of Appeal ‘was not entitled to base the contested decision on Article 80(1) of Regulation No 207/2009’. ( 17 )

18.

Having set down that proposition, the General Court stated that ‘the Boards of Appeal may, in principle, rely upon the general principle of law that permits the withdrawal of an unlawful administrative act in order to withdraw their decisions’. ( 18 ) The General Court took the view that the existence of a specific provision (Article 80(1) of Regulation No 207/2009) did not preclude the application of that principle, irrespective of that provision.

19.

In support of that assertion, the General Court again relied on two of its own earlier judgments, ( 19 ) from which it inferred that, ‘even where the legislature has regulated the procedure for withdrawing the acts of an institution, that institution may withdraw an act on the basis of the general principle of law permitting the withdrawal of unlawful administrative acts subject to compliance with certain conditions [respect for a reasonable time limit and the legitimate expectations of the beneficiary]’. ( 20 )

20.

The General Court held that the concept of an ‘obvious procedural error’ is not defined in any of the regulations referred to in Article 80(1) of Regulation No 207/2009 and that that provision ‘is not without ambiguity and is therefore not sufficiently clear to exclude the application of Article 83 of Regulation No 207/2009’. ( 21 )

21.

After that, the General Court focused its analysis on the conditions for application of the general principle of law referred to above and went on to find ( 22 ) that:

22.

The General Court disagreed that the principle of revocation was incompatible with the principles of sound administration, of legal certainty and of res judicata. First, it is lawful and in the interest of sound administrative management to correct the errors and omissions in a decision. Second, since that must occur within a reasonable time, the right of the person concerned to rely on the lawfulness of the measure is respected. Finally, decisions of the Boards of Appeal, which are not judicial but administrative in nature, do not have the force of res judicata. ( 24 )

23.

Repower AG lodged its appeal with the Registry of the Court of Justice on 24 April 2018. EUIPO and repowermap lodged their defences on 25 July 2018 and 17 August 2018, respectively.

24.

Repower AG claims that the Court should set aside the judgment under appeal and order EUIPO to pay the costs. EUIPO and repowermap claim that the Court should dismiss the appeal and order the appellant to pay the costs.

25.

A hearing was held on 14 March 2019, at which oral argument was presented by Repower AG, EUIPO and repowermap.

26.

Although Repower AG has relied on five grounds of appeal, the Court has asked the Advocate General to focus his analysis on the second and third grounds, ( 25 ) in which that company alleges:

27.

Although this changes the traditional methodology for examining appeals, I believe that, here, it may result in greater clarity if, before considering each of the two grounds, I set out, by way of introduction, a number of observations on the subject of debate.

28.

The term ‘revocation’ in its broadest sense denotes two legally distinct concepts which may affect administrative acts the tenor of which is favourable to the person concerned:

29.

The revocation at issue in this case comes within the second of the two categories mentioned: it is, in fact, an ex officio review which an EU body (a Board of Appeal) performs unilaterally in relation to an act which it adopted and which it later considers to be vitiated by an error which renders the act unlawful.

30.

The early case-law ( 28 ) of the Court described the principle now at issue as a general principle common to the administrative law of the six Member States of the then European Economic Community. The formulation of that principle may be summarised by these words from the judgment in Compte v Parliament: ‘any Community institution which finds that a measure which it has just adopted is tainted by illegality has the right to withdraw it within a reasonable period …’, although ‘retroactive withdrawal of a favourable administrative act is generally subject to very strict conditions’. ( 29 )

31.

Subsequently, the principle has been applied in areas as diverse as the Staff Regulations of officials and staff employed by the EU institutions, ( 30 ) contributions from the EAGGF, ( 31 ) the fixing of production quotas for steel products within the framework of the ECSC Treaty, ( 32 ) and the fixing of Community subsidies in the oil seed sector, ( 33 ) among others.

32.

I shall not discuss here the question of whether or not that principle has the constitutional status acquired by other principles, such as those of equal treatment ( 34 ) and of legal certainty, ( 35 ) with which the revocation of final acts is innately at odds. Suffice it to note that the former must be applied with the intention of reconciling legal certainty (as reflected by the legitimate expectation of the beneficiary of the act in its appearance of validity) with the principle of legality, that is, the Union’s interest in the proper functioning of its institutions and agencies. ( 36 )

33.

In exercising its power of revocation on grounds of illegality, the public authority sacrifices part of the individual’s legal certainty in the general interest, which requires an administrative act that is legally devoid of defects. This means that the required precautions must be taken where it is necessary to adversely affect the legal position of a person who was previously the beneficiary of a favourable act of the administrative authorities, which granted that person an individual right. ( 37 )

34.

It is clear from the foregoing that the EU legislature is entitled to modify the application of the principle of revocation of unlawful administrative acts the tenor of which is favourable to the persons concerned. It can, therefore, set limits by which the EU institutions must be bound in this area, especially where this is to safeguard legal certainty. That limitation is particularly important in inter partes proceedings because, given the conflicting views of the persons concerned, decisions on revocation adopted by the administrative authorities will be detrimental to some individuals while at the same time benefiting others, thereby affecting the legal position of those who already had a decision favourable to their interests.

35.

I believe, therefore, that it is open to the EU legislature to specify which type of (procedural and substantive) defects must occur, and to what extent, in order for revocation to be permitted. At the hearing, EUIPO and repowermap denied the existence of that power, arguing that the general principle enabling the revocation of unlawful administrative acts is unlimited whatever the circumstances.

36.

I am not persuaded by that argument, which actually disregards the fact that, even as it is currently worded, the reference in Article 80(1) of Regulation No 207/2009 to obvious errors reduces the scope of that principle. If it were an absolute principle, the EU legislature would simply not be able to restrict its application in a provision of secondary law, for the unlawfulness of an act is not conditional on whether or not the defect by which it is tainted is obvious.

37.

In EU trade mark law, the tension between revocation and legal certainty is reflected in Article 80(1) and Article 83 of Regulation No 207/2009.

38.

In the case of Article 80, the legislature considered it appropriate to limit the situations in which the departments of EUIPO are entitled to revoke their own decisions: this is possible only if a decision ‘contains an obvious procedural error’.

39.

In the case of Article 83, the legislature accepted that, ‘in the absence of procedural provisions in this Regulation [or in other regulations adopted pursuant to the regulation], the Office [may] take into account the principles of procedural law generally recognised in the Member States’.

40.

Although I shall return later to the interpretation of both articles in the judgment under appeal, I wish to state now that I find no ambiguity in Article 80(1) of Regulation Noo 207/2009. The expression ‘obvious procedural error’ ( 38 ) must, like all legal expressions, be interpreted in order to establish whether an obvious (and serious) error has occurred within a procedure. However, aside from that interpretative task, which is common to the application of all legal rules, I can see no ambiguity in the provision.

41.

Nor do I believe that that article contains a legal ‘gap’, and not just because it is governed by the maxim inclusio unius, exclusio alterius. To my mind, what Article 80(1) of Regulation No 207/2009 contains is an explicit limitation of the power of revocation, which it confines to procedural, and not substantive, errors. If the legislature had wished to widen the power of revocation to include substantive errors, it would undoubtedly have made that clear. The EU judicature would be supplanting the role of the legislature if it were to declare, in the light of a provision worded in that way, that the power of revocation may be extended to fill that alleged gap.

42.

From a theoretical perspective, it is debatable whether the Boards of Appeal are vested with the power to revoke their own decisions where an action is pending against such a decision before the General Court. Despite their administrative nature, there is a certain consensus regarding the quasi-judicial role ( 39 ) of boards of appeal in general and the Boards of Appeal of EUIPO in particular. ( 40 ) It would be possible to apply to them, by analogy, the same criterion which applies to courts in the strict sense: courts cannot revoke their judgments of their own motion, even if they subsequently identify procedural or substantive errors in those judgments.

43.

From that point of view (which, I stress, is rather theoretical), decisions of the Boards of Appeal can only be set aside using the ordinary procedure which the EU legislature created for reviewing acts of EU institutions and agencies: that is, by means of an action for annulment before the General Court, as referred to in Article 65 of Regulation No 207/2009. ( 41 )

44.

However, that matter is also entrusted to the legislative discretion of the EU legislature. In the context of that discretion, the legislature could have prohibited Boards of Appeal from revoking their own decisions where these are sub judice or, equally, it could have permitted them to do so.

45.

Against that background, it must be acknowledged that, where Article 80(1) of Regulation No 207/2009 refers to decisions containing an obvious procedural error, it does not differentiate between decisions given by the different departments of EUIPO, which include the Boards of Appeal. Neither the procedural rules of the Boards of Appeal ( 42 ) nor the implementing rules in force at the material time contain a derogation in that regard. ( 43 )

46.

Repower AG claims that the General Court relied on the general principle that unlawful administrative acts may be revoked in order to uphold the contested decision. In Repower AG’s submission, Article 83 of Regulation No 207/2009 is a lex specialis which authorises EUIPO to use the general principles recognised in that regard in the Member States if there is a legal gap in the regulation. It further submits that that article permits reliance only on principles common to the Member States, not on general principles of EU law.

47.

Repower AG contends that Article 80 of Regulation No 207/2009 does not contain any legal gaps: it lays down a derogation from the rule that decisions are irrevocable, such that it empowers EUIPO to revoke a decision only where it contains an obvious procedural error. If that power were extended to other kinds of defect, Article 80 would be rendered meaningless because the legislature did not intend such defects to be covered by the derogation.

48.

Repower AG also complains that the General Court cites judgments on the revocation of decisions of the Commission relating to State aid ( 44 ) and collusion between undertakings, ( 45 ) which refer to provisions not included in Regulation No 207/2009.

49.

Lastly, Repower AG submits that, from a systematic point of view, only Article 61 of Regulation No 207/2009 provides for the revocation of an act by a department of EUIPO whose decision is the subject of an appeal before the Boards of Appeal in ex parte proceedings. It concludes from this that, in the absence of a similar provision governing the review of inter partes cases, the legislature intended that an action for annulment brought before the General Court would preclude the possibility that decisions of the Boards of Appeal could be revoked ex officio.

50.

EUIPO and repowermap claim primarily that this ground of appeal is inadmissible because it merely repeats the arguments put forward at first instance to the effect that there is no legal gap in Regulation No 207/2009, without clearly identifying the error of law committed by the General Court.

51.

In the alternative, as regards the substance, EUIPO takes issue with Repower AG regarding the relevance of the judgments concerning the Commission’s power to revoke its own decisions. That case-law is merely an expression of the general principle that unlawful administrative acts which create individual rights may be revoked. The conditions to which revocation must be made subject (compliance with a reasonable time limit and the legitimate expectations of the beneficiary) were fulfilled in the case before the Court.

52.

Repowermap contends that there has been no explanation in the appeal of the extent to which the difference between the subject areas (State aid/trade mark law) has a bearing on the conditions for application of the principle that administrative decisions may be revoked.

53.

Pursuant to Article 169(2) of the Rules of Procedure of the Court of Justice, ‘the pleas in law and legal arguments relied on shall identify precisely those points in the grounds of the decision of the General Court which are contested’.

54.

Although there is no need to be excessively formalistic when applying that rule, nor can it be ignored. In relation to EU trade marks, the Court of Justice has explained that where the appellant is contesting the General Court’s interpretation or application of EU law, the legal arguments examined at first instance may be discussed again on appeal. ( 46 )

55.

Since Repower AG pleaded the infringement of Article 80 of Regulation No 207/2009 before the General Court and its plea for annulment in that connection was dismissed in the judgment, there is nothing unusual about the fact that the arguments submitted at first instance have also been put forward on appeal, this time to dispute the associated line of reasoning of the General Court.

56.

It is impossible to overlook the fact that Repower AG, which is required to identify precisely the contested elements of the judgment under appeal, has not explained at points 31 to 41 of its appeal, relating to the second ground of appeal, the specific paragraphs or sections of the judgment with which it takes issue. Repower AG has therefore failed to fulfil the requirement in Article 169(2) of the Rules of Procedure of the Court of Justice, and the case-law interpreting it, to the effect that an appeal must indicate specifically the contested elements of the judgment which the appellant seeks to have set aside. ( 47 )

57.

It is true that, at the hearing, in response to a question from the [Court], Repower AG clarified that the second ground of appeal related to paragraphs 65 and 66 of the judgment under appeal. If it overlooks the fact that that clarification is out of time, the Court could rule the ground admissible by interpreting its own case-law less strictly. Nevertheless, the other parties and the Court have been able to identify, particularly in the oral stage of the proceedings, the contested points on which the second plea in law is based.

58.

In short, from the point of view of procedural orthodoxy, and following the case-law to the letter, the second ground of appeal should be ruled inadmissible. However, in case the Court of Justice does not take that view, I shall give my opinion on the errors of law which that ground of appeal alleges (without due rigour) vitiate the judgment under appeal.

59.

Repower AG submits ( 48 ) that the legislature did not provide for Boards of Appeal to have the power to review their own acts ex officio, a submission it repeats in the third ground of appeal. ( 49 ) For the reasons I set out above, I do not believe that its argument on this point can be upheld.

60.

On the other hand, the second ground of appeal could succeed if it is shown that the General Court should have confined itself to applying Article 80 of Regulation No 207/2009.

61.

As I pointed out in the preliminary considerations, I agree with Repower AG that, in Article 80(1) of Regulation No 207/2009, the EU legislature decided to limit the grounds for revocation on which EUIPO may rely to cases of ‘obvious procedural error’.

62.

That decision, clearly expressed in the provision, is a demonstration of the legislature’s power to modify, including to limit, reliance on the principle of revocation by EU institutions and agencies. ( 50 ) EUIPO and the judicial bodies which review its actions are therefore bound by it.

63.

Article 80(1) of Regulation No 207/2009 is, I believe, a self-sufficient provision, in the sense that it sets the boundaries of the power of revocation. It is therefore necessary to remain within those boundaries when establishing that the grounds for revocation excluded therefrom (for example, substantive errors) may be reinstated, either under the general principle or under Article 83 of that regulation. The latter provision applies only in the absence of other provisions of the regulation (or of other regulations adopted pursuant thereto), and no such absence is clear in this case.

64.

That being so, I disagree with the General Court’s reliance on a number of its own judgments ( 51 ) to support the similarity between that situation and the situation referred to in Article 9 of Regulation (EC) No 659/1999. ( 52 ) In those judgments, the General Court found that the Commission was entitled to revoke its unlawful acts in all circumstances (subject to certain conditions relating to the time limit and the legitimate expectations of the addressees of the acts), notwithstanding Article 9 of Regulation No 659/1999.

65.

While there is no need for me to state my position now on the interpretation of Article 9 of Regulation No 659/1999, suffice it to observe that Article 80(1) of Regulation No 207/2009 has a very different legal structure from that article. To my mind, Article 9 of Regulation No 659/1999 refers to a specific situation (the provision of incorrect information by the parties) which does not exclude other grounds for revocation. On the other hand, Article 80(1) exhausts, so to speak, the matter in that it authorises revocation only in the event of an obvious procedural error.

66.

The difference in legislative structure between the two provisions suggests that, in theory, the principle of revocation of unlawful acts is generally applicable beyond the scope of Article 9 of Regulation No 659/1999, but not in relation to Article 80(1) of Regulation No 207/2009.

67.

The second ground of appeal should therefore be upheld in this respect. However, that does not automatically lead to the annulment of the judgment under appeal if, nevertheless, the General Court correctly categorised the error affecting the Board of Appeal’s first decision. I shall now state, therefore, that, to my mind, the General Court also erred in that categorisation.

68.

In the judgment under appeal, the General Court, again citing another of its own judgments, ( 53 ) observed that ‘the statement of reasons in a decision affects the actual substance of that decision and that an inadequate statement of reasons cannot be regarded as a procedural error within the meaning of Article 80(1) of Regulation No 207/2009’. ( 54 ) On that basis, the General Court annulled the assessment of the Board of Appeal, which had categorised the insufficient reasoning in its first decision as a procedural error. ( 55 )

69.

I believe that that proposition is legally incorrect and that the Board of Appeal was right to classify the inadequate statement of reasons as a procedural error.

70.

According to the settled case-law of the Court of Justice, ‘the obligation to state reasons provided for in Article 296 TFEU constitutes an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue’. ( 56 )

71.

If the obligation to provide a statement of reasons for an act is breached (because the reasoning is non-existent or inadequate, where such inadequacy is significant), that act will be vitiated by a formal or procedural error but not by a substantive error. A statement of reasons is an ‘essential procedural requirement’; ( 57 ) in other words, it is a vital part of the procedure leading to the adoption of the final decision and its external configuration. On the other hand, the determination of whether the reasons set out in the decision are legally correct takes place during the debate concerning the substance, that is to say, during the review of the substantive legality of that act.

72.

The question whether the duty to state reasons has been satisfied must be assessed with reference not only to the wording of the measure but also to its context and the whole body of legal rules governing the matter in question. ( 58 ) The examination of the statement of reasons is carried out on a strictly case-by-case basis, such that, by reference to the context and scope of the decision, an exercise of a similar intensity can be classified as an adequate, inadequate or non-existent statement of reasons, depending on the circumstances.

73.

It is apparent from the letter of 22 June 2016 sent to the parties by the Board of Appeal that, ‘further to the action brought before the General Court of the European Union’ (this refers to the action brought by repowermap which gave rise to Case T‑188/16, now stayed), the Board had found that its statement of reasons was inadequate for the purposes of Article 75 of Regulation No 207/2009.

74.

At points 94 and 95 of its application to the General Court, repowermap complained that the decision of the Board of Appeal (which was later revoked) did not contain a single paragraph, or even a sentence, examining the reasons why the contested sign was not descriptive of the goods and services concerned. Following those assertions, I repeat, the Board of Appeal revoked its decision of 8 February 2016.

75.

Accordingly, the error identified by the Board of Appeal concerned the inadequate statement of reasons in its decision of 8 February 2016. This, as the Board later rightly found, could be classified as a procedural error. In fact, neither party disputes the inadequacy of the statement of reasons or the obvious nature of that defect, for the purposes of Article 80(1) of Regulation No 207/2009.

76.

In those circumstances, I believe that the General Court infringed Article 80(1) of Regulation No 207/2009 by declaring, in paragraph 59 of the judgment under appeal, that the Board of Appeal was not entitled to base the contested decision on that provision.

77.

It is settled case-law that, ‘if the grounds of a decision of the General Court contain an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not one that should cause that decision to be set aside, and a substitution of grounds must be made’. ( 59 ) That infringement does, however, result in a lack of legal basis, and, therefore, the subsequent arguments on which the judgment is based are ineffective. ( 60 )

78.

In this case, the General Court ultimately, albeit based on arguments which, to my mind, are incorrect, upheld the decision on revocation given by the Board of Appeal on 3 August 2016. Since it is my belief that revocation of the decision complied with Article 80(1) of Regulation No 207/2009, the associated arguments on which the judgment is based should be replaced by others which support the finding of an obvious procedural error, on which the Board of Appeal relied to revoke its decision of 8 February 2016.

79.

Repower AG complains that the General Court reversed, and therefore infringed, the rules governing the burden of proof when applying Article 83 of Regulation No 207/2009. Repower AG submits that, since EUIPO relied on the general principle that unlawful administrative acts may be revoked, it was for that body to prove the existence of such a principle in all the Member States. Contrary to the General Court’s assertion, Repower AG could not be required to provide details about any Member State which did not recognise that principle.

80.

Repower AG contends that Article 83 of Regulation No 207/2009 refers only to the procedural rules of Member States in relation to trade marks. There is no principle common to the Member States which provides that it is possible for national trade mark offices to revoke their own decisions.

81.

EUIPO and repowermap contend that the third ground of appeal is the result of an incorrect interpretation of the judgment under appeal and that the General Court did not reverse the burden of proof. It merely pointed out that the principle that unlawful administrative acts may be revoked was common to the Member States, as acknowledged by the Court of Justice since its first judgments and constantly restated in decisions of the EU Courts. In that connection, the judgment under appeal criticised Repower AG for failing to adduce any evidence that that principle does not exist in the legal systems of some Member States.

82.

Repowermap further contends that the function of a general legal principle is to act as a criterion for interpretation and to correct the undesirable effects of provisions, and therefore the fact that it is enshrined in case-law makes it unnecessary to adduce evidence of such a principle.

83.

At the hearing, it was discussed whether the General Court had directly applied the general principle that unlawful administrative acts may be revoked or whether it had done so through Article 83 of Regulation No 207/2009.

84.

The uncertainty arises as a result of the wording of the last sentence of paragraph 66 of the judgment under appeal, one of the few in which the General Court refers to Article 83. That sentence states, in particular, that, ‘given that the concept of an obvious procedural error is not defined in the aforementioned regulations, Article 80(1) of Regulation No 207/2009 … is not without ambiguity and is therefore not sufficiently clear to exclude the application of Article 83 of Regulation No 207/2009’.

85.

In my view, it may be inferred from paragraphs 62 to 65 of the judgment under appeal that the General Court wished to apply directly the general principle that unlawful acts may be revoked after finding that there was a gap in Article 80 of Regulation No 207/2009. I believe that that is the true rationale of the judgment and that paragraph 66 thereof includes only a hypothetical reference to Article 83. In truth, the only paragraph (number 93) of the judgment which deals specifically with that provision is a response to an additional submission by the applicant, not the central argument for dismissal of its action.

86.

In that connection, the reference by the General Court to Article 83 of Regulation No 207/2009 is made for the sake of completeness, not as the ratio decidendi of the judgment. It follows that the third ground of appeal should be classified as ineffective in accordance with settled case-law, since, if it were upheld, it could not lead to the setting aside of the judgment under appeal. ( 61 )

87.

However, in case the Court does not agree with that assessment, I shall state my position on the substance of the ground of appeal in the alternative.

88.

According to the General Court, Repower AG submitted that ‘EUIPO was required to disclose the general principles of national law based on the principles applicable in all Member States without exception’. ( 62 )

89.

The General Court dismissed that argument on the grounds that the principle that unlawful acts may be revoked was common to all the Member States, as indicated in the first judgments of the Court of Justice ( 63 ) and subsequently confirmed by the Court of Justice and the General Court. ( 64 )

90.

If the proposition regarding the application of Article 83 was accepted, which was appropriate in these proceedings once the application of Article 80 of Regulation No 207/2009 had been ruled out, it was not [necessary] to establish the definition of the principle that unlawful acts may be revoked in general or its treatment in case-law but rather to interpret Article 83 of Regulation No 207/2009, in accordance with which, in the absence of procedural provisions in that regulation, ‘the Office shall take into account the principles of procedural law generally recognised in the Member States’. ( 65 )

91.

In other words, having accepted that there is a gap (quod non) in Article 80 of Regulation No 207/2009, it was necessary to determine whether the principle referred to applied to the revocation of decisions of national trade mark offices (including Boards of Appeal) under national laws, and under what conditions. That was a matter for EUIPO to determine.

92.

The General Court criticised Repower AG for ‘not provid[ing] a single example of a Member State in which that principle is not recognised’. ( 66 ) However, in reality, it was EUIPO from which the General Court should have required evidence in that specific regard (rather than in general), in order to establish the terms under which the laws of the Member States permitted their national trade mark offices to revoke their own decisions.

93.

In summary, if my assessment that it is ineffective is not accepted, then this ground of appeal must be upheld.

94.

The only possible consequence of that finding would be the referral of the case back to the General Court, given that, in support of its argument in favour of the revocation of the decision by the Board of Appeal, EUIPO did not rely at any point ( 67 ) on Article 83 of Regulation No 207/2009.

95.

In those circumstances, the General Court should grant EUIPO a time limit within which to adduce evidence of how the principle that decisions adopted by trade mark offices may be revoked is applied in the legal systems of the Member States. ( 68 )

96.

Given that this Opinion is concerned with only two of the five grounds of appeal, I am unable to state my position on costs, which would be appropriate (under Article 184(2) of the Rules of Procedure of the Court of Justice) if the appeal brought by Repower AG were unfounded in its entirety.

97.

In the light of the foregoing considerations, I propose that the Court should: