32Third, contrary to what the Office maintains, the Board of Appeal's obligation to conduct an examination of the decision under appeal, even if a specific ground has not been raised by the party concerned, is not contrary to the rule laid down in Article 74(1) in fine of Regulation No 40/94, according to which, in inter partes proceedings, the Office's departments, including Boards of Appeal, are restricted in their examination to the facts, evidence and arguments provided by the parties. In the light of the different language versions of that provision, the Court finds that it limits the examination conducted by the Office in two ways. On the one hand, it refers to the factual basis of the Office's decisions, that is to say, the facts and evidence on the basis of which they may validly be based (Case T-232/00 Chef Revival USA v OHIM — Massagué Marin (Chef) [2002] II-2749, paragraph 45); on the other hand, it refers to the legal basis of those decisions, that is to say, the provisions which the department hearing the application is bound to apply. Thus, the Board of Appeal, in ruling on an appeal against a decision to terminate an opposition procedure, can base its decision only on the relative grounds for refusal on which the party concerned relied and on the related facts and evidence produced by that party. However, such a limitation of the legal and factual basis of the examination conducted by the Board of Appeal is compatible with the principle that the extent of the examination which the Board of Appeal is required to conduct in regard to the decision under appeal does not depend upon whether or not the party bringing the appeal has raised a specific ground of appeal criticising the interpretation or application of a provision by the department which heard the application at first instance, or upon that department's assessment of a piece of evidence. It follows from the principle of continuity of functions that, within the scope of Article 74(1) in fine of Regulation No 40/94, the Board of Appeal is required to base its decision on all the matters of fact and of law which the party concerned introduced either in the proceedings before the department which heard the application at first instance or, subject only to Article 74(2), in the appeal.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.