Judgment_paragraph 10 · Repower AG v European Union Intellectual Property Office (T-727/16)

10The applicant submitted its observations on 5 July 2016. It maintained, in essence, that, until such time as the operative part of the decision of 8 February 2016 was amended, it was possible to substantiate the reasons for it, in accordance with the conditions in Article 83 of Regulation No 207/2009 (now Article 107 of Regulation 2017/1001), under which, in the absence of procedural provisions in Regulation No 207/2009, Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1) (repealed by Commission Delegated Regulation (EU) 2017/1430 of 18 May 2017 supplementing Regulation (EC) No 207/2009 and repealing Commission Regulations No 2868/95 and (EC) No 216/96 (OJ 2017 L 205, p. 1)), Commission Regulation (EC) No 2869/95 of 13 December 1995 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ 1995 L 303, p. 1) (repealed by Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 amending Regulation No 207/2009 and Regulation (EC) No 2868/95 and repealing Regulation No 2869/95 (OJ 2015 L 341, p. 21)), or Commission Regulation (EC) No 216/96 of 5 February 1996, laying down the rules of procedure of the Boards of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ 1996 L 28, p. 11), as amended by Commission Regulation (EC) No 2082/2004 of 6 December 2004 (OJ 2004 L 360, p. 8) (repealed by Delegated Regulation 2017/1430), EUIPO is to take into account the principles of procedural law generally recognised in the Member States. However, the applicant considered that it was not possible to revoke the decision of 8 February 2016 on the basis of Article 80 of Regulation No 207/2009, which did not exist, or no longer existed, in the consolidated version of Regulation No 207/2009 published online in the EUR-Lex database, since that article conferred power only on the examiners of EUIPO and since an inadequate statement of reasons did not amount to a procedural error for the purposes of Article 80 of Regulation No 207/2009. Finally, the applicant claimed that it was apparent from the decision of the Grand Board of Appeal of EUIPO of 28 April 2009 (Case R 323/2008-G) (‘the decision of the Grand Board of Appeal’) that a decision of EUIPO against which an appeal was pending before the General Court could not be revoked.