Repower AG v European Union Intellectual Property Office (C-281/18 P)

Contents

Judgment of the Court (Second Chamber)31 October 2019^note(Appeal — EU trade mark — Invalidity proceedings — Revocation of the Board of Appeal’s original decision partially rejecting the application for a declaration of invalidity of the EU word mark REPOWER)In Case C‑281/18 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 April 2018,Repower AG, established in Brusio (Switzerland), represented by R. Kunz-Hallstein, H.P. Kunz-Hallstein and V. Kling, Rechtsanwälte,the other parties to the proceedings being:European Union Intellectual Property Office (EUIPO), represented by D. Botis and J.F. Crespo Carrillo, acting as Agents,repowermap.org, established in Berne (Switzerland), represented by P. González-Bueno Catalán de Ocón, abogado,THE COURT (Second Chamber),composed of K. Lenaerts, President of the Court, acting as President of the Second Chamber, T. von Danwitz and C. Vajda (Rapporteur), Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: V. Giacobbo-Peyronnel, Administrator,having regard to the written procedure and further to the hearing on 14 March 2019,after hearing the Opinion of the Advocate General at the sitting on 16 May 2019,gives the following

Judgment

1By its appeal, Repower AG asks the Court of Justice to set aside the judgment of the General Court of the European Union of 21 February 2018, Repower v EUIPO – repowermap.org (REPOWER) (T‑727/16, EU:T:2018:88) (‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 3 August 2016 (Case R 2311/2014-5 (REV)), relating to invalidity proceedings between repowermap.org and Repower (‘the contested decision’).

Legal context

2Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1) was amended by Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 (OJ 2015 L 341, p. 21), which entered into force on 23 March 2016. Since the contested decision was adopted on 3 August 2016, the provisions of Regulation No 207/2009, as amended by Regulation 2015/2424, are applicable to it.

3Regulation No 207/2009, as amended by Regulation 2015/2424, includes a Title IX, entitled ‘Procedure’. That title contains a Section I, entitled ‘General provisions’, consisting of Articles 75 to 84 of that regulation. Article 4 of Regulation 2015/2424 provides that certain provisions of Regulation No 207/2009 are to be applicable only from 1 October 2017. Article 75, Article 80(1) and (2) and Article 83 of Regulation No 207/2009 figure amongst those provisions. In the present case, in the light of the date on which the contested decision was adopted, Article 75, Article 80(1) and (2) and Article 83 of Regulation No 207/2009 remain applicable to that decision in their original version.

4According to Article 75 of Regulation No 207/2009, entitled ‘Statement of reasons on which decisions are based’:‘Decisions of the Office shall state the reasons on which they are based. They shall be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments.’

5Article 80 of Regulation No 207/2009, entitled ‘Revocation of decisions’, provides, in paragraphs 1 and 2 thereof: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.’

6Article 83 of Regulation No 207/2009, entitled ‘Reference to general principles’, states:‘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.’

Background to the dispute

7The General Court set out the background to the dispute as follows in paragraphs 1 to 12 of the judgment under appeal:1 On 26 June 2009, pursuant to … Regulation … No 207/2009 …, the applicant, [Repower], obtained from [EUIPO] protection in the European Union for international registration No 1020351 of the word mark REPOWER.…3 On 3 June 2013, the intervener, repowermap.org, filed an application for a declaration of invalidity of the contested mark … The intervener claimed that the contested mark was descriptive and devoid of distinctive character in respect of all the goods and services covered by the mark.4 On 9 July 2014, the Cancellation Division [partially] upheld the application for a declaration of invalidity ……6 On 8 September 2014, the intervener filed a notice of appeal at EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 …, against the decision of the Cancellation Division.7 By decision of 8 February 2016 (“the decision of 8 February 2016”), the Fifth Board of Appeal of EUIPO dismissed the appeal. …8 By application lodged at the Court Registry on 26 April 2016, the intervener brought an action against the decision of 8 February 2016. The case was registered under number T‑188/16.9 By a communication of 22 June 2016, the Fifth Board of Appeal informed the parties that, further to an action being brought before the Court in Case T‑188/16, repowermap v EUIPO – Repower (REPOWER), it had found that the decision of 8 February 2016 contained an inadequate statement of reasons for the purposes of Article 75 of Regulation No 207/2009 … The Board of Appeal explained that, because of the inadequate statement of reasons, and pursuant to Article 80 of Regulation No 207/2009 …, it considered it appropriate to revoke the decision of 8 February 2016 and carry out a detailed analysis of the distinctive and descriptive characters of the contested mark with regard to the goods and services covered by that sign. It invited the parties to submit observations on its intention to revoke the decision of 8 February 2016.10 The 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 … 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.11 The intervener submitted its observations on 20 July 2016. It observed that, as Article 80 of Regulation No 207/2009 was a specific rule, it applied instead of the general principles to which Article 83 of Regulation No 207/2009 referred. The intervener also observed that whether or not an inadequate statement of reasons amounted to a procedural error was uncertain and that there was a significant probability that a revocation of the decision of 8 February 2016 on the grounds of an inadequate statement of reason was not allowed. The intervener’s opinion was that, in view of those circumstances, it was preferable to continue proceedings before the Court in Case T‑188/16, repowermap v EUIPO – Repower (REPOWER).12 By [the contested] decision …, the Fifth Board of Appeal of EUIPO revoked the decision of 8 February 2016. The Board explained that, despite the doubts expressed by the parties on the matter, Article 80 of Regulation No 207/2009 remained applicable after Regulation 2015/2424 came into force. In addition, the Board commented that EUIPO had an obligation to provide reasons for its decisions and, in particular, to analyse the grounds for refusal in relation to the goods and services in question, meaning that an inadequate statement of reasons, as contained in the decision of 8 February 2016, was an obvious procedural error for the purposes of Article 80 of Regulation No 207/2009 and needed to be corrected.’

The procedure before the General Court and the judgment under appeal

8By application lodged at the Registry of the General Court on 10 October 2016, the appellant brought an action for annulment of the contested decision.

9In support of its action, the appellant invoked four pleas in law alleging, first, the absence of a legal basis, secondly, the Boards of Appeal have no power to revoke their decisions, thirdly, 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, fourthly, a failure to state reasons.

10By the judgment under appeal, the General Court dismissed the action in its entirety. In paragraphs 53 to 59 of the judgment under appeal, the General Court first of all considered that the Board of Appeal could not base the contested decision on Article 80(1) of Regulation No 207/2009, in so far as a failure to state reasons does not constitute an obvious procedural error for the purposes of that provision. In paragraphs 60 to 88 and 92 to 95 of the judgment under appeal, the General Court next considered that the contested decision could be based on the general principle of law permitting the withdrawal of unlawful administrative acts, since the conditions for the application of that principle are satisfied. Although EUIPO committed an error in the choice of legal basis for the contested decision, the General Court noted, in paragraph 89 of the judgment under appeal, that such an error entails the annulment of the act concerned only where it is capable of affecting the its content. Since it found, in paragraphs 90 and 91 of the judgment under appeal, that the Board of Appeal’s error relating to the choice of the legal basis did not justify the annulment of the contested decision, the General Court dismissed the action.

Forms of order sought by the parties before the Court of Justice

11By its appeal, Repower claims that the Court should:– set aside the judgment under appeal;– annul the contested decision; and– order EUIPO to pay the costs.

12EUIPO and repowermap.org contend that the Court should dismiss the appeal and order Repower to pay the costs.

The appeal

The legal interest in bringing proceedings

Arguments of the parties

13According to repowermap.org, the appellant no longer has an interest in requesting the annulment of the contested decision. Referring to paragraph 91 of the judgment under appeal, repowermap.org states that, given that it held that the decision of 8 February 2016 was vitiated by a failure to state reasons, the General Court should annul that decision in the context of the proceedings relating to the case registered under number T‑188/16, currently pending before it, in the event that the Court upholds the appeal and annuls the contested decision. Such a situation would give rise to additional procedures, despite the fact that the result would probably not be different from the current situation. Since the appellant can thus derive no benefit from the decision of 8 February 2016 being maintained, repowermap.org considers that the appeal is inadmissible.

14At the hearing, the appellant claimed that it still had an interest in obtaining the annulment of the contested decision. It in particular claimed, with reference to the fourth ground of its appeal, that the contested decision had the effect of revoking the decision of 8 February 2016 in its entirety, although that decision was partially favourable to it. It concludes therefrom that the fact of setting aside the judgment under appeal and annulling the contested decision and, therefore, the maintenance of the decision of 8 February 2016 results in the proceedings in Case T‑188/16 being resumed, which would allow it to pursue its claims, including on appeal before the Court, in order to prevent the annulment of that decision and to thus safeguard the rights it derives from that decision.

15During the hearing, EUIPO considered that the appellant no longer has an interest in bringing the proceedings. While acknowledging that part of the decision of 8 February 2016 was favourable to the appellant, EUIPO noted that it recognised that that decision was unlawful for failing to state its reasons, so that, in those circumstances, the appellant could not rely on the benefit of that decision.

Findings of the Court

16It is settled case-law that for a person to have an interest in bringing appeal proceedings the appeal must be capable, if successful, of procuring an advantage for that party (judgments of 19 October 1995, Rendo and Others v Commission, C‑19/93 P, EU:C:1995:339, paragraph 13; order of 5 July 2018, Wenger v EUIPO, C‑162/18 P, not published, EU:C:2018:545, paragraph 13 and the case-law cited, and judgment of 13 July 2000, Parliament v Richard, C‑174/99 P, EU:C:2000:412, point 33).

17In the present case, it is common ground that the decision of 8 February 2016, revoked by the contested decision, was favourable to the appellant, in so far as it dismissed the action brought by repowermap.org against the Cancellation Division’s decision of 9 July 2014, which was itself partially favourable to the appellant.

18Therefore, in the event that the appeal in the present case is upheld and then the contested decision annulled, the decision of 8 February 2016 would be maintained and the appeal would procure, by its outcome, an advantage for the appellant. The fact of potentially maintaining that decision would guarantee the appellant the possibility of retaining the protection in the European Union of the international registration No 1020351 of the word mark REPOWER for certain goods and services.

19That finding is not undermined by repowermap.org’s arguments alleging that, in paragraph 91 of the judgment under appeal, the General Court stated that it was necessary to annul the decision of 8 February 2016, in the context of the action for annulment registered as Case T‑188/16 and that, therefore, upholding the appeal would procure only a temporary advantage for the appellant.

20It is not for the Court of Justice, in the context of the examination of the interest in bringing proceedings, to deny the existence of such an interest on the ground that, in the judgment under appeal, the General Court incidentally assessed the lawfulness of the decision of 8 February 2016, although that decision was not the subject of the action brought before it. To the extent that it is necessary to take into consideration the decision of 8 February 2016, which is intrinsically linked to the contested decision, it must be noted that it concerns a question of substance, since the Court of Justice cannot assume that the decision of 8 February 2016 is unlawful at the stage of examining the interest in bringing proceedings. In that context, it is necessary, but sufficient, that, by its outcome, the appeal brought before the Court of Justice be capable of benefiting the party which brought it, which is so in this case, as is apparent from paragraphs 17 and 18 of the present judgment.

21In those circumstances, it must be held that the appellant has an interest in bringing proceedings for the purposes of the present appeal.

Substance

22The appellant relies on five grounds of appeal. By its first ground, the appellant claims that, by having amended, during the proceedings before the General Court, its arguments relating to the legal basis of the contested decision, relying on the general principle of law permitting the withdrawal of unlawful administrative acts, EUIPO amended the subject matter itself of the dispute. In the context of its second ground, the appellant claims that the General Court wrongly applied the general principle of law permitting the withdrawal of unlawful administrative acts, in so far as the provisions of Regulation No 207/2009 in force on the date of adoption of the contested decision constituted leges speciales and, as such, did not permit that principle to be applied. By its third ground, the appellant alleges that the General Court reversed the burden of proof in the context of Article 83 of Regulation No 207/2009. By its fourth ground, the appellant alleges that, even assuming that the general principle of law permitting the withdrawal of unlawful administrative acts is applicable, the decision of 8 February 2016 should not, for reasons of protection of legitimate expectations, have been revoked in its entirety. Finally, the fifth ground alleges a failure to state reasons for the contested decision.

The first to fourth grounds of appeal

23By its first to fourth grounds of appeal, the appellant claims, in essence, that the General Court, by having applied the general principle of law permitting the withdrawal of unlawful administrative acts, as the case may be in combination with Article 83 of Regulation No 207/2009, erred in law.

24In particular, in the context of the second ground, which should be examined first, the appellant claims inter alia that the General Court disregarded the principle that special laws derogate from general laws. According to the appellant, Article 80(1) of Regulation No 207/2009 does not permit, as an exclusion rule and lex specialis, reliance on principles of law generally acknowledged in the Member States, referred to in Article 83 of that regulation, or reliance on the general principle of law permitting the withdrawal of unlawful administrative acts. EUIPO could revoke its decisions only in the situation envisaged by that provision, otherwise the latter would be meaningless. The appellant adds that, by adopting Article 80 of Regulation No 207/2009, the EU legislature intended to limit EUIPO’s power of revocation to the sole case envisaged in that article.

25Therefore, by having examined the possibility of revoking the decision of 8 February 2016 by the adoption of the contested decision on the basis of the general principle of law permitting the withdrawal of unlawful administrative acts and Article 83 of Regulation No 207/2009, the General Court erred in law.

26In the light of the appellant’s arguments, it is necessary to examine whether the General Court infringed the principle that a special law derogates from general laws by basing the revocation of the decision of 8 February 2016 in particular on the general principle of law permitting the withdrawal of unlawful administrative acts.

27In accordance with Article 80(1) of Regulation No 207/2009, EUIPO is to revoke any decision which contains an obvious procedural error attributable to it.

28In that regard, it should be noted that, for the reasons stated by the General Court in paragraphs 29 and 33 to 38 of the judgment under appeal, which are not contested by the appellant, the Boards of Appeal of EUIPO have the power to revoke provided for in Article 80(1) of Regulation No 207/2009.

29In the second place, it must be noted that it follows from the wording of that provision that an obvious procedural error, for the purposes of that provision, is a blatant error of a procedural nature committed by EUIPO.

30For the purposes of interpreting the concept of ‘obvious procedural error’, within the meaning of Article 80(1) of that regulation, it is necessary, according to the Court’s settled case-law, to consider not only their wording but also the context in which they occur and the objectives pursued by the rules of which they are part (judgment of 5 September 2019, Verein für Konsumenteninformation, C‑28/18, EU:C:2019:673, paragraph 25).

31As regards the context of that provision, it should be pointed out that both Article 80 and Article 75 of Regulation No 207/2009, relating to the obligation to state reasons for the decisions of EUIPO, come under Title IX of that regulation, entitled ‘Procedure’. Therefore, it follows from the scheme of that regulation that the procedural errors which led EUIPO to revoke its decision, in accordance with Article 80(1) of that regulation, concern in particular procedural rules included under that title, such as the obligation to state reasons.

32That interpretation is also supported by the objective pursued by Article 80(1). That provision seeks to impose on EUIPO the obligation to revoke decisions containing an obvious procedural error with the aim of guaranteeing good administration and procedural efficiency. In the light of that objective, there is no reason to exclude from the scope of Article 80(1) of Regulation No 207/2009 obvious errors committed by EUIPO relating to the infringement of the obligation to state reasons imposed on it under Article 75 of Regulation No 207/2009, which falls under the procedural provisions of that regulation.

33Moreover, that interpretation reflects also the Court’s settled case-law according to which the obligation to state reasons constitutes an essential procedural requirement which must be distinguished from the question of the merits of those reasons, which concern the substantive legality of the contested measure (judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 181).

34It follows that any infringement of the obligation to state reasons, such as an absence of or an inadequate statement of reasons, constitutes a procedural error, for the purposes of that provision and a failure to state reasons such as that identified by the General Court in particular in paragraphs 77 to 82 of the judgment under appeal, vitiating the decision of 8 February 2016, revoked by the contested decision, constitutes such a procedural error.

35Moreover, since it follows, first, from paragraphs 48 and 52 of the judgment under appeal that EUIPO and repowermap.org had knowledge of the partial failure to state reasons vitiating the decision of 8 February 2016 and, secondly, from paragraph 82 of that judgment that the failure to state reasons at issue should have given rise on the part of the appellant to doubts concerning the lawfulness of that decision, which the appellant does not contest at the appeal stage, all of the parties were able to identify the failure to state reasons at issue, so that it concerns an obvious procedural error for the purposes of Article 80(1) of Regulation No 207/2009.

36It follows that Article 80(1) of that regulation was applicable in this case. In those circumstances, it is necessary to uphold the appellant’s complaint, according to which, by applying the general principle of law permitting the withdrawal of unlawful administrative acts instead of Article 80(1) of that regulation, the General Court infringed the principle that a special law derogates from general laws.

37However, in accordance with settled case-law, the error of law thus committed by the General Court does not invalidate the judgment under appeal if the operative part thereof and, in particular, the conclusion that the decision of 8 February 2016 was validly revoked by the contested decision is shown to be well founded on other legal grounds. 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 (judgments of 30 September 2003, Biret International v Council, C‑93/02 P, EU:C:2003:517, paragraph 60 and the case-law cited, and of 14 October 2014, Buono and Others v Commission, C‑12/13 P and C‑13/13 P, EU:C:2014:2284, paragraph 62 and the case-law cited).

38It follows from the foregoing findings that EUIPO was required to revoke the decision of 8 February 2016 by the contested decision adopted on the basis of Article 80(1) of Regulation No 207/2009, so that the General Court was entitled to hold that the decision of 8 February 2016 had been validly revoked. Since the operative part of the judgment under appeal is shown to be well founded for the legal reasons set out in the previous paragraphs of the present judgment, it is necessary to make a substitution of the grounds and to conclude that the error of law committed by the General Court is not such as to lead to the judgment under appeal being set aside (see, to that effect, judgment of 28 March 2019, River Kwai International Food Industry v AETMD, C‑144/18 P, not published, EU:C:2019:266, paragraph 22).

39In those circumstances, it must be held that the first to fourth grounds, which all relate to the General Court’s reasoning based on the general principle of law permitting the withdrawal of unlawful administrative acts and on Article 83 of Regulation No 207/2009, are ineffective. Therefore, it is necessary to reject them without it being necessary to examine the admissibility of the first, second and fourth grounds, contested by EUIPO and repowermap.org, or to respond to the argument alleging that Article 80(1) of Regulation No 207/2009 definitively regulates the possibilities to revoke decisions of EUIPO and thus preclude such a revocation where the conditions for the application of that provision are not met.

40Therefore, the first to fourth grounds of appeal must be rejected.

The fifth ground of appeal, alleging a failure to state reasons for the contested decision

–Arguments of the parties

41By its fifth ground of appeal, the appellant considers that the reference it made to the decision of the Grand Board of Appeal was ignored. According to the appellant, paragraph 24 of that decision attests to the fact that the Boards of Appeal cannot revoke their decisions where those decisions are subject to an appeal before the General Court. Therefore, it is not possible to consider that the abovementioned decision of the Grand Board of Appeal was not relevant in the present case. The appellant considers by contrast that that decision is relevant in so far as it applies to inter partes proceedings under trade mark law.

42Moreover, the appellant considers that the General Court contradicted itself by stating, first, in paragraph 80 of the judgment under appeal, that the Board of Appeal had to respond, at least summarily, to the detailed arguments of the appellant and, secondly, that the Board of Appeal was not bound to respond to the appellant’s argument relating to the decision of the Grand Board of Appeal.

43EUIPO and repowermap.org contend that the ground is inadmissible and contest the substance of the appellant’s arguments.

–Findings of the Court

44It should be noted that, according to the Court of Justice’s settled case-law, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal and must not amount in reality to no more than a request for a re-examination of the application brought before the General Court (judgment of 18 October 2018, Gul Ahmed Textile Mills v Council, C‑100/17 P, EU:C:2018:842, paragraph 45 and the case-law cited).

45In the present case, it should be noted that, by its arguments alleging a failure to state reasons for the contested decision, the appellant merely calls into question EUIPO’s decision without voicing any criticism of the reasoning adopted by the General Court. Therefore, such arguments, which are not directed against the judgment under appeal, are inadmissible in an appeal (see, by analogy, judgment of 16 November 2017, Ludwig-Bölkow-Systemtechnik v Commission, C‑250/16 P, EU:C:2017:871, paragraph 28).

46As regards the argument that the General Court contradicted itself by stating, on the one hand, in paragraph 80 of the judgment under appeal, that the Board of Appeal was to respond, at least summarily, to the detailed arguments of the appellant and, on the other hand, that the Board of Appeal was not obliged to respond to the appellant’s argument based on the decision of the Grand Board of Appeal, it should be noted that the appellant does not identify the paragraph of that judgment which is inconsistent with paragraph 80 of that judgment and that its arguments did not appear, overall, to be sufficiently clear for the purposes of identifying with the necessary precision the elements of the judgment under appeal which are being challenged, and the legal arguments relied on in support of that challenge, and thus prevent the Court of Justice from carrying out its review of the lawfulness thereof (see, as regards the need for clarity of argumentation, order of 30 January 2014, Fercal v OHIM, C‑324/13 P, not published, EU:C:2014:60, paragraph 37 and the case-law cited).

47Consequently, the fifth ground of appeal must be rejected as inadmissible.

48It follows from all of the foregoing considerations that the appeal must be dismissed in its entirety.

Costs

49In accordance with Article 184(2) of the Rules of Procedure of the Court, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

50Since EUIPO and repowermap.org have requested that the appellant be ordered to pay the costs and the latter has been unsuccessful, it must be ordered to pay the costs.

Operative part

On those grounds, the Court (Second Chamber) hereby:

1.Dismisses the appeal;

2.Orders Repower AG to pay the costs.