ddrg/super_eurlex huggingface dataset:
The decisions of the appointing authority to assign the applicants to the types of post ‘administrator in transition’ or ‘administrator’, introduced by Regulation No 1023/2013, amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European, as indicated by a reference made to the assignment of the applicants to those types of post in the applicants’ individual files in the Human Resource Management information system known as ‘SysPer 2’, adversely affect them, in so far as they lose, with effect from 1 January 2014, their eligibility for promotion to a higher grade.

There is only a breach of the principle of equal treatment, a general principle of EU law enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union and applicable to EU civil service law, where two categories of persons whose factual and legal situations are not essentially different receive different treatment in their classification and where that difference in treatment is not objectively justified. When that principle is applied, the situations to be compared must be examined taking account of all the factors characterising those situations. The principle of equal treatment implies that all officials promoted to the same grade must, in case of equal merit, be given the same opportunities to be promoted to a higher grade.

As for administrators in grade AD 5 to AD 11, it must be found that they are objectively not in the same situation as that of grade AD 12 or AD 13 officials, since, unlike the latter, they have not yet reached the maximum grade for the type of post in which they are likely to advance.

With regards to heads of unit and given the nature of the duties performed by them, which are substantially more significant than those performed by administrators who report directly to those heads of unit, the persons concerned, where they are assigned to ‘administrator’ or ‘administrator in transition’ types of post, cannot claim that they are in a situation comparable to that of the heads of unit in question. With regard to ‘advisers or equivalent’, it is apparent from the case-law that they, together with ‘heads of unit or equivalent’ or officials recruited by the Commission for the specific post of ‘senior expert’, must perform different or additional duties in relation to those performed by ‘administrators’ or even exercise supervisory responsibilities, resulting in ‘significant responsibilities’ or possibly responsibilities that are more significant than before, which are such as to justify that, within the framework of the new Staff Regulations, as amended by Regulation No 1023/2013, ‘legal advisers’ and ‘senior experts’ occupy the post ‘adviser or equivalent’ at grade AD 13 with the possibility of promotion to grade AD 14, contrary to the situation of ‘administrators’ at grade AD 12 or AD 13.

(see paras 62, 64, 65, 67, 68)
Common foreign and security policy — Restrictive measures against Syria — Freezing of funds of persons, entities or bodies associated with the Syrian regime — Rights of the defence — Notification of inculpatory evidence — Subsequent decision maintaining the name of the applicant on the list of persons covered by those measures — Prior communication of new reasoning arising from a context known to the person concerned — New inculpatory evidence — None

(Charter of Fundamental Rights of the European Union, Art. 41; Council Decisions (CFSP) 2016/850, (CFSP) 2017/917 and (CFSP) 2018/778)

(see paras 54, 55, 57)
An action for annulment is, in principle, only available against a measure by which the institution concerned definitively determines its position upon the conclusion of an administrative procedure. By contrast, intermediate measures whose purpose is to prepare for the definitive decision, or measures which are mere confirmation of an earlier measure or purely implementing measures, cannot be treated as acts open to challenge, in that such acts are not intended to produce autonomous binding legal effects compared with those of the act of the EU institution which is prepared, confirmed or enforced.

A letter by which the Commission, following a complaint by the applicant, interprets the scope of the Final Commitments made by an undertaking following a Commission decision declaring a merger to be compatible with the internal market does not constitute a challengeable act. Such a letter does not constitute a decision, but merely a legally non-binding statement that the Commission is authorised to make in the context of ex post supervision of the correct implementation of its decisions relating to the control of concentrations. In that regard, that letter is not capable of substantially altering the applicant’s legal situation, in so far as only the Final Commitments govern the rights and obligations of the undertaking concerned and third party operators wishing to benefit from the Final Commitments. That letter also does not constitute a review of the obligations of the undertaking concerned in the light of new and significant facts, but a mere reiteration of those obligations, as they are stipulated in the Final Commitments and made binding by the Commission decision.

(see paras 35, 40, 41, 44)
Judgment of the General Court (First Chamber) of 19 June 2019 –

L’Oréal v EUIPO — Guinot (MASTER SHAPE)

(Case T‑180/16 RENV)

( EU trade mark — Opposition proceedings — Application for EU word mark MASTER SHAPE — Earlier national figurative mark MASTERS COLORS PARIS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001 ))

1. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 37, 38, 43, 77, 81, 82, 84, 87, 89)

2. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 42, 60)

3. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Assessment only on the basis of the dominant element of a complex mark — Conditions (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 44, 45, 49, 58)

4. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Weak distinctive character of the earlier mark — Effect (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 55)

5. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Word mark MASTER SHAPE and figurative mark MASTERS COLORS PARIS (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 63, 66, 67, 76, 91)

6. EU trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — EUIPO’s previous decision-making practice — Principle of legality — Need for a strict and complete examination in each particular case (Council Regulation No 207/2009) (see para. 90)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 23 February 2016 (Case R 2907/2014-5) relating to opposition proceedings between Guinot and L’Oréal.

Operative part

The Court:

1. Dismisses the action;
Officials – Staff of the European Central Bank – Social security – Insurance against the risk of accident and of occupational disease – Establishing whether a disease results from an official’s occupation – Procedure – Application by analogy of the case-law developed in relation to the Staff Regulations

(Staff Regulations of Officials, Art. 73; Rules on insurance against the risk of accident and of occupational disease, Arts 16(1) and (2), 17, 18 and 21; European Central Bank Staff Rules, Arts 6.3.11 to 6.3.15)

(see paras 70-73)
Officials – Reimbursement of expenses – Annual travel expenses – Conditions and procedures – Officials with their place of origin outside the EU – Calculation of travel expenses on the basis of the distance separating their place of employment from the capital of the Member State of which they are a national – Discrimination on grounds of nationality – None – Breach of principle of proportionality – None

(Staff Regulations of Officials, as amended by Regulation No 1023/2013, Annex VII, Art. 8(2), second subpara.)

(see paras 38-41, 47-54, 56-60)
76

As regards the applicant’s argument concerning the complementarity existing between ‘ornaments for zip fasteners of precious metals’, first, and ‘bags’, in Class 18 and covered by the earlier mark, second, it must be noted that ‘ornaments for zip fasteners of precious metals’ are not important or indispensable for the use of a bag. A bag, even if it has a zip fastener, can be used without the addition of an ornament to that zip. Moreover, although the question is approached from the perspective of importance, or even of the indispensable nature of ‘bags’ for the use of ‘fittings and ornaments for zip fasteners’, it must be noted that it is, admittedly, true that, in order to use an ornament for zip fasteners, a product with a zip fastener is needed. However, it must be stated that bags are not the only goods which can have such a fastening system. An ornament for zip fasteners can also be used, for example, with clothing with a zip fastener. Furthermore, it must be noted in this respect that some bags do not have a zip-fastening system. The connection between ‘ornaments for zip fasteners of precious metals’ and ‘bags’ is therefore not very close. In this regard, it must be noted that, in order to find similarity between products by reason of their complementarity, it is not sufficient for one product to be indispensable or important for the use of the other, but that situation must also have the effect of leading consumers to think that the responsibility for their production lies with the same undertaking (see paragraph 74 above). In other words, it is necessary to examine whether ‘bags’ are important for the use of ‘ornaments for zip fasteners’ to the extent that the public might imagine that the responsibility for their production lies with the same undertaking (see, to that effect, judgment of 14 May 2013, Sanco v OHIM — Marsalman (Representation of a chicken), T‑249/11, EU:T:2013:238, paragraph 39). It must be held that the connection existing between ‘ornaments for zip fasteners of precious metals’ and ‘bags’ is not sufficiently close for consumers to imagine that the same company is responsible for the production of those goods. The public does not expect a bag manufacturer also to offer for sale ornaments for zip fasteners.
31

Secondly, in relation to the Commission’s calculation of the number of years of pensionable service to be taken into account within the Union pension scheme, which is a separate calculation from that of the capital representing the acquired pension rights, as is apparent from paragraph 24 above, it should be noted that neither Article 11(2) of Annex VIII to the Staff Regulations, nor any other provision of those regulations, expressly lays down any obligation to deduct, from the updated capital actually transferred, the 3.1% interest referred to in Article 8 of that same annex. It follows that the Commission’s argument that, essentially, the second subparagraph of Article 11(2) of Annex VIII to the Staff Regulations requires the PMO, in all cases, to ‘update’ the capital representing the value of the pension rights acquired as at the date of registration of the application, is not based on any provision of the regulations. The only deduction required by the regulations is that of the amount representing capital appreciation between the date of the application for a transfer and the actual date of transfer of the capital updated to that date. In any event, it is not for the Commission to determine, or as it asserts, ‘update’ the concrete amount of capital representing the pension rights acquired, as at the date of registration of the application for a transfer, by virtue of the previous activities of the official in question.
70

In this case, in the contested decision, the Commission explains that the complaints submitted in the request for review, set out in paragraph 14 above, refer to the health effects of the consumption of genetically modified organisms. Therefore, according to the Commission, those complaints could not be examined within the framework of Article 10 of Regulation No 1367/2006. More specifically, the Commission maintains, in the first place, that the authorisation decisions permit the importation of the soybeans at issue for use in food and in feed, but exclude their being used for cultivation. According to the Commission, a distinction should be made between the safety assessment, which relates to, inter alia, toxicity, allergenicity and nutrition, and the environmental risk assessment. In the second place, the Commission explains that the arguments submitted by the applicant in the request for review on the absence of EFSA guidance concerning the safety and nutritional assessment of genetically modified crops is related to the impact on health of the consumption of genetically modified food and feed. The Commission adds that the nutritional assessment is one of the ‘areas of risks’ that is taken into consideration when assessing the impact on health of the consumption of genetically modified food and feed, but is not part of the environmental risk assessment related to potential release into the environment. Further, the Commission considers that the labelling of the food at issue concerns the characteristics of that food as delivered to final consumers for consumption and that that labelling has no connection with the environmental risk assessment. Last, the Commission maintains that the other three arguments of the applicant, namely the absence of post-market monitoring, the failure to examine herbicide residues in the food and feed in question and the relevance of a study on the unintended effects on human or animal health of the consumption of plants affected by ribonucleic acid interference, have no connection with the environmental risk assessment. Consequently, those arguments cannot be examined within the framework of Article 10 of Regulation No 1367/2006 (see paragraph 17 above).
96

Fourth, with regard to the time element, the applicant’s argument that regional elections were still a long time off in France must be rejected. In the first place — irrespective of whether any use of the French version of the poster was actually made by the Front national, by its members or by its sympathisers during those elections — contrary to what the applicant claims, a period of 5 months between the launch of the campaign and the holding of those elections does not seem sufficient to make the use of that campaign for the purposes of those elections unlikely. In the second place, in any event, as is made clear in paragraph 83 above, the time element is one piece of evidence that could be taken into account. However, it is not an essential precondition or even the most decisive piece of evidence. In the present case, having regard to the letter from the Parliament of 22 July 2016, the note from the Secretary-General of the Parliament to the Bureau of that institution of 5 September 2016 and the letter from the Parliament of 26 September 2016 notifying the contested decision, the fact remains that possible nearness in time to the elections in question is not one of the pieces of evidence which the Parliament took into account in order to conclude that there had been indirect funding of national political parties. That cannot be criticised, since an advantage for a national political party with regard to its image and visibility should not necessarily be confined to a particular electoral period.
59

Second, that event is also ‘substantial’, within the meaning of the same case-law. It should be recalled that, in order to refuse to grant the applicant, in the decision of 8 March 2016, access to some of his personal data, the Security Directorate invoked, depending on the data in question, first, the exemption laid down by Article 20(1)(a) of Regulation No 45/2001, which aims to safeguard ‘the prevention, investigation, detection and prosecution of criminal offences’, and, second, the exemption laid down by Article 20(1)(c) of that regulation, which aims, in particular, to safeguard ‘the protection [...] of the rights and freedoms of others’. As regards the exemption laid down in Article 20(1)(a) of Regulation No 45/2001, the Security Directorate indicated that the disclosure of the data in question would reveal its investigation tools and methods. As regards the exemption laid down in Article 20(1)(c) of the regulation, the Security Directorate stated that the disclosure of the data in question would prejudice the rights of other persons whose data has been the subject of processing, namely witnesses and informants heard in the context of the administrative investigation. Thus, it is clear that the grounds upon which the applicant was partially refused access in the decision of 8 March 2016 were related, at least indirectly, to the administrative investigation relating to the applicant. Consequently, it cannot be excluded that the closure of that investigation significantly altered the applicant’s situation.
EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Separate examination of the grounds for refusal in relation to each of the goods or services covered by the application for registration—Obligation to state the reasons for refusing to register—Scope

(Council Regulation No 207/2009, Arts 7(1), and 75, first sentence)

(see para. 57)
Judicial proceedings—Application initiating proceedings—Formal requirements—Brief summary of the pleas in law on which the application is based—Pleas in law not set out in the application—Reference to elements in an annex—Inadmissibility

(Statute of the Court of Justice, Arts 21 and 53, first para.; Rules of Procedure of the General Court, Arts 76(d), 171 and 177(1))

(see para. 24)
Judgment of the General Court (Second Chamber) of 30 November 2017 — Mackevision Medien Design v EUIPO (TO CREATE REALITY)

(Case T‑50/17)

(EU trade mark — Application for EU word mark TO CREATE REALITY — Trade mark consisting in an advertising slogan — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001])

1. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Meaning (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 14,15)

2. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Word mark TO CREATE REALITY (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 18-20, 27-42, 53, 54)

3. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Marks constituted of advertising slogans—Distinctive character—Application of specific criteria for assessment—Not permissible (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 22, 23)

4. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Marks constituted of advertising slogans—Slogan with a fantasy character (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 24)

5. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Marks constituted of advertising slogans—Flattering promotional formula (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 25, 26)

6. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Trade mark made up of several elements—Possible for the competent authority to examine each of the elements making up the trade mark—Scope of protection of the mark (Council Regulation No 207/2009, Art. 7(1)(b)) (see para 30)

7. EU trade mark—Decisions of the Office—Principle of equal treatment—Principle of sound administration—EUIPO’s previous decision-making practice—Principle of legality—Need for a strict and complete examination in each particular case (Council Regulation No 207/2009) (see para. 52)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 20 December 2016 (Case R 995/2016-5) concerning an application for registration of the word sign TO CREATE REALITY as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Examination of the grounds for refusal having regard to each of the products or services covered by the application for registration—Obligation to state the reasons for refusing to register—Scope

(Council Regulation No 207/2009, Arts 7(1) and 75, first sentence)

(see paras 34, 35)
Judgment of the General Court (Eighth Chamber) of 24 April 2018 –

Mémora Servicios Funerarios v EUIPO — Chatenoud (MEMORAME)

(Case T‑221/17)

(EU trade mark — Opposition proceedings — Application for EU word mark MEMORAME — Earlier EU figurative mark mémora and earlier national word marks MÉMORA — Relative ground for refusal — Likelihood of confusion — Similarity of the goods and services — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

1. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services—Likelihood of confusion with the earlier mark—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23, 24)

2. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services—Similarity between the goods or services in question—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 26)

3. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services—Similarity between the goods or services in question—Complementary nature of the goods or services (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 31, 34, 35)

4. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services—Likelihood of confusion with the earlier mark—Word mark MEMORAME—Figurative mark mémora and word marks MÉMORA (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 41-49)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 10 February 2017 (Case R 1308/2016-4), relating to opposition proceedings between Mémora Servicios Funerarios and Mr Chatenoud.

Operative part

The Court:

1. Dismisses the action;