ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Eighth Chamber) of 10 April 2018 –

Alcogroup and Alcodis v Commission

(Case T‑274/15)

(Action for annulment — Competition — Agreements, decisions and concerted practices — Markets in bioethanol and ethanol — Administrative procedure — Decision ordering an inspection — Commission’s powers of investigation — Professional privilege protecting communications between lawyers and their clients — Documents exchanged following a previous inspection — Commission’s refusal to suspend the infringement proceedings at issue — Measure not open to challenge — Inadmissibility)

1. Actions for annulment—Review of legality—Criteria—Account taken only of elements of fact and law existing at the date on which the contested measure was adopted (Art. 263 TFEU) (see para. 61)

2. Acts of the institutions—Decision—Validity—Assessment to take no account of any irregularities in its implementation (see para. 63)

3. Actions for annulment—Actionable measures—Meaning—Measures producing binding legal effects—Preparatory measures—Not included (Art. 263 TFEU) (see paras 71-75, 80)

4. Actions for annulment—Action against a decision refusing to withdraw or amend an earlier act—Admissibility to be assessed in relation to the possibility of challenging the act at issue (Art. 263 TFEU) (see para. 76)

5. Actions for annulment—Actionable measures—Measures producing binding legal effects—Administrative procedure for applying the competition rules—Measures taken during the inspection procedure—Possibility to contest the final decision adopted by the Commission under the competition rules (Art. 263 TFEU) (see para. 91)

6. EU law—Principles—Right to effective judicial protection—Action for annulment against measures not producing binding legal effects inadmissible—Possibility of parties challenging such measures by an action in non-contractual liability of the Union (Arts 263 TFEU and 340, second para., TFEU) (see para. 92)

Re:

Action pursuant to Article 263 TFEU seeking the annulment of Commission Decision C(2015) 1769 final of 12 March 2015, addressed to Alcogroup and to all companies directly or indirectly controlled by it, including Alcodis, and relating to a procedure pursuant to Article 20(4) of Council Regulation (EC) No 1/2003 (AT.40244 — Bioethanol) and the annulment of the Commission’s letter of 8 May 2015 addressed to Alcogroup in the context of the investigations AT.40244 — Bioethanol and AT.40054 — Oil and Biofuel Markets.

Operative part

The Court:

1. Dismisses the action as inadmissible;

2. Orders Alcogroup and Alcodis to bear their own costs and to pay those incurred by the European Commission, including those relating to the proceedings for interim measures;
Agriculture—EAGF and EAFRD financing—Clearance of accounts—Financing of expenditure resulting from a misapplication of EU law—Condition—Error attributable to an EU institution

(Council Regulations No 1782/2003 and No 73/2009; Commission Regulations No 796/2004, Art. 2, first para., point 2, and No 1120/2009, Art. 2(c))

(see para. 75)
According to the case-law, the similarity between goods or services must be assessed taking into account all the relevant factors which characterise the relationship between the goods and services concerned, including their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Therefore, the complementarity between the goods and services, and in particular the fact that they are used in combination or association with one another, can lead the relevant public to perceive those goods and services as being similar.

According to the case-law, the General Court has the power to alter decisions, but the exercise of that power must be limited to situations in which the General Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take. The Court cannot substitute its own reasoning for that of the Board of Appeal nor carry out an assessment on which that Board of Appeal has not yet adopted a position.

The Court cannot exercise that power to alter decisions without exceeding the limits set out by the case-law, since the Board of Appeal has not adopted a position, in the contested decision, on the scope and implications of the restriction of the list of goods or services in respect of which registration is sought, lodged during the invalidity proceedings before the Cancellation Division, as regards the assessment of the identity or similarity of the goods covered by the trade marks at issue, with the result that there is no assessment in that connection for the Court to review and, if necessary, alter, in accordance with the case-law.

(see paras 87, 88)
2.

Acts of the institutions — Statement of reasons — Obligation — Scope — Decision, in the award procedure for a public works contract, not to accept a tender — Obligation to communicate, following a written request, the characteristics and relative advantages of the tender accepted and the name of the tenderer — Obligation to provide a detailed summary as how every detail of the rejected tender was taken into account for assessment purposes, or a detailed comparative analysis of the accepted tender and the unsuccessful tender — Obligation to provide the supporting documents furnished by the successful tenderer under the selection criteria in order to establish his economic, financial, technical or professional capacity — None (Art. 296, 2nd para. TFEU; European Parliament and Council Regulation No 966/2012, Art. 113(2); Commission Regulation No 1268/2012, Art. 161(2)) (see paras 49, 50, 57)
Judgment of the General Court (Sixth Chamber) of 13 December 2018 –

Stena Line Scandinavia v Commission

(Case T‑631/15)

(State aid — Public financing of the Fehmarn Belt fixed link rail-road project — Individual aid — Decision not to raise any objections — Decision finding no State aid and declaring the aid compatible with the internal market — Definition of State aid — Adverse effect on competition and effect on trade between Member States — Conditions governing compatibility — Aid to promote the execution of an important project of common European interest — Necessity of the aid — Incentive effect — Proportionality of the aid — Serious difficulties justifying the initiation of the formal investigation procedure — Obligation to state reasons — Communication on State aid to promote the execution of important projects of common European interest)

1. Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid (Art. 296 TFEU) (see paras 35, 36)

2. State aid — Effect on trade between Member States — Adverse effect on competition — Criteria for assessment (Art. 107(1) TFEU) (see para. 60)

3. State aid — Examination by the Commission — Preliminary review and main review — Commission’s duty to initiate the main review procedure in the event of serious difficulties — Meaning of serious difficulties — Objective nature — Judicial review — Scope (Art. 108(2) and (3) TFEU) (see paras 113-115)

4. State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Discretion of the Commission — Complex evaluation of economic matters — Judicial review — Limits (Art. 107(3)(b) TFEU) (see para. 116)

5. State aid — Prohibition — Exceptions — Aid contributing to the execution of an important project of common European interest — Concept — Public financing of the Fehmarn Belt fixed rail-road link — Included (Art. 107(3)(b) TFEU; Commission notice 2014/C 188/02) (see paras 141-153)

6. State aid — Prohibition — Exceptions — Discretion of the Commission — Adoption by the Commission of guidelines governing the compatibility of aid with the internal market — Consequences — Self-limitation of its discretion (Art. 107(3)(b) TFEU; Commission notice 2008/C 155/02) (see paras 232-234)

Re:

Application pursuant to Article 263 TFEU for annulment of Commission Decision C(2015) 5023 final of 23 July 2015 on State aid SA.39078 (2014/N) (Denmark) for the financing of the Fehmarn Belt fixed link project (OJ 2015 C 325, p. 5).

Operative part

The Court:

1. Annuls Commission Decision C(2015) 5023 final of 23 July 2015 on State aid SA.39078 (2014/N) (Denmark) for the financing of the Fehmarn Belt fixed link project (OJ 2015 C 325, p. 5) in so far as the Commission decided not to raise any objections to the measures granted by the Kingdom of Denmark to Femern A/S for the planning, construction and operation of the Fehmarn Belt fixed link;

2. Dismisses the action as to the remainder;

3. Orders the Commission to bear its own costs and to pay the costs incurred by Stena Line Scandinavia AB;
Competition — Fines — Amount — Determination — Determination of the basic amount — Gravity of the infringement — Criteria for assessment — Nature of the infringement — Observance of the principle of proportionality

(Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 49(3); Council Regulation No 1/2003, Art. 23(3); Commission notice 2006/C 210/02, points 6, 13 and 23)

(see paras 163-168)
79

In that regard, the Republic of Estonia observes, in essence, that a combined reading of the judgments of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450); of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170); and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171) shows that the sugar decision was contrary to the provisions of Point 4(2) of Annex IV to the Act of Accession and Article 58 thereof. It submits, first of all, that the objective of the system for eliminating the surplus sugar adopted with a view to the accession was to avoid disturbances in the mechanisms provided for by the common organisation of the markets in sugar. It was with a view to achieving that objective that Regulation No 60/2004 imposed on the new Member States the two-fold obligation, firstly, to have in place, on 1 May 2004, a system for identifying surplus stock at the level of the main operators and, secondly, to require those operators to provide proof of the elimination of those stocks before 30 November 2005 or pay a charge for the non-eliminated quantity. The Republic of Estonia fulfilled that obligation by adopting the ÜLTS. It is, moreover, apparent from the judgment of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450), that, under Article 58 of the Act of Accession, a regulation not published in Estonian was not enforceable as against Estonian operators, even if they had been informed of the obligations resulting thereunder and had complied with them. Accordingly, the ÜLTS, referring to the provisions of Regulation No 60/2004 and the CN code for sugar resulting from Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), published in Estonian on 6 August and 4 July 2005 respectively, was not enforceable as against Estonian operators. The Republic of Estonia states that, for that reason, following the delivery of the judgment of 12 July 2012, Pimix (C‑146/11, EU:C:2012:450), it reimbursed the Estonian operators concerned the amounts paid under the ÜLTS. Its obligation to eliminate the surplus under Regulation No 60/2004 was therefore reduced, in practice, by the payment of a charge into the Union budget. Yet further to the judgments of 29 March 2012, Czech Republic v Commission (T‑248/07, not published, EU:T:2012:170), and of 29 March 2012, Lithuania v Commission (T‑262/07, EU:T:2012:171), that is incompatible with Point 4(2) of Annex IV to the Act of Accession.
48

The applicants’ failure to allege such discrimination in the application is of particular significance in the present case. The contested decision cannot be read in isolation from its context. In particular, it is apparent from the case file that, when the action was brought, the applicants had in their possession the press service’s email in which the Parliament refused to provide Mr Voigt with the equipment needed for the press conference, also scheduled for 16 June 2015. That refusal is based on two grounds. Firstly, the press service’s email reiterates the restrictions on access imposed by the Parliament on Russian diplomats and on Russian politicians, being more specifically members of the Gosudarstvennaya Duma Federal’nogo Sobrania Rossiskoï Federatsii (State Duma of the Federal Assembly of the Russian Federation) and of the Soviet Federatsii Federal’nogo Sobrania Rossiskoï Federatsii (Council of the Federation of the Federal Assembly of the Russian Federation), as evidenced by the Parliament’s responses to the measures of organisation of procedure referred to in paragraph 14 above. Secondly, that same email mentions the risk of disturbance of the Parliament’s activities caused by the presence of Messrs Petrov and Biryukov. Moreover, the objective of the contested decision was to prohibit the applicants from entering buildings of the Parliament, a political institution, in order to attend, at the invitation of a Member, a meeting having a political topic, being ‘European cooperation’. Furthermore, the first two applicants hold high positions within the Russian political party Rodina and the third applicant is presented as a university professor of international relations. The meeting in question also purported to be part of a political forum, the ‘International Russian Conservative Forum’, which had been attended by the three applicants and which the Parliament had just criticised in the resolution of 10 June 2015. Lastly, at the hearing the applicants confirmed that the events of 16 June 2015, to which they had been invited, were intended to allow them to express their political opinion on ‘European cooperation’ in order to provide the forum entitled ‘International Russian Conservative Forum’ with the opposite viewpoint to that expressed in the resolution of 10 June 2015, and also to pursue the work commenced there. In those circumstances, an applicant who is familiar with politics and reasonably diligent had to be sensitive to the political climate surrounding the contested decision.
19

The letter of 1 April 2015 reads as follows: ‘Helsinki, 1 April 2015 [To the] French REACH Competent Authority ... Communication number ... Submission number subject to follow up evaluation. ... Date of submission subject to follow up evaluation: 6 November 2013 Statement of Non-Compliance following a Dossier Evaluation Decision under Regulation (EC) No 1907/2006 Pursuant to Article 41(3) of Regulation No 1907/2006 (REACH Regulation), the European Chemicals Agency (ECHA) has performed a compliance check on the dossier [on the registered substance]. ECHA has taken the decision [of 6 November 2012] attached to this letter in accordance with the procedure laid down in Articles 50 and 51 of the REACH Regulation. The decision set a deadline for the Registrant to submit the information requested by that decision to ECHA in the form of an updated dossier by 6 November 2013. An update of the dossier was submitted on 6 November 2013, submission number: ... ECHA has examined the information submitted in the updated dossier. In conclusion, the updated registration dossier does not contain all of the information requested by the ECHA decision. A respective analysis of the reasons for this conclusion is enclosed. Other information in addition to the updated dossier has been submitted in consequence of the decision by the Registrant and is attached. On this basis ECHA states that: – The Registrant has not met the obligations following from [the decision of 6 November 2012]; – The registration dossier is not in compliance with Article 5 of the REACH Regulation; and – The Registrant is in breach of Article 41(4) of the REACH Regulation. The non-compliance with ECHA’s decision and the REACH Regulation may be subject to enforcement actions by the national authorities of the Member States as established in Article 126 of the REACH Regulation. On this matter, you are therefore asked to address the non-compliance in your own competence by means of enforcement to execute ECHA’s decision. ECHA expects that the further communication on the non-compliance with ECHA’s decision is taking place between the registrant and the FR Authorities until the case is resolved. When the Registrant submits an update of his registration in response to the decision, he is expected to inform the FR Authorities on this fact. ECHA is looking forward to receiving your feedback concerning national actions taken on this case of non-compliance. Authorised by ... Director of Evaluation Attachments: ... CC: Registrant (via REACH IT)’.
EU trade mark—Observations of third parties and opposition—Examination of the opposition—Proof of use of the earlier mark—Use of the mark in a form differing by elements not altering the distinctive character of the mark

(Council Regulation No 207/2009, Arts 15(1)(a), and 42(2) and (3))

(see para. 27)
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—Likelihood of confusion with the earlier mark—Assessment of the likelihood of confusion—Determination of the relevant public—Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 22)
A head of claim, submitted on appeal against a decision concerning opposition proceedings, asking that the General Court grant the application for protection in the European Union, is inadmissible. In reality it asks the Court to alter the contested decision, within the meaning of Article 65(3) of Regulation No 207/2009, by adopting the decision which the Board of Appeal ought to have taken, in accordance with the provisions of Regulation No 207/2009. However, in accordance with Article 64(1) of the same regulation, the Board of Appeal may only exercise the powers that are within the competence of the department which was responsible for the decision under appeal or remit the case back to that department for further prosecution. A decision on opposition matters which is contested before the Board of Appeal comes from an Opposition Division which has power to decide on opposition proceedings only and, where appropriate, if the objection is justified, to reject an application for protection in the European Union in respect of an international registration or registration of an EU trade mark, but which does not have power to grant that application. Furthermore, it must be recalled that having regard, first, to the registration procedure as laid down in the provisions of Title IV of Regulation No 207/2009, which first of all involves an initial control by an examiner, inter alia, in the light of the absolute grounds of refusal, then, if the result of that control is favourable, publication of the registration application with a view to allowing any potential opposition under the relative grounds for refusal and, secondly, to the provisions of Article 59 of that regulation concerning the persons entitled to appeal, according to which ‘any party to proceedings adversely affected by a decision may appeal’, a Board of Appeal would never be in a position to carry out a registration. Its decision can occur only in the context of an appeal brought against a decision taken following an initial unfavourable examination by an examiner, in which case, if it finds in favour of the appellant, the proceedings must continue by publication of the application for registration or in the context of proceedings against a decision of an Opposition Division, in which case, as has already been stated, it will not itself be able to grant the application for registration. Therefore, it is similarly not for the Court to take cognisance of an application for alteration requesting that it amend the decision of a Board of Appeal to that effect.

(see paras 12, 13)
EU trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Genuine use — Concept — Criteria for assessment

(Commission Regulation No 2868/95, Art. 1, Rules 22(3), and 40(5); Council Regulation No 207/2009)

(see para. 14)
Judgment of the General Court (Ninth Chamber) of 9 March 2017 —

Puma v EUIPO (FOREVER FASTER)

(Case T‑104/16)

(EU trade mark — International registration designating the European Union — Word mark FOREVER FASTER — Mark consisting of an advertising slogan — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — Equal treatment — Principle of sound administration)

1. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Concept—Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 15, 16)

2. 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 17, 18)

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—Flattering promotional formula (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 19, 21)

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 paras 20, 39)

5. 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 (see paras 29, 48)

6. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Word mark FOREVER FASTER (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 30-33)

7. EU trade mark—Definition and acquisition of the EU trade mark—Assessment of the registrability of a sign—EU rules only taken into account—Earlier registration of the mark in certain Member States or third countries—Decisions not binding EU bodies (Council Regulation No 207/2009) (see para. 56)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 7 January 2016 (Case R 770/2015-1) relating to the international registration designating the European Union in respect of the word mark FOREVER FASTER.

Operative part

The Court:

1. Dismisses the action;