ddrg/super_eurlex huggingface dataset:
JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

12 November 2002

Case T-271/01

José Manuel López Cejudo

v

Commission of the European Communities

‛Officials — Remuneration — Dependent child allowance and education allowance paid to the parent with custody of the child — Refusal to recognise the other parent's entitlement to the allowances for the purpose of calculating the tax abatement and the expatriation allowance — Default interest’

Full text in French II-1109

Application for:

first, annulment of the Commission's decision refusing to recognise, in respect of the period from October 2000 to July 2001, the applicant's entitlement to the dependent child allowance and the education allowance for the purpose of calculating the tax abatement and the expatriation allowance, and, second, default interest on the sums unduly recovered or not paid.

Held:

The Commission's decision, which is apparent from the applicant's salary statement for the month of October 2000, to withdraw recognition of his entitlement to dependent child allowance and education allowance, from July 1999 onwards, for the purpose of calculating the tax abatement and the expatriation allowance, as amended by the Commission's decision of 16 July 2001, is annulled in so far as the latter decision recognises shared entitlement to the allowances at issue and the advantages resulting from that entitlement only for the future. The Commission is ordered to pay to the applicant: default interest, as from November 2000, on the sum of EUR 1193.85 and, as from each month from December 2000 to September 2001, on each monthly instalment of EUR 1200 until such time as those sums have been repaid to him; default interest on the applicant's share of the proceeds of the allowances at issue, as from each month from October 2000 until the date on which the decision of 16 July 2001 took effects until the sums owed are paid in full. The rate of default interest to be applied is to be calculated on the basis of the rate set by the European Central Bank for capital refinancing operations in force during the period concerned, increased by two percentage points

Summary

Officials — Remuneration — Family allowances — Child of two divorced officials actually maintained by both — Simultaneous entitlement of two officials to the allowances and to the advantages resulting from entitlement — Sharing between the ex-spouses (Staff Regulations, Art. 67(1); Annex VII, Arts 1(2)(b), 2(1), (2) and (6), and 3, first para.; Council Regulation No 260/68, Arts 3(3) and 4) Officials — Actions — Prior complaint through official channels — Claim for default interest made for the first time before the Court of First Instance in the event that the contested decision is annulled — Admissibility (Staff Regulations, Arts 90 and 91) Officials — Recovery of undue payments — Unlawful recovety — Repayment — Entitlement to default interest — Point from which time starts to run
Case T-61/01

Vendedurías de Armadores Reunidos, SA

v

Commission of the European Communities

‛Fisheries — Community financial aid — Suspension of aid — Action for damages’

Judgment of the Court of First Instance (Third Chamber), 27 February 2003 II-329

Summary of the Judgment

Fisheries — Common structural policy — Improvement and adaptation of structures — Community financial assistance — Procedure for suspending, reducing or discontinuing aid allocated to the joint enterprise fisheries projects — Referral to the Standing Committee for the Fishing Industry — Need for prior fulfilment by the Commission of its obligations to inform and consult under Article 7 of Regulation No 111 6/88

(Council Regulation No 4028/86, Art. 44; Commission Regulation No 1116/88, Art. 7)

In order to comply with Article 7 of Regulation No 1116/88 laying down detailed rules for the application of decisions granting aid for projects concerning Community measures to improve and adapt structures in the fisheries and aquaculture sector and in structural works in coastal waters, the Commission must, before any referral to the Standing Committee for the Fishing Industry for its opinion on the measures proposed by the Commission for suspending, reducing or discontinuing aid allocated to the joint enterprise fisheries projects under Article 44 of Regulation No 4028/86 on Community measures to improve and adapt structures in the fisheries and aquaculture sector, fulfil the obligations laid down in Article 7 by informing the Member State on whose territory the project was to be carried out, consulting the competent authority responsible for forwarding supporting documents and asking the beneficiary to provide, through the authority or agency, an explanation for the failure to comply with the conditions laid down.

(see paras 52-53)
A misuse of powers is deemed to exist if it is proven that the institution, in adopting the contested act, was pursuing an objective other than that pursued by the rules in question or if it is apparent, on the basis of objective, relevant and consistent evidence, that the act in question was adopted for purposes other than those stated.

The days of leave to which an official is entitled on the one hand, and the public holidays determined by the institutions without creating an entitlement on the part of the official, on the other, are different in nature and are therefore not interchangeable. There is therefore no need, as a rule, to take account, for the purpose of determining public holidays, of the number of days' leave to which officials are entitled.

It follows that the Commission commits a misuse of power in using its discretion under Article 1(3) of the Rules establishing the list of public holidays of officials of the European Communities to amend that list, in respect of its staff, in order to eliminate a supposed imbalance in days of annual leave between officials posted in the territory of the Community, who receive 24 to 30 days' leave per year under Article 57 of the Staff Regulations, and those posted to a third country, who receive five calendar days for each month of service under Article 6 of Annex X to the Staff Regulations.

Article 6 of Annex X to the Staff Regulations confers on the officials concerned an entitlement which they cannot be denied, directly or indirectly, unless that provision has been amended according to the special procedure provided for that purpose.

(see paras 41, 43, 47, 49)
Keywords

Summary



Keywords

1. Community trade mark — Third-party observations and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Definition — (Council Regulation No 40/94, Art. 43(2))

2. Community trade mark — Decisions of the Office — Observance of the rights of the defence — (Council Regulation No 40/94, Art. 73)

Summary

1. The condition of genuine use of the earlier Community mark within the meaning of Article 43(2) of Regulation No 40/94 of 20 December 1993 on the Community trade mark requires that the mark, as protected on the relevant territory, be used publicly and outwardly for the purpose of ensuring an outlet for the goods or services which it represents.

see para. 39

2. Under the second sentence of Article 73 of Regulation No 40/94 on the Community trade mark, a decision of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) can be based only on facts on which the parties concerned have had an opportunity to present their comments. Procedural equity and the general principle of the protection of legitimate expectations require that that provision be interpreted as meaning that the Board of Appeal is obliged to indicate at the outset to the party concerned that it intends to take into account a fact which was not taken into account in the decision of the Opposition Division because it was relied on by the other party in the opposition proceedings after expiry of the time-limit which it had been set it for that purpose, in order that the party concerned be in a position to evaluate the usefulness, if any, of submitting substantive observations on that fact. That obligation is to be respected even if the other party relies on that fact for a second time in the observations which it has lodged with the Board of Appeal.

see paras 46, 48-51
The authority authorised to conclude contracts of engagement has a very broad discretion when comparing the merits of the candidates, in particular where the post to be filled is at a very high level, corresponding to Grade A 1 or A 2. The exercise of that broad discretion presupposes at the very least scrupulous observance of the relevant regulations, in other words not just of the recruitment notice, but also of any procedural rules which the authority has adopted for the exercise of its discretion.

The recruitment notice constitutes a legal framework which the authority authorised to conclude contracts of engagement imposes on itself and to which it must adhere strictly. Likewise, a recruitment procedure agreed by an ad hoc committee set up by the authority authorised to conclude contracts of engagement with the task of examining the documents relating to the recruitment procedure, and approved, at least tacitly, by that authority, forms part of the legal framework to which the authority is required to adhere strictly in the exercise of its broad discretion.

(see paras 52-56)

See: C-35/92 P Parliament v Frederiksen [1993] ECR I-991, paras 15 and 16; T-586/93 Kotzonis v ESC [1995] ECR II-665, para. 81; T-21/96 Giannini v Commission [1997] ECRSC I-A-69 and II-211, para. 19; T-159/96 Wenk v Commission [1998] ECRSC I-A-193 and II-593, para. 63; T-203/97 Forvass v Commission [1999] ECRSC I-A-129 and II-705, para. 45; T-143/98 Cendrowicz v Commission [1999] ECRSC I-A-273 and II-1341, para. 39; T-351/99 Brumter v Commission [2001] ECRSC I-A-165 and H-757, para. 71; T-95/01 Coget and Others v Court of Auditors [2001] ECRSC I-A-191 and II-879, para. 113; T-158/01 Tilgenkamp v Commission [2002] ECRSC I-A-111 and II-595, paras 50 and 51
Keywords

Summary



Keywords

Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Signs devoid of any distinctive character — Figurative mark BEST BUY — (Council Regulation No 40/94, Art. 7(1)(b))

Summary

A figurative mark constituted by the shape of a coloured price tag with the word mark " BEST BUY" and the letter " R" , registration of which is applied for in respect of business management consultancy (Class 35 of the Nice Agreement), installation and maintenance of equipment (Class 37) and technical consultancy and advising in the establishment of retail stores (Class 42), is devoid of distinctive character for the purposes of Article 7(1)(b) of Regulation No 40/94 of the Community trade mark. That word mark, composed of ordinary English words which clearly indicate an advantageous relation between the price of the services covered by the application and their market value, is immediately perceived by the relevant public as a mere promotional formula or slogan rather than an indication of the commercial origin of the services. Similarly, coloured price tags are commonly used in trade for all kinds of goods and services, and the presence of elements such as the letter " R" , alongside other elements, is not sufficient to confer distinctive character on a mark viewed in its entirety. Therefore, viewed as a whole, the mark claimed is composed merely of elements which, when examined separately, are devoid of distinctive character for the marketing of the services concerned, without there being any interaction between those various elements which might confer a distinctive character on the whole.

see paras 28-30, 33-34, 36, 38
Case T-318/01

Omar Mohammed Othman

v

Council of the European Union and Commission of the European Communities

‛Common foreign and security policy — Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban — Freezing of funds — Action for annulment — Adaptation of heads of claim — Fundamental rights — Right to respect for property, right to be heard and right to effective judicial review’

Judgment of the Court of First Instance (Seventh Chamber), 11 June 2009 II ‐ 1630

Summary of the Judgment

When, during the proceedings, one decision is replaced by another having the same subject-matter, this must be considered a new factor allowing the applicant to adapt its pleas in law and claims for relief. It would indeed be contrary to the due administration of justice and the requirements of procedural economy to oblige the applicant to make a fresh application. Moreover, it would be inequitable if the defendant institution were able, in order to counter criticisms of a decision contained in an application made to the Community judicature, to amend the contested decision or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending his original pleas in law and form of order sought to the later decision or of submitting supplementary pleadings directed against that decision. That solution may be applied to a situation in which a regulation of direct and individual concern to a person is replaced, during the proceedings, by another regulation having the same subject-matter. (see paras 53, 54)

Because the Council never either communicated to a person the evidence used against him to justify the restrictive measures imposed on him on the basis of Regulation No 881/2002, imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban, or afforded him the right to be informed of that evidence within a reasonable period after those measures were enacted, that person was not in a position to make his point of view in that respect known to advantage. Therefore, that person’s rights of defence, in particular the right to be heard, were not respected. In addition, given the failure to inform him of the evidence adduced against him and having regard to the relationship between rights of defence and the right to an effective legal remedy, that person was also unable to defend his rights with regard to that evidence in satisfactory conditions before the Community judicature, with the result that it must be held that his right to an effective legal remedy has also been infringed. (see paras 85, 86)
JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

23 September 2003

((Community trade mark – Regulation (EC) No 40/94 and Regulation (EC) No 2868/95 – Opposition procedure – Genuine use of earlier mark – Scope of the examination conducted by the Board of Appeal – Assessment of the evidence produced in the procedure before the Opposition Division))

applicant,

v

defendant, the other party to the proceedings before the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being: LHS (UK) Ltd,established in Cheadle Hulme (United Kingdom),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),

having regard to the written procedure and further to the hearing on 15 January 2003,
Case T-162/01





Laboratorios RTB, SL

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)





«(Community trade mark – Opposition procedure – Earlier figurative and word marks containing the word GIORGI – Application for Community word mark GIORGIO BEVERLY HILLS – Relative ground for refusal – Article 8(1)(b) of Regulation (EC) No 40/94)»

Judgment of the Court of First Instance ((Fourth Chamber), 9 July 2003

Summary of the Judgment
Case T-259/01





Nutrinveste ─ Comércio Internacional SA

v

Commission of the European Communities





«(Regulation (EEC) No 2200/87 – Food aid – Transfer of the burden of risk – Deduction from payments)»

Judgment of the Court of First Instance (Fourth Chamber), 11 February 2004

Summary of the Judgment

1.. Agriculture – Common agricultural policy – Food aid – Implementation – Delivery of products – Transfer of the burden of risk from the supplier to the recipient – Point of departure – Goods actually made available after unloading – Effects

(Commission Regulation No 2200/97, Art. 15)

2.. Agriculture – Common agricultural policy – Food aid – Implementation – Delivery of products – Rights and obligations arising from the award not transmissible – Effect – Successful tenderer's responsibility maintained when transport handled by another undertaking

(Commission Regulations Nos 2200/87, Art. 12(3) and 2608/97)

1.

2.
Case T-255/01





Changzhou Hailong Electronics & Light Fixtures Co. Ltd and Zhejiang Yankon Group Co. Ltd

v

Council of the European Union





«(Anti-dumping – Determination of normal value – Market-economy treatment – Analogous country – Article 2(7) of Regulation (EC) No 384/96)»

Judgment of the Court of First Instance (Fifth Chamber, Extended Composition), 23 October 2003

Summary of the Judgment

1.. Common commercial policy – Protection against dumping – Dumping margin – Determination of normal value – Imports from a non-market economy country such as those referred to in Article 2(7)(b) of Regulation No 384/96 – Application of the rules relating to a market-economy country – Application reserved to producers satisfying the conditions set out in Article 2(7)(b) of Regulation No 384/96

(Council Regulations Nos 384/96, Art. 2, and 905/98)

2.. Common commercial policy – Protection against dumping – Dumping margin – Determination of normal value – Imports from a non-market economy country such as those referred to in Article 2(7)(b) of Regulation No 384/96 – General rule requiring reference to the price in a market-economy third country – Use of another reasonable basis only where it is impossible to apply the general rule

(Council Regulation No 384/96, Art. 2(7)(a))

3.. Common commercial policy – Protection against dumping – Dumping margin – Determination of normal value – Imports from a non-market economy country such as those referred to in Article 2(7)(b) of Regulation No 384/96 – Distinction between producers according to whether or not they operate in market-economy conditions – Principle of equal treatment – Breach – None

(Council Regulation No 384/96, Art. 2(7)(b))

1.

2.

3.
Joined Cases T-107/01 and T-175/01

Société des mines de Sacilor – Lormines SA

v

Commission of the European Communities

(ECSC Treaty – Steel – Abandonment of mining concessions – Charges imposed on mining undertakings by the French Republic – Complaint – No favourable response from the Commission – Action for failure to act – Action for annulment – Admissibility – Capacity to bring proceedings – Undertaking within the meaning of Article 80 CS)

Judgment of the Court of First Instance (Fourth Chamber), 7 July 2004

Summary of the Judgment

1. Procedure – Objection of inadmissibility – Absolute bar to proceeding – To be considered of the Court’s own motion

(Art. 80 CS; Rules of Procedure of the Court of First Instance, Art. 113)

2. Actions for annulment – Actions by undertakings or associations brought under Article 33, second paragraph, CS – Capacity to bring proceedings – Undertakings within the meaning of Article 80 CS – Undertaking not having that status at the time of bringing the application or at the time of the conduct complained of in the complaint which was rejected by the contested decision – No capacity to bring proceedings

(Arts 33, second para., CS and 80 CS)

3. Actions for failure to act – Actions by undertakings or associations brought under Article 35 CS – Capacity to bring proceedings – Undertakings within the meaning of Article 80 CS

(Arts 35 CS and 80 CS)

1. Under Article 113 of the Rules of Procedure the Court may at any time of its own motion consider whether there exists any absolute bar to proceeding with an action, including the jurisdiction of the Community judicature to entertain the application. Review by the Court is therefore not limited to absolute bars to proceedings raised by the parties.

An objection relating to the absence of the status of undertaking within the meaning of Article 80 CS raises the question whether there is an absolute bar to proceeding with the case, in so far as it concerns the applicant’s capacity to bring proceedings and its access to certain remedies, and may therefore be considered by the Court of its own motion.

(see paras 51-52)

2. The enumeration in Article 33, second paragraph, CS of the persons entitled to bring an action for annulment is limitative, so that persons who are not referred to there may not validly institute such proceedings.

An undertaking which, because it is not engaged in production, cannot claim the status of an undertaking within the meaning of Article 80 CS at the time of bringing its application, and also could not do so at the time of the conduct complained of in the complaint whose rejection it is contesting, does not therefore have capacity to bring an action for annulment against an ECSC decision.

(see paras 53-54, 56, 59-62)

3. An action for failure to act is, by virtue of Article 35 CS, admissible only if the applicant has the status of an undertaking within the meaning of Article 80 CS.

(see para. 55)
JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

17 July 2003

Case T-81/02

Margot Wagemann-Reuter

v

Court of Auditors of the European Communities

‛Staff case — Leave on personal grounds — Vacant post — Upgrading of post — Reinstatement’

Full text in French II-933

Application for:

first, annulment of the implied decision of the Court of Auditors rejecting the applicant's request for reinstatement following leave on personal grounds of 22 January 2001, and the Court of Auditors' decision of 12 December 2001 rejecting the complaint lodged by the applicant on 14 August 2001 and, second, compensation for material and nonmaterial loss allegedly suffered by the applicant.

Held:

The application is dismissed. The parties are ordered to bear their own costs.

Summary

Officials — Leave on personal grounds — Expiry — Reinstatement — Obligation of the administration — Condition — Notice of vacancy — Concept — Regrading of post — Precluded

(Staff Regulations, Art. 40(4) (d))

Article 40 (4) (d) of the Staff Regulations imposes an obligation on the Community institutions to reinstate an official whose leave on personal grounds has come to an end in the first post corresponding to his grade which falls vacant in his category or service, provided that he satisfies the requirements for that post. The concept of vacant post presupposes that there is a post to be filled, in other words a post that is not or will soon no longer be occupied, which is why it is ‘vacant’, in the sense that it is not occupied or must be filled, a situation that is remedied by appointing the future holder of the post in question in compliance with the rules and recruitment procedures provided for in Articles 4 and 29 of the Staff Regulations.

The upgrading of a post, which has resulted in its holder being promoted to a higher grade, is characterised by the absence of any ‘vacancy’ within the meaning described above, since the post occupied and its holder are the same before and after the upgrading.

(see paras 26, 28-29)

See: T-48/90 Giordani v Commission [1993] ECR II-721, para. 50; T-276/94 Buick v Commission [1995] ECRSC I-A-221 and II-667, para. 34
Case T-77/02

Schneider Electric SA

v

Commission of the European Communities

‛Competition — Regulation (EEC) No 4064/89 — Decision ordering separation of undertakings — Article 8(4) of Regulation No 4064/89 — Illegality of the decision declaring a concentration incompatible with the common market — Ensuing illegality of the divestiture decision’

Judgment of the Court of First Instance (First Chamber), 22 October 2002 II-4202

Summary of the Judgment

Competition — Concentrations — Decision ordering separation of undertakings — Decision having as its legal basis a decision declaring a concentration incompatible with the common market — Annulment of the incompatibility decision necessarily rendering the divestiture decision illegal

(Council Regulation No 4064/89, Art. 8(4))