ddrg/super_eurlex huggingface dataset:
Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Granting of market economy operator status — Conditions — Burden of proof on producers — Assessment of the evidence by the institutions — Judicial review — Limits

(Council Regulation No 1225/2009, Art. 2(1) to 6 and 7(a), (b) and (c))

(see paras 35-38)
Judgment of the General Court (Eighth Chamber) of 15 June 2022 –

Schaffrin v Commission

(Case T‑538/16)

(Civil service – Officials – 2014 reform of the Staff Regulations – Reimbursement of annual travel expenses – Place of origin located in a third country – Flat-rate payment calculated on the basis of the distance separating the place of employment from the capital of the Member State of which the official is a national)

Officials – Reimbursement of expenses – Annual travel expenses – Reform of the Staff Regulations – Discretion of the EU legislature – Application of different methods of calculation to officials with their place of origin within the European Union and those with a place of origin outside the European Union – Whether permissible – No infringement of the principles of legal certainty, equal treatment and proportionality

(Charter of Fundamental Rights of the European Union, Art. 20; Staff Regulations of Officials, as amended by Regulation No 1023/2013, Annex VII, Art. 8)

(see paras 31-35, 39, 41-60)

Operative part

The Court:

1. Dismisses the action;

2. Orders Dora Schaffrin to bear her own costs and to pay those incurred by the European Commission;
9

By decision of 18 January 2016 (‘the contested decision’), the Fourth Board of Appeal of EUIPO upheld the appeal and annulled the Cancellation Division’s decision. In the first place, the Board of Appeal found that, since the conditions of Article 8(3) of Regulation No 207/2009 were not fulfilled, the application for a declaration of invalidity based on Article 53(1)(b) of Regulation No 207/2009 could not succeed. On the one hand, according to the Board of Appeal, there was no evidence of an ‘agent-principal’ relationship between the parties, since the applicant had not explained on what basis the distribution agreement concluded in 2009, before the applicant was incorporated, between Endeavor Snowboards Inc. and sindustrysurf (‘the distribution agreement’), could establish such a relationship. In addition, the Board of Appeal stated that there was no reference to the contested mark in that agreement. On the other hand, the Board of Appeal found there was no evidence that the applicant had not consented to the filing of the contested mark. In the second place, the Board of Appeal found that the application for a declaration of invalidity based on Article 52(1)(b) of Regulation No 207/2009 could also not succeed, since nothing in sindustrysurf’s behaviour at the time of filing the contested mark suggested that it had acted in bad faith. First, the Board of Appeal found that the contested mark had been filed with the applicant’s consent. Secondly, it took the view that the fact that sindustrysurf knew, at the time of filing the contested mark, that that mark was already in use by the applicant and other distributors was not in itself sufficient to establish bad faith on its part. Thirdly, it found that there was no evidence that sindustrysurf had filed the contested mark in its own name with the intention of using it against the applicant.
55

However, it must be stated that, in the present case, there are remarkable similarities between the earlier design and the contested design. The latter may be perceived, to a certain extent, as a creation inspired by the idea of the Chanel monogram, particularly because the choice of the contested design was not in any way determined by any considerations and because its designer did not sufficiently differentiate that design from the Chanel monogram. Consequently, for the purposes of determining whether the designs at issue produce a different overall impression, it must be held that the informed user will perceive those designs as a whole. Even though there are differences between the central parts of the two designs, the fact remains that the overall impression is not different, since the outer parts, which considerably determine the outline and overall impression produced by the designs at issue, are highly similar and almost identical. Furthermore, the central parts, even though there are some differences between them, both consist of similar oval shapes which dissolve into the overall image of the designs. In particular, the central part of the contested design consists of two ellipses which are similar to the single ellipse in the Chanel monogram. Those differences are particularly unlikely to be noticed by the informed user because it is possible to use the contested design with a 90 degree variation in orientation and in various sizes.
66

It should be noted in this regard that, although the Commission is not bound by the Trustee’s Opinion, it is nevertheless required, in principle, to take it into account, particularly since the Commission itself asked the Trustee for an opinion, the first time on 16 June 2014 and the second time on 5 April 2016. In recitals 30 to 46 of the contested decision, which set out the Commission’s appraisal of the termination of the JV Agreement, the Commission not only fails to analyse the assessment contained in those opinions, but also fails even to mention them. In addition, the summary, in recitals 27 and 29 of the contested decision, does not accurately reflect the Opinions of the Trustee as lodged by the Commission as annexes to the defence. First, contrary to what is stated in recital 27 of the contested decision, the Trustee, in his Opinion of 27 June 2014, did not consider that the question whether the substantial market change arising from termination of the JV Agreement between Lufthansa and SAS concerning the ZRH-STO route would justify a waiver of the commitments exceeded his mandate. Rather, he considered that it was the question whether the Commission had, in the 2005 Decision, based its appraisal in respect of the relationship between Lufthansa and LOT on its legal practice at the time or on an assumption, as regards the ZRH-WAW route, which would go beyond that mandate. Second, whilst, according to recital 29 of the contested decision, on 3 May 2016, the Trustee amended his initial Opinion and stated that he had not become aware of any exceptional circumstances within the meaning of review clause 15.1 on either the ZRH-STO or the ZRH-WAW routes, it should be pointed out that the document of 3 May 2016 comprised not the Trustee’s second Opinion but answers to a series of questions relating to review clause 15.1 and not to review clause 15.2. On the contrary, in his second Opinion, which is dated 13 April 2016, the Trustee –– as the Commission has expressly stated in its defence –– essentially reiterated the previous conclusions of 27 June 2014 and clarified that business tariffs on the two routes had also fallen significantly after the introduction of new tariffs. Nor did the Commission examine in the contested decision the significance and impact of termination of the JV Agreement, although it was a key element of the cooperation between Swiss and SAS.
5

By letter of 7 September 2013, the applicant submitted to the Commission a request for a partial interim review, limited to dumping aspects, under Article 11(3) of the basic regulation (now Article 11(3) of Regulation 2016/1036). The grounds substantiating that request were, first, a new distribution system implemented by the applicant that included the establishment of a related company and, second, the introduction of a new product type that did not exist during the period between 1 April 2009 and 31 March 2010 (‘the investigation period’). The applicant stated in its request for a review that it had not participated in the original investigation since it did not know the final destination of its goods, which it sold during the investigation period solely to one Chinese trading company. In so far as it claimed that it had not exported the goods in question to the European Union during the investigation period, the Commission’s services drew the applicant’s attention to the fact that, if that claim were true, the appropriate legal way for being attributed the rate of duty of 30.6% was to request new exporting producer treatment (‘NEPT’) in accordance with Article 3 of the definitive regulation. That provision reads as follows: ‘Where any [Chinese producer] provides sufficient evidence to the Commission that it did not export the goods described in Article 1(1) originating in [China] during the period of investigation (1 April 2009 to 31 March 2010), that it is not related to an exporter or producer subject to the measures imposed by this Regulation and that it has either actually exported the goods concerned or has entered into an irrevocable contractual obligation to export a significant quantity to the Union after the end of the period of investigation, the Council, acting by simple majority on a proposal by the Commission, after consulting the Advisory Committee, may amend Article 1(2) in order to attribute to that producer the duty applicable to cooperating producers not in the sample, i.e. 30.6%.’
67

In answer to the third plea, the ECB maintains, in particular, that it did not make any manifest error of assessment when adopting the contested decision. In that regard, it claims that the contested decision is consistent with the objectives of the legislature as shown in recital 95 of Regulation No 575/2013, since the applicant does not have a specialised business model. The ECB maintains that it did not rely on the fact that the exposures to the CDC remain on the credit institutions’ balance sheets, but merely pointed to that fact, as a ‘first indication’. It adds that the fact that the exposures to the CDC are treated as exposures to the French State and weighted at 0% risk for the purposes of the own-fund requirements is not relevant to the calculation of the leverage ratio and observes that the markets may suddenly lose confidence in investments that are normally deemed to be very safe. The ECB also maintains that the period for the adjustment of the applicant’s and the CDC’s relative positions gives rise to a risk of additional leverage. As the applicant is unable to call upon the CDC during that period, it might be led, when faced with withdrawals of the savings collected, to reduce its leverage by means of potential forced sales, sources of significant losses for it. It adds that, although that risk of excessive leverage begins with a liquidity shortage, it is distinguished from a liquidity shortage in that it is based on the relative significance of the debt-funded exposures by comparison with a credit institution’s own funds. Last, it denies that there is any inconsistency between the contested decision and its decision of 15 August 2016 on the calculation of the liquidity ratio granting the applicant the authorisation which it sought, since those decisions relate to prudential measures, which are admittedly linked, but different, and claims that the leverage ratio aims to avoid a credit institution’s financial sources being excessively debt-oriented and constitutes the ‘ultimate prudential safety net’.
28

As regards the complaint based on the lack of competence of the author of the contested decisions, the Commission submits that it delegated the power to appoint the mediator to its President under Article 6(3) of the decision on the reinforced Mediation Service. There is nothing to prevent the Commission from exercising that power itself in a particular case where, as in the present case, it assumes the role of appointing authority on account of the grade attached to the post to be filled, in accordance with its Decision C(2013) 3288 final of 4 June 2013 on the exercise of powers conferred by the Staff Regulations on the appointing authority (AIPN) and by the Conditions of Employment of Other Servants on the authority empowered to conclude contracts of employment (AHCC). The Commission adds that that decision led to an implied specific amendment of the decision on the reinforced Mediation Service. In any event, the applicant has not demonstrated that she has suffered damage as a result of the adoption of the contested decisions by the College of Commissioners. Furthermore, Article 6(3) of the decision on the reinforced Mediation Service does not require the Commission to consult the Central Staff Committee in connection with all applications that are initially successful. According to the Commission, it is clear from that provision that the Central Staff Committee must be consulted solely in relation to the proposal submitted to the President of the Commission by the Director-General of the DG for Human Resources and Security, which that committee seems itself to accept.
3

Article 70 of Regulation No 806/2014, headed ‘Ex-ante contributions’, provides: ‘1. The individual contribution of each institution shall be raised at least annually and shall be calculated pro rata to the amount of its liabilities (excluding own funds) less covered deposits, with respect to the aggregate liabilities (excluding own funds) less covered deposits, of all of the institutions authorised in the territories of all of the participating Member States. 2. Each year, the Board shall, after consulting the ECB or the national competent authority and in close cooperation with the national resolution authorities, calculate the individual contributions to ensure that the contributions due by all of the institutions authorised in the territories of all of the participating Member States shall not exceed 12.5% of the target level. Each year the calculation of the contributions for individual institutions shall be based on: (a) a flat contribution, that is pro rata based on the amount of an institution’s liabilities excluding own funds and covered deposits, with respect to the total liabilities, excluding own funds and covered deposits, of all of the institutions authorised in the territories of the participating Member States; and (b) a risk-adjusted contribution, that shall be based on the criteria laid down in Article 103(7) of Directive 2014/59/EU, taking into account the principle of proportionality, without creating distortions between banking sector structures of the Member States. The relation between the flat contribution and the risk-adjusted contributions shall take into account a balanced distribution of contributions across different types of banks. In any case, the aggregate amount of individual contributions by all of the institutions authorised in the territories of all of the participating Member States, calculated under points (a) and (b), shall not exceed annually … 12.5% of the target level. … 6. The delegated acts specifying the notion of adjusting contributions in proportion to the risk profile of institutions, adopted by the Commission under Article 103(7) of Directive 2014/59/EU, shall be applied. 7. The Council, acting on a proposal from the Commission, shall, within the framework of the delegated acts referred to in paragraph 6, adopt implementing acts to determine the conditions of implementation of paragraphs 1, 2 and 3, and in particular in relation to: (a) the application of the methodology for the calculation of individual contributions; (b) the practical modalities for allocating to institutions the risk factors specified in the delegated act.’
Judicial proceedings—Application initiating proceedings—Formal requirements—Identification of the subject-matter of the dispute—Brief summary of the pleas in law on which the application is based

(Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 177(1)(d))

(see para. 15)
Judgment of the General Court (Eighth Chamber) of 15 March 2018 — Marriott Worldwide v EUIPO — Graf (Representation of a winged bull)

(Case T‑151/17)

(EU trade mark — Invalidity proceedings — EU figurative mark representing a winged bull — Earlier EU and national figurative marks representing a griffin — Relative ground for refusal — Similarity of the signs — Article 53(1)(a) and Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 60(1)(a) and Article 8(1)(b) of Regulation (EU) 2017/1001) — Earlier copyright protected by national law — Article 53(2)(c) of Regulation No 207/2009 (now Article 60(2)(c) of Regulation 2017/1001) — Examination of the facts of the Office’s own motion — Article 76(1) of Regulation No 207/2009 (now Article 95(1) of Regulation 2017/1001))

1. EU trade mark—Appeals procedure—Appeal brought against a decision of a unit of the Office ruling at first instance and referred to the Board of Appeal—Functional continuity between those two bodies—Examination of the appeal by the Board of Appeal—Scope (Council Regulation No 207/2009, Art. 76) (see para. 15)

2. EU trade mark—Procedural provisions—Examination of the facts of the Office’s own motion—Invalidity proceedings concerning absolute grounds for refusal—Examination restricted to the submissions of the parties (Council Regulation No 207/2009, Art. 76(1)) (see para. 16)

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—Likelihood of confusion with the earlier mark—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 30, 31)

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—Similarity of the marks concerned—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 34)

5. EU trade mark—Surrender, revocation and invalidity—Relative grounds for invalidity—Existence of an identical or similar earlier mark registered for identical or similar goods or services—Likelihood of confusion with the earlier mark—Figurative mark representing a winged bull and figurative marks representing a griffin (Council Regulation No 207/2009, Arts 8(1)(b) and 53(1)(a)) (see paras 36-39, 42-45)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 17 January 2017 (Case R 165/2016-4), relating to invalidity proceedings between Marriott Worldwide and Mr Graf.

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 17 January 2017 (Case R 165/2016-4);

2. Orders EUIPO to bear its own costs and to pay those incurred by Marriott Worldwide Corp.;
Judgment of the General Court (Eighth Chamber) of 30 May 2018 –

RT v Parliament

(Case T‑98/17)

(Civil service — Officials — Sick leave — Article 59(1) of the Staff Regulations — Internal rules on medical examinations in connection with absence from work on medical grounds and periodic medical examinations of persons claiming the invalidity allowance — Medical certificate — No doctor’s stamp or signature — Long-distance medical consultation via the internet — Refusal to accept)

Officials—Sick leave—Evidence of illness—Production of a medical certificate—Procedures—No doctor’s stamp or signature—Long-distance medical consultation via the internet—Admissibility of a certificate

(Staff Regulations, Art. 59(1))

(see paras 36-38)

Re:

Application under Article 270 TFEU seeking annulment of the decision of the Parliament of 30 June 2016 rejecting a document submitted by the applicant on 27 June 2016 as inadmissible as a medical certificate prescribing sick leave.

Operative part

The Court:

1. Annuls the decision of the European Parliament of 30 June 2016 rejecting the document submitted by RT on 27 June 2016 as inadmissible as a medical certificate prescribing sick leave;
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 paras 65-67)
Judgment of the General Court (Fourth Chamber) of 25 April 2018 –

Romantik Hotels & Restaurants v EUIPO — Hotel Preidlhof (ROMANTIK)

(Case T‑213/17)

(EU trade mark — Invalidity proceedings — EU word mark ROMANTIK — Absolute ground for refusal — No distinctive character — No distinctive character acquired through use — Article 7(1)(b) and (3) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and (3) 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—Assessment of distinctive character—Criteria (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 16-18)

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 19, 20)

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—Slogan with a fantasy character (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 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—Flattering promotional formula (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 22)

5. EU trade mark—Surrender, revocation and invalidity—Absolute grounds for invalidity—Registration contrary to Article 7(1)(c) of Regulation No 207/20091—Word mark ROMANTIK (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 25, 31, 34)

6. 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. 39)

7. EU trade mark—Decisions of the Office—Principle of equal treatment—Principle of sound administration—EUIPO’s previous decision-making practice (Council Regulation No 207/2009) (see para. 41)

8. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Exception—Distinctive character acquired through use—Criteria for assessment (Council Regulation No 207/2009, Art. 7(3)) (see paras 45-50)

9. EU trade mark—Appeals procedure—Action before the EU judicature—Legality of a decision issued by EUIPO’s Board of Appeal adjudicating in invalidity proceeding—Challenged by the adducing of new facts—Not permissible (Council Regulation No 207/2009, Art. 65) (see para. 60)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 3 February 2017 (Case R 1257/2016-4), concerning invalidity proceedings between Hotel Preidlhof and Romantik Hotels & Restaurants.

Operative part

The Court:

1. Dismisses the action;