ddrg/super_eurlex huggingface dataset:
Judgment of the Court (Tenth Chamber) of 23 April 2020 — Gugler France v Gugler and EUIPO

(Case C‑736/18 P) ( 1 )

(Appeal — EU trade mark — Figurative mark containing the word element GUGLER — Application for a declaration of invalidity brought by Gugler France SA — Economic link between the party seeking a declaration of invalidity and the proprietor of the contested mark — No likelihood of confusion)

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 — Economic link between the proprietors of the signs at issue

(Council Regulation No 207/2009, Art. 8(1)(b))

(see paras 34-37)

Operative part

The Court:

1. Dismisses the appeal;

2. Orders Gugler France SA to bear its own costs and to pay those incurred by Mr Alexander Gugler and by the European Union Intellectual Property Office (EUIPO) in relation to the appeal proceedings.

( 1 ) OJ C 112, 25.3.2019.
27

In addition, it should be made clear that, according to Article 38 of the Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession (COM(2009) 154 final), which led to the adoption of Regulation No 650/2012 and corresponds to Article 65 of that regulation, it was provided that the application for a certificate was required to be lodged via the form a model of which was provided in Annex I to that proposal. The change to the wording of Article 38 of the proposal to that in Article 65(2) of the regulation implies that, despite the intention of the Commission at an early stage in the legislative process to require the mandatory use of a form, that initial intention was not endorsed by the EU legislature. Accordingly, the legislative process in adopting Regulation No 650/2012 also confirms that it follows from the wording of Article 65(2) of that regulation that the use of Form IV, for the purposes of applying for a certificate, is optional.
13

On 1 October 2009, in order to increase its liquidity, Mydibel and two financial institutions entered into sale and lease back transactions, not subject to VAT, relating to those buildings, which were divided into two lots. For each lot, Mydibel and those financial institutions entered into two notarially certified agreements. First, Mydibel entered into an agreement establishing an emphyteutic right over those buildings in favour of the two financial institutions, for a period of 99 years, subject to immediate payment of emphyteutic rent in the amount of EUR 9630000 for the first lot and EUR 2700000 for the second lot, and an annual emphyteutic rent of EUR 25. Second, it entered into a real property leasing agreement in respect of the buildings, under which the financial institutions granted Mydibel the use of the buildings at issue for a non-revocable period of 15 years, in return for payment of a quarterly rent, corresponding to an investment value of EUR 9630000 for the first lot and EUR 2700000 for the second lot, plus interest. Under that agreement, Mydibel enjoys, on expiry of the lease, a purchase option at a price corresponding to 10% of the investment value for the first lot and 3% of that value for the second lot.
7

Under Article 11 of that directive: ‘1. Where the holder of a valid national driving licence issued by a Member State has taken up normal residence in another Member State, he may request that his driving licence be exchanged for an equivalent licence. It shall be for the Member State effecting the exchange to check for which category the licence submitted is in fact still valid. … 6. Where a Member State exchanges a driving licence issued by a third country for a Community model driving licence, such exchange shall be recorded on the Community model driving licence as shall any subsequent renewal or replacement. Such an exchange may occur only if the licence issued by the third country has been surrendered to the competent authorities of the Member State making the exchange. If the holder of this licence transfers his normal residence to another Member State, the latter need not apply the principle of mutual recognition set out in Article 2.’
32

In the light of all the foregoing, the answer to the question referred for a preliminary ruling is that the principles of legal certainty, equal treatment and transparency, as referred to in Directive 2014/24, must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, according to which failure to list the labour costs separately, in a financial tender submitted in a procedure for the award of public services, results in that tender being excluded without the possibility of supplementing or amending the tendering documentation, even where the obligation to list those costs separately was not set out in the tender documents, in so far as that requirement and that possibility of exclusion are clearly provided for by the national legislation on public procurement expressly referred to in those tender documents. However, if the provisions of the tender procedure do not enable the tenderers to list those costs in their financial tenders, the principles of transparency and proportionality must be interpreted as not precluding tenderers from being allowed to regularise their position and to comply with the obligations under the relevant national legislation within a period set by the contracting authority.
15

Article 247 of the LGSS, on the calculation of contribution periods, provides: ‘For the purposes of evidence of contribution periods necessary to provide an entitlement to retirement, permanent invalidity, death and survivor, temporary invalidity, maternity and paternity benefits, the following rules shall apply: (a) The various periods during which a worker has been affiliated on a part-time contract shall be taken into account, whatever the duration of the period of work carried in each of those periods. To that effect, the reduction factor relative to part-time work, which shall be determined according to the percentage which the time of part-time work carried out bears to the time of work carried out by a comparable full-time worker, shall be applied to the affiliation period covering employment on a part-time contract, the result being the number of days for which contributions shall be considered to have been actually made for each period. Where necessary, there should be added, to the number of days resulting from that calculation, the full-time days of contribution, the result being the total number of days of contributions that are to be taken into account with respect to access to benefits. (b) Once the attested number of days of contributions is determined, the overall reduction factor relative to part-time work shall be calculated, that factor corresponding to the percentage represented by the ratio of the number of days worked and taken into account as contribution days, in accordance with the provisions of the preceding point (a), to the total number of days of affiliation throughout the worker’s working life … (c) The minimum contribution period required of part-time workers for each of the financial benefits for which such a period is fixed shall be arrived after the general application to the period concerned of the overall reduction factor relative to part-time work mentioned in point (b). In circumstances in which, for the purposes of access to the corresponding financial benefit, there is a requirement that all or part of the minimum contribution period requested should fall within a specified time frame, the overall reduction factor relative to part-time work shall be applied to fix the contribution period that may be required. The time frame within which the period to be required will have to fall shall, in any event, be that established generally for the benefit concerned.’
3

Recitals 1, 4, 24 and 25 of Directive 2014/24 state: ‘(1) The award of public contracts by or on behalf of Member States’ authorities has to comply with the principles of the Treaty on the Functioning of the European Union (TFEU), and in particular the free movement of goods, freedom of establishment and the freedom to provide services, as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. However, for public contracts above a certain value, provisions should be drawn up coordinating national procurement procedures so as to ensure that those principles are given practical effect and public procurement is opened up to competition. … (4) The increasingly diverse forms of public action have made it necessary to define more clearly the notion of procurement itself; that clarification should not however broaden the scope of this Directive compared to that of Directive 2004/18/EC [of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114)]. The Union rules on public procurement are not intended to cover all forms of disbursement of public funds, but only those aimed at the acquisition of works, supplies or services for consideration by means of a public contract. … … (24) It should be recalled that arbitration and conciliation services and other similar forms of alternative dispute resolution are usually provided by bodies or individuals which are agreed on, or selected, in a manner which cannot be governed by procurement rules. It should be clarified that this Directive does not apply to service contracts for the provision of such services, whatever their denomination under national law. (25) A certain number of legal services are rendered by service providers that are designated by a court or tribunal of a Member State, involve representation of clients in judicial proceedings by lawyers, must be provided by notaries or are connected with the exercise of official authority. Such legal services are usually provided by bodies or individuals designated or selected in a manner which cannot be governed by procurement rules, such as for instance the designation of State Attorneys in certain Member States. Those legal services should therefore be excluded from the scope of this Directive.’
3

In accordance with recitals 5, 6, 10, 12, 13 and 16 of Regulation No 805/2004: ‘(5) The concept of “uncontested claims” should cover all situations in which a creditor, given the verified absence of any dispute by the debtor as to the nature or extent of a pecuniary claim, has obtained either a court decision against that debtor or an enforceable document that requires the debtor’s express consent, be it a court settlement or an authentic instrument. (6) The absence of objections from the debtor as stipulated in Article 3(1)(b) can take the shape of default of appearance at a court hearing or of failure to comply with an invitation by the court to give written notice of an intention to defend the case. … (10) Where a court in a Member State has given judgment on an uncontested claim in the absence of participation of the debtor in the proceedings, the abolition of any checks in the Member State of enforcement is inextricably linked to and dependent upon the existence of a sufficient guarantee of observance of the rights of the defence. … (12) Minimum standards should be established for the proceedings leading to the judgment in order to ensure that the debtor is informed about the court action against him, the requirements for his active participation in the proceedings to contest the claim and the consequences of his non-participation in sufficient time and in such a way as to enable him to arrange for his defence. (13) Due to differences between the Member States as regards the rules of civil procedure and especially those governing the service of documents, it is necessary to lay down a specific and detailed definition of those minimum standards. In particular, any method of service that is based on a legal fiction as regards the fulfilment of those minimum standards cannot be considered sufficient for the certification of a judgment as a European Enforcement Order. … (16) Article 15 should apply to situations where the debtor cannot represent himself in court, as in the case of a legal person, and where a person to represent him is determined by law as well as situations where the debtor has authorised another person, in particular a lawyer, to represent him in the specific court proceedings at issue.’
82

In that regard, it should be noted, first, that the appellant does not rely on any specific part of EUIPO guidelines to the effect that EUIPO informed the public that it considered it unnecessary for a mark consisting of a combination of colours to be systematically arranged by associating those colours in a predetermined and uniform way. Secondly, as noted by the General Court in paragraph 132 of the judgment under appeal, the fact that the examiner of EUIPO sought additional clarifications in respect of the marks at issue cannot be regarded as constituting a precise and unconditional assurance given by EUIPO to the appellant that the graphic representations of those marks were sufficiently precise. On the contrary, the examiner’s conduct indicated instead that, in EUIPO’s opinion, those signs were not sufficiently precise to be capable of meeting the requirements of Article 7(1)(a) of Regulation No 207/2009. Thirdly, the fact that the marks at issue were initially registered by EUIPO was not such as to bind EUIPO in future, since, as the General Court noted, in essence, in paragraph 133 of the judgment under appeal, the registration of a mark does not preclude that mark being declared invalid if it was registered in breach of one of the absolute grounds for refusal provided for in Article 7 of that regulation. An interpretation to the contrary would have the effect of depriving the provisions of Article 52 of Regulation No 207/2009 of any effect.
6

Article 16 of that directive, entitled ‘Early repayment’, provides: ‘1. The consumer shall be entitled at any time to discharge fully or partially his obligations under a credit agreement. In such cases, he shall be entitled to a reduction in the total cost of the credit, such reduction consisting of the interest and the costs for the remaining duration of the contract. 2. In the event of early repayment of credit the creditor shall be entitled to fair and objectively justified compensation for possible costs directly linked to early repayment of credit provided that the early repayment falls within a period for which the borrowing rate is fixed. Such compensation may not exceed 1% of the amount of credit repaid early, if the period of time between the early repayment and the agreed termination of the credit agreement exceeds 1 year. If the period does not exceed 1 year, the compensation may not exceed 0.5% of the amount of credit repaid early. 3. Compensation for early repayment shall not be claimed: (a) if the repayment has been made under an insurance contract intended to provide a credit repayment guarantee; (b) in the case of overdraft facilities; or (c) if the repayment falls within a period for which the borrowing rate is not fixed. 4. Member States may provide that: (a) such compensation may be claimed by the creditor only on condition that the amount of the early repayment exceeds the threshold defined by national law. That threshold shall not exceed EUR 10000 within any period of 12 months; (b) the creditor may exceptionally claim higher compensation if he can prove that the loss he suffered from early repayment exceeds the amount determined under paragraph 2. If the compensation claimed by the creditor exceeds the loss actually suffered, the consumer may claim a corresponding reduction. In this case, the loss shall consist of the difference between the initially agreed interest rate and the interest rate at which the creditor can lend out the amount repaid early on the market at the time of early repayment, and shall take into account the impact of early repayment on administrative costs. 5. Any compensation shall not exceed the amount of interest the consumer would have paid during the period between the early repayment and the agreed date of termination of the credit agreement.’
19

In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Can the third paragraph of Article 1(1) and Article 1(3) of Directive [89/665] be interpreted as allowing, where several undertakings have participated in the tendering procedure and have not been joined to the legal proceedings (and in any event no objection has been lodged in respect of the tenders submitted by some of them), it to be left to the court concerned, by virtue of the procedural autonomy accorded to the Member States, to assess whether the interest claimed in the main action by the candidate against whom an “excluding” counterclaim, considered to be well founded, has been brought, is a vested interest, using the procedural instruments available to it under the national legal order and thus ensuring that the protection of that subjective position is in line with the consolidated national principles: (i) that the court must address all the parties’ claims but can grant only the relief sought by them (Article 112 of the Code of Civil Procedure); (ii) relating to proof of the interest alleged (Article 2697 of the Civil Code); and (iii) that a judgment having the force of res judicata has effect only as between the parties to the proceedings and cannot concern the position of persons not involved in the dispute (Article 2909 of the Civil Code)?’
26

In those circumstances, the Bundesfinanzhof (Federal Finance Court) decided to stay the proceedings and to refer the following questions, which are worded identically in Cases C‑573/18 and C‑574/18, to the Court of Justice for a preliminary ruling: ‘(1) Under circumstances such as those of the main proceedings, in which a producer organisation within the meaning of Article 11(1) and Article 15 of Regulation [No 2200/96] supplies goods to the producers that are its members and receives for this from the producers a payment which does not cover the purchase price, (a) is an exchange with a cash supplement deemed to exist because the producers, in return for the supply, have contractually undertaken vis-à-vis the producer organisation to deliver fruit and vegetables to the producer organisation for the duration of the earmarking period, with the consequence that the taxable amount of the supply is the purchase price for the capital goods paid by the producer organisation to the upstream suppliers? (b) is the entirety of the amount which the operational fund actually pays to the producer organisation for the supply a “subsidy directly linked to the price of such supplies” within the meaning of Article 11A(1)(a) of the Sixth Directive …, with the consequence that the taxable amount also encompasses the financial assistance within the meaning of Article 15 of Regulation No 2200/96 which has been granted to the operational fund by the competent authorities on the basis of an operational programme? (2) If, on the basis of the answer to question 1, only the payments made by the producers, but not the supply obligation and the financial assistance, are to be taken as the taxable amount: under the circumstances specified in question 1, does Article 11A(1)(a) of the [Sixth Directive] preclude a national special measure based on Article 27(1) of the [Sixth Directive] such as Paragraph 10(5)(1) of the UStG, according to which the taxable amount of the supplies to the producers is the purchase price for the capital goods paid by the producer organisation to the upstream suppliers because the producers are related parties? (3) If question 2 is answered in the negative: is this also the case if the producers have a full right of deduction because the capital goods are subject to adjustments of deductions (Article 20 of the [Sixth Directive])?’
29

The referring court states that the national rule requiring the collection, recording and retention of the biometric data of third-country nationals in a central filing system constitutes a ‘new restriction’ within the meaning of Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80. It notes that, in accordance with the Court’s case-law, such a restriction is prohibited unless it is justified by an overriding reason in the public interest, is appropriate for ensuring the attainment of the legitimate objective pursued and does not go beyond what is necessary to attain it. In that context, departing from the assumption that that rule pursues a legitimate objective and is suitable for achieving it, the referring court questions whether the collection, recording and retention of the biometric data of third-country nationals in a central filing system, as provided for by that rule, do not go beyond what is necessary to achieve the objective of preventing and combating identity and document fraud. According to the referring court, in so far as the taking and processing of biometric data constitute processing of personal data within the meaning of Article 2(b) of Directive 95/46 and in so far as such data fall within a special category of data within the meaning of Article 8(1) of that directive, derogations from and limitations on the protection of such data must apply only in so far as is strictly necessary, in accordance with the case-law of the Court following the judgment of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 96).