ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Sixth Chamber) of 16 April 2015 —

Matratzen Concord v OHIM — KBT (ARKTIS)

(Case T‑258/13)

‛Community trade mark — Revocation proceedings — Community word mark ARKTIS — Genuine use of the mark — Article 51(1)(a) of Regulation (EC) No 207/2009 — Form of use of the mark — Proof of use for the registered goods — Consent of the trade mark owner’

1. Community trade mark — Surrender, revocation and invalidity — Causes of revocation — No genuine use of a trade mark — Proof of use of the earlier mark — Genuine use — Concept — Criteria for assessment (Council Regulation No 207/2009, Art. 51(1)(a)) (see paras 13-15, 33)

2. Community trade mark — Appeals procedure — Appeal against a decision of the Opposition Division of OHIM — Examination by the Board of Appeal — Scope (Council Regulation No 207/2009, Arts 15(2), and 51(1)(a)) (see para. 37)

3. Community trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Use by a third party with the consent of the trade mark proprietor — Express or implied consent (Council Regulation No 207/2009, Art. 15(1) and (2)) (see paras 39, 40)

4. Community trade mark — Appeals procedure — Action before the EU judicature — Modification of the terms of the dispute as brought before the Board of Appeal — Not permissible (Rules of Procedure of the General Court, Art. 135(4); Council Regulation No 207/2009, Art. 65) (see para. 46)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 4 March 2013 (Case R 2133/2011-4) relating to revocation proceedings between Matratzen Concord GmbH and KBT & Co. Ernst Kruchen agenzia commerciale sociétá in accomandita.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Sixth Chamber) of 18 March 2015 — Intermark v OHIM — Coca-Cola (RIENERGY Cola)

(Case T‑384/13)

‛Community trade mark — Opposition proceedings — Application for the Community figurative mark RIENERGY Cola — Earlier Community figurative mark Coca-Cola and earlier Community word mark COCA-COLA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009’

1. Community trade mark — Definition and acquisition of the Community 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 25, 28)

2. Community trade mark — Definition and acquisition of the Community 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 paras 26, 33)

3. Community trade mark — Definition and acquisition of the Community 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 — Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 27)

4. Community trade mark — Definition and acquisition of the Community 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 — Figurative mark RIENERGY Cola — Figurative mark Coca-Cola and word mark COCA-COLA (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 43-45)

5. Community trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — OHIM’s previous decision-making practice (see para. 47)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 6 May 2013 (Case R 1116/2012‑2), relating to opposition proceedings between The Coca-Cola Company and Intermark Srl.

Operative part

The Court:

1. Dismisses the action;
2.

Community trade mark — Definition and acquisition of the Community 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 — Refusal to register on a ground relating to refusal even limited to part of the Union (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 18)
JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

23 April 2015

BX

v

European Commission

‛Appeal — Civil service — Recruitment — Notice of competition — Open competition — Constitution of a reserve pool of Administrators (AD 5) of Bulgarian and Romanian citizenship in the field of Law — Selection board’s decision not to include the appellant on the reserve list — Burden of proof — Comparative assessment — Equal treatment — Stability in the composition of the selection board — Fifth paragraph of Article 3 of Annex III to the Staff Regulations — Distortion of the facts and evidence — Action for damages — Decision as to costs’

Appeal

:

against the judgment of the European Union Civil Service Tribunal (First Chamber) of 24 April 2013 in BX v Commission (F‑88/11, ECR-SC, EU:F:2013:51), seeking to have that judgment set aside.

Held

:

The appeal is dismissed. Mr BX is to bear his own costs and is ordered to pay those incurred by the European Commission in the course of the present proceedings.

Summary

Appeals — Grounds — Ground of appeal raised against a ground of the judgment not necessary in order for the operative part to be founded — Ground of appeal ineffective Officials — Competitions — Assessment of candidates’ abilities — Necessarily a comparative assessment (Staff Regulations, Art. 27, and Annex III, Art. 5) Officials — Competitions — Selection board — Composition — Balanced representation of men and women (Staff Regulations, Annex III, Art. 3, fifth para.) Actions for annulment — Pleas in law — Ineffective plea — Definition
Judgment of the General Court (Fourth Chamber) of 30 June 2015 —

Netherlands and Others v Commission

(Joined Cases T‑186/13, T‑190/13 and T‑193/13)

‛State aid — Sale of land — Aid granted to Schouten-de Jong Bouwfonds by a public-private partnership set up by the Municipality of Leidschendam-Voorburg — Reduction in the sale price of land and retroactive exemption from payment of the fees payable for its exploitation and quality — Decision declaring the aid incompatible with the common market and ordering its recovery — Concept of aid — Private-investor test — Assessment of all factors relevant to the transaction at issue and its context’

1. State aid — Concept — Grant of advantages imputable to the State — Public authorities involved in the adoption of the measure (Art. 107(1) TFEU) (see para. 64)

2. State aid — Concept — Aid from State resources (Art. 107(1) TFEU) (see paras 65-72)

3. State aid — Concept — Assessment according to the criterion of the private investor — Assessment having regard to all relevant factors of the disputed operation and its context — Sale of a plot by a public authority on preferential terms — Criteria for assessment — No advantage for the beneficiary — Exclusion (Art. 107(1) TFEU) (see paras 73-82, 85-88, 97, 102, 104, 107, 108, 111-114, 124-128, 131, 132)

4. State aid — Concept — Assessment according to the criterion of the private investor — Complex evaluation of economic matters — Discretion of the Commission — Judicial review — Limits (Art. 107(1) TFEU) (see paras 89, 91, 130)

5. State aid — Commission decision — Assessment of legality by reference to the information available at the time of adoption of the decision (Art. 107(1) TFEU) (see para. 90)

Re:

ACTION for annulment of Commission Decision C(2013) 87 of 23 January 2013 on State aid SA.24123 (2012/C) (ex 2011/NN) implemented by the Netherlands — Alleged sale of land below market price by the Municipality of Leidschendam-Voorburg.

Operative part

The Court:

1. Annuls Commission Decision C(2013) 87 of 23 January 2013 on State aid SA.24123 (2012/C) (ex 2011/NN) implemented by the Netherlands — Alleged sale of land below market price by the Municipality of Leidschendam-Voorburg;
Judgment of the General Court (Fifth Chamber) of 7 October 2015 —

Bilbaína de Alquitranes and Others v Commission

(Case T‑689/13)

‛Environment and protection of human health — Classification of pitch, coal tar, high-temperature, in the categories of acute aquatic toxicity and chronic aquatic toxicity — Regulation (EC) No 1907/2006 and Regulation (EC) No 1272/2008 — Manifest error of assessment — Classification of a substance on the basis of its constituents’

1. Approximation of laws — Classification, packaging and labelling of substances and mixtures — Regulation No 1272/2008 — Adaption to scientific and technical progress — Classification of pitch, coal tar, high-temperature amongst substances of aquatic toxicity — Discretion of the EU authorities — Scope — Judicial review — Limits (European Parliament and Council Regulation No 1272/2008, as amended by Regulation No 944/2013, Annex VI, Tables 3.1 and 3.2) (see paras 23, 24)

2. Approximation of laws — Classification, packaging and labelling of substances and mixtures — Regulation No 1272/2008 — Adaption to scientific and technical progress — Classification of pitch, coal tar, high-temperature amongst substances of aquatic toxicity — Classification on the basis of the properties of constituents — Lawfulness — Condition — Account taken of the level of the presence of the constituents concerned and their chemical effects (European Parliament and Council Regulation No 1272/2008, as amended by Regulation No 944/2013, first recital, Arts 1(1), and 10(1), and Annexes I, point 4.1.1.1, and VI, Tables 3.1 and 3.2) (see paras 28-30)

Re:

APPLICATION for the partial annulment of Commission Regulation (EU) No 944/2013 of 2 October 2013 amending, for the purposes of its adaptation to technical and scientific progress, Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures (OJ 2013 L 261, p. 5), in so far as it classifies pitch, coal tar, high-temp. (EC No 266-028-2) as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance.

Operative part

The Court:

1. Annuls Commission Regulation (EU) No 944/2013 of 2 October 2013 amending, for the purposes of its adaptation to technical and scientific progress, Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures in so far as it classifies pitch, coal tar, high-temp. (EC No 266-028-2) as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance;

2. Orders the European Commission to bear its own costs and to pay those of Bilbaína de Alquitranes, SA, Deza, a.s., Industrial Química del Nalón, SA, Koppers Denmark A/S, Koppers UK Ltd, Koppers Netherlands BV, Rütgers basic aromatics GmbH, Rütgers Belgium NV, Rütgers Poland Sp. z o.o., Bawtry Carbon International Ltd, Grupo Ferroatlántica, SA, SGL Carbon GmbH (Germany), SGL Carbon GmbH (Austria), SGL Carbon, SGL Carbon, SA, SGL Carbon Polska SA, ThyssenKrupp Steel Europe AG, Tokai erftcarbon GmbH and GrafTech Iberica, SL;
The Commission is not entitled, when managing the common agricultural policy, to commit funds which fail to comply with the rules governing the common organisation of the markets in question and that the rule is of general application. Therefore, when the Commission finds that the accounts of paying agencies include expenditure effected in breach of the EU rules governing the common organisation of the market in question, it has the power to draw all the necessary consequences and thus to make financial corrections to the annual accounts of the paying agencies at the stage of its decision on clearance of the accounts pursuant to Article 30 of Regulation No 1290/2005, on the financing of the common agricultural policy.

In that regard, there can be no question of the Commission accepting a false declaration of intermediate expenditure for a rural development programme merely because it complies with formal requirements relating to the presentation of declarations laid down in Article 26(3) of Regulation No 1290/2005. The clearance of accounts decision gives the amounts that are recoverable from each Member State which are determined by deducting advances paid during the course of the financial year in question from the expenditure recognised for that year. Where the Commission finds that irregularities have occurred in the annual declaration of expenditure for any programme, it cannot recognise them as being chargeable to the EAFRD as part of the clearance of accounts and must therefore refuse financing of that expenditure pending any subsequent non-compliance decision.

Moreover, the Commission cannot be blamed for regarding expenses, in the decision to open the conformity clearance procedure, in accordance with Article 11(1) of Regulation No 885/2006 laying down detailed rules for the application of Regulation No 1290/2005, both as a problem examined in the clearance of accounts procedure and as a suspended amount. In accordance with Article 27(4) of Regulation No 1290/2005, decisions to suspend or reduce payments under paragraph 3 are to be made without prejudice to the decisions referred to in Articles 30 and 31 of that regulation. Moreover, according to Article 30(2) of that regulation, a decision adopted under Article 30 is to be without prejudice to decisions taken subsequently under Article 31 and concerning the expenditure to be excluded from EU financing where that expenditure was incurred in a way that infringed EU rules. It follows that, on adoption of the account clearance decision, the Commission may draw consequences from the deficiencies found in the quality of the accounts submitted, independently of the decision on conformity clearance.

(see paras 68, 82, 83, 89)
JUDGMENT OF THE GENERAL COURT (Appeal Chamber)

14 January 2016

Ioannis Ntouvas

v

European Centre for Disease Prevention and Control (ECDC)

‛Appeal — Civil service — Contract staff — Reports procedure — Career development report — 2010 appraisal procedure — Dismissal of the action at first instance — Time-limit for submission of the defence — Extension — Exceptional circumstances — Article 39(2) of the Rules of Procedure of the Civil Service Tribunal — Lawfulness of the appraisal procedure’

Appeal:

against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 11 December 2012 in Ntouvas v ECDC (F‑107/11, ECR-SC, EU:F:2012:182), seeking to have that judgment set aside.

Held:

The appeal is dismissed. Mr Ioannis Ntouvas is to pay the costs.

Summary

Appeal — Grounds of appeal — Ground directed against the Tribunal’s decision to extend the time-limit for lodging the defence — Admissibility (Art. 257 TFEU; Statute of the Court of Justice, Annex I, Art. 11(1)) Judicial proceedings — Lodging of the defence — Time-limit — Extension — Exceptional circumstances — Discretion of the President of the Civil Service Tribunal (Rules of Procedure of the Civil Service Tribunal, Art. 39(2))
Judgment of the General Court (Third Chamber) of 13 September 2016 —

ENAC v INEA

(Case T‑695/13)

‛Financial aid — Projects of common interest in the field of trans-European transport and energy networks — Realisation of a study for the intermodal development of Bergamo-Orio al Serio Airport — Determination of the final amount of the financial aid — Ineligible costs — Error of law — Obligation to state reasons’

1. Acts of the institutions — Statement of reasons — Obligation — Scope — Assessment of the duty to state reasons by reference to the circumstances of the case (Art. 296 TFEU) (see paras 29-31)

2. Approximation of laws — Procedures for awarding contracts in the water, energy, transport and postal services sectors — Directive 2004/17 — Public service contract — Definition — Engineering services concerning the carrying out of a study relating to a single public work — Unitary character of their economic and technical function — Inclusion — Severance of the services by the awarding authority — Not permissible (European Parliament and Council Directive 2004/17, Art. 17(2)) (see paras 47, 48, 50, 60)

3. EU law — Principles — Protection of legitimate expectations — Conditions — Specific assurances given by the authorities — Concept — Silence of the administration — Exclusion (see paras 76-78, 80)

4. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based (Rules of Procedure of the General Court, Art. 76(d)) (see para. 82)

5. Approximation of laws — Procedures for awarding contracts in the water, energy, transport and postal services sectors — Directive 2004/17 — Derogations from common rules — Conditions — Restrictive interpretation (European Parliament and Council Directive 2004/17, Art. 40(3)(c) and (d); Council Directive 93/38, Art. 20(2)(c) and (d)) (see paras 87, 93, 96, 97)

Re:

APPLICATION based on Article 263 TFEU and seeking annulment of the letters of 18 March and 23 October 2013 of the Trans-European Transport Network Executive Agency (TEN-TEA), now INEA, relating to certain costs incurred on the occasion of the completion of a feasibility study for the intermodal nature of the Bergame-Orio al Serio airport (Italy) following the financial assistance granted by the European Commission to the applicant.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fifth Chamber) of 15 December 2016 — Mondelez UK Holdings & Services v EUIPO — Société des produits Nestlé (Shape of a chocolate bar)

(Case T‑112/13)

(EU trade mark — Invalidity proceedings — Three-dimensional mark — Shape of a chocolate bar — Absolute ground for refusal — No distinctive character — Distinctive character acquired through use — Article 7(1)(b) and (3) of Regulation (EC) No 207/2009 — Article 52(1) and (2) of Regulation No 207/2009)

1. EU trade mark—Surrender, revocation and invalidity—Absolute grounds for invalidity—Registration contrary to Article 7(1)(b) of Regulation No 207/2009—Three-dimensional mark—Shape of a chocolate bar (Council Regulation No 207/2009, Arts 7(1)(b), and 52(1)(a)) (see paras 24, 25, 42-44, 58-61, 101, 117, 177, 178)

2. EU trade mark—Observations of third parties and opposition—Examination of the opposition—Proof of use of the earlier mark—Partial use—Effect—Concept of ‘parts of the products or services’ covered by the registration (Council Regulation No 207/2009, Art. 42(2) and (3)) (see paras 26, 27)

3. EU trade mark—Surrender, revocation and invalidity—Absolute grounds for invalidity—Registration contrary to Article 7(1)(b) of Regulation No 207/2009—Exception—Distinctive character acquired through use—Burden of proof (Council Regulation No 207/2009, Arts 7(1)(b), and 52(1)(a)) (see paras 55, 76)

4. EU trade mark—Surrender, revocation and invalidity—Absolute grounds for invalidity—Registration contrary to Article 7(1)(b) of Regulation No 207/2009—Exception—Distinctive character acquired through use—Criteria for assessment (Council Regulation No 207/2009, Art. 7(3)) (see paras 67-72, 77, 93)

5. 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 paras 108, 109)

6. EU trade mark—Surrender, revocation and invalidity—Absolute grounds for invalidity—Registration contrary to Article 7(1)(b) of Regulation No 207/2009—Exception—Distinctive character acquired through use—Trade mark devoid of distinctive character throughout the EU—Acquisition by use also throughout the EU (Council Regulation No 207/2009, Arts 1(2), and 7(3)) (see paras 119-129, 139)

Re:

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 11 December 2012 (Case R 513/2011-2), relating to invalidity proceedings between Cadbury Holdings and Société des produits Nestlé.

Operative part

The Court:

1. Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 December 2012 (Case R 513/2011-2);

2. Orders EUIPO to bear its own costs and to pay those incurred by Mondelez UK Holdings & Services Ltd;
63

First of all, a specific identifier would be assigned to each of the questions set for each of the candidates, given that, as the Commission explained, the questions set were not the same for each candidate. The applicant made clear in that regard that he did not wish to be given any indication of the content of the questions set for each of the candidates. Next, it would be necessary to indicate, for each question, the language in which it was presented (maintaining the same identifier for the same question irrespective of the language), the type of question involved, whether or not the question had been neutralised and the time spent by each candidate on answering it, and, lastly, to supply an identifier for the expected answer and for the answer given. According to the application for access, the identifiers of the expected answers and the answers given should not, however, give any indication of the content of those answers, but should merely enable a comparison to be made, in respect of each question, of the expected answer and the answer given. The applicant stated in his application, in essence, that if, for any particular question, the answer options were not presented in the same order to all the candidates who were set that question, it would be necessary to ensure that the same identifier was always used for each answer option, so as to ensure that the information obtained was comparable. With regard to situational judgement questions, according to the applicant, the desired answer and the answer obtained should be indicated in their entirety, namely the best and the worst options. Lastly, all the candidates who took the preselection tests at issue should be anonymised by assigning each of them a specific identifier.
152

With regard to the alleged disclosure of confidential information by the Commission, it should be noted that it consists in having informed the coordinators of the ARTreat and Metabo projects of the termination of the ARTreat contract and of the Metabo contract respectively. The alleged confidential information, namely the termination by the Commission of the ARTreat and Metabo contracts with the applicant, is information which emanates from the Commission and which it holds as a party to the contract and not in its capacity as an administrative authority. Furthermore, the coordinators of the projects in question, to whom the alleged confidential information was communicated, are not third parties in respect of the contracts at issue. They are other parties to the contract with the applicant and the Commission. Lastly, the applicant itself alleges, in support of this claim, infringement of Article II.22(8) of Annex II to those contracts, under which the Commission may carry out on-the-spot inspections in accordance with Regulation No 2185/96 and Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by OLAF (OJ 1999 L 136, p. 1), and fails to take account of the fact that Article II.38(2) of Annex II to those contracts provides that the cessation of participation of one or more beneficiaries on the initiative of the Commission is to be notified to the beneficiaries concerned, with a copy being sent to the coordinator. Consequently, the duty of confidentiality which the applicant alleges that the Commission infringed is based objectively on rights and obligations of a contractual nature and not on obligations covered by Article 339 TFEU and Article 41 of the Charter of Fundamental Rights, which have also been invoked.