ddrg/super_eurlex huggingface dataset:
Judgment of the Court of First Instance (Grand Chamber) of 14 December 2005 − CD Cartondruck v Council and Commission

(Case T-320/00)

Non-contractual liability of the Community – Incompatibility of the Community regime governing the import of bananas with the rules of the World Trade Organisation (WTO) – Imposition by the United States of America of retaliatory measures in the form of increased customs duty levied on imports from the Community, pursuant to a WTO authorisation – Decision of the WTO Dispute Settlement Body – Legal effects – Community liability in the absence of unlawful conduct of its institutions – Causal link – Unusual and special damage

1. Non-contractual liability – Conditions – Sufficiently serious breach of a rule of law conferring rights on individuals – No discretion for the institution – Mere infringement of Community law sufficient (Art. 288, second para., EC) (see paras 81-85)

2. Actions for damages – World Trade Organisation – Not possible to rely on the WTO Agreements in order to contest the lawfulness of a Community act – Exceptions – Community measure intended to implement a WTO Agreement or expressly and specifically referring thereto – Community regime governing the import of bananas – Incompatibility with the WTO rules established by the Dispute Settlement Body of the WTO – Judicial review of the lawfulness of that regime under the WTO rules – Excluded (Art. 288, second para., EC; Council Regulations Nos 404/93 and 1637/98; Commission Regulation No 2362/98) (see paras 107, 110-112)

3. Non-contractual liability – Conditions – No unlawful conduct on the part of the Community institutions – Real damage, causal link and unusual and special damage – Cumulative requirements (Art. 288, second para., EC) (see para. 152)

4. Non-contractual liability – Conditions – Retention of a Community banana import regime incompatible with the WTO Agreements – Damage arising from the adoption of a retaliatory measure by the United States authorities – Causal link (Art. 288, second para., EC) (see paras 170-171, 176-178, 182)

5. Non-contractual liability – Conditions – No unlawful conduct on the part of the Community institutions – Damage arising from the incompatibility of the Community regime governing the import of bananas with the WTO Agreements – Unusual damage – None – Liability of the Community – Excluded (Art. 288, second para., EC) (see paras 189-190, 192, 197, 199)

Re:

ACTION for compensation in respect of the damage allegedly caused by the levying by the United States of America of increased customs duty on imports of the applicant’s folding boxes made of printed paperboard, as authorised by the Dispute Settlement Body of the World Trade Organisation (WTO), following a finding that the Community regime governing the import of bananas was incompatible with the agreements and understandings annexed to the Agreement establishing the WTO.

Operative part

The Court:

Dismisses the action;
The staff report constitutes an indispensable criterion of assessment each time an official's career is taken into consideration with a view to adopting a decision concerning his promotion. However, the fact that, throughout the promotion procedure, an official's staff report was not included in his personal file does not necessarily mean that the promotion procedure was marred by an irregularity. When the promotion decision is made, all candidates do not necessarily have to be at exactly the same stage regarding the state of their staff reports and the appointing authority is not obliged to postpone its decision if the most recent report on one or other of the candidates is not yet final as a result of referral to the appeal assessor or to the Joint Committee on Staff Reports.

However, there is a procedural irregularity where the staff report is missing not as a result of the normal course of the reporting procedure but of a substantial delay in that procedure, which is attributable to the administration. That irregularity is not such as to entail annulment of a decision not to promote an official unless and in so far as the absence of the staff report was capable of having a decisive effect on the promotion procedure, in particular where that absence could not be offset by means of other information relating to the merits of the person concerned. In that context, it is for the administration to prove by objective evidence amenable to judicial review that it complied with the safeguards provided for by Article 45 of the Staff Regulations for the protection of officials eligible for promotion and that it considered the comparative merits of the candidates for promotion.

(see paras 29-32, 35, 36)

See: 263/81 List v Commission [1983] ECR 103, para. 27; C-68/91 P Moritz v Commission [1992] ECR I-6849, para. 16; T-58/92 Moat v Commission [1993] ECR II-1443, para. 59; T-557/93 Rasmussen v Commission [1995] ECRSC I-A-195 and II-603, para. 33; T-144/95 Michael v Commission [1996] ECRSC I-A-529 and II-1429, para. 52; T-82/98 Jacobs v Commission [2000] ECRSC I-A-39 and II-169, paras 34, 36 and 40; T-202/99 Rappe v Commission [2000] ECRSC I-A-201 and II-911, paras 39,40, 43 and 45
JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

6 February 2003

Case T-7/01

Norman Pyres

v

Commission of the European Communities

‛Member of the temporary staff — Extension of contract — Term’

Full text in English II-239

Application for:

annulment of the Commission's decision to extend the applicant's temporary staff contract for a term limited to six months.

Held:

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

Summary
JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

10 September 2003

Case T-165/01

Hans MeAuley

v

Council of the European Union

‛Staff report — Guide to staff reports — Change of assessor during the period covered by the report — Substantial irregularities’

Full text in French II-963

Application for:

annulment of the Council's decision of 15 September 2000 drawing up the applicant's final staff report for the period 1 July 1997 to 30 June 1999.

Held:

The Council's decision of 15 September 2000 drawing up the applicant's final staff report for the period 1 July 1997 to 30 June 1999 is annulled. The Council is ordered to pay the costs.

Summary

Officials — Reports procedure — Institution's internal guidelines on the reporting procedure — Legal effects (Staff Regulations, Arts 43 and 110) Officials — Reports procedure — Staff report — Signatures of those consulted (Staff Regulations, Art. 43) Officials — Reports procedure — Staff report — Purpose — Need for prior consultation of those who have had the official under their authority (Staff Regulations, Art. 43)
Keywords

Summary



Keywords

Procedure — Reference to the Court of First Instance on the basis of an arbitration clause — Commission ordered to pay part of the outstanding balance under a contract for works, together with interest for late payment — (Art. 238 EC)

Summary

Where the Commission has been ordered to pay interest for late payment on a sum due in accordance with the terms of a contract subject to the jurisdiction of the Court of First Instance by virtue of an arbitration clause, and that interest relates to a period beginning before 1 January 1999, the rate of that interest may be fixed at 8% per annum in respect of the period before 1999 and, from 1999 onwards, be calculated on the basis of the rate set by the European Central Bank for capital refinancing operations in force during the various phases of the period concerned, increased by two percentage points.

see paras 77-78, and operative part, para. 2
Keywords

Summary



Keywords

1. General and final provisions — Powers of the Member States to adopt measures intended to ensure national security — Production and trade in armaments — Distortion of competition on the market for products not intended for specifically military purposes — Specific procedural regime established by Article 298 EC — Powers of the Commission — Limits — (Arts 86(3) EC, 88 EC, 296(1)(b) EC and 298 EC)

2. Actions for failure to act — Failure to act brought to an end before action brought — Inadmissible — (Arts 232 EC and 233, first para., EC)

Summary

1. The regime established by Article 296(1)(b) EC is intended to preserve the freedom of action of the Member States in certain matters affecting national defence and security. It has, for the activities which it covers and on the conditions which it sets forth, a general effect, capable of affecting all the ordinary legal provisions of the Treaty, including those on the competition rules and, confers on the Member States a particularly wide discretion in assessing the needs receiving the protection of the essential interests of their security. The measures which they may adopt must not however adversely affect the conditions of competition in the common market regarding " products which are not intended for specifically military purposes" .

It is thus that, where in favour of production or trade in arms, munitions or war material identified as such by the Council, a Member State adopts an aid measure on the basis of considerations linked to the need to protect the essential interests of its national security, so that the Commission cannot use the examination procedure laid down by Article 88 EC, the rules of competition do not apply to such State aid. If it considers that the measure in question may cause distortion in competition, the Commission undertakes with the Member State concerned a bilateral examination of that measure, without being able to address a final decision or directive to that State, but with the power to bring directly before the Court of Justice an action for failure to fulfil Treaty obligations, if it considers that the Member State has made improper use of the power provided for in Article 296 EC.

see paras 58-59, 63-64, 74

2. An action for failure to act is inadmissible where the Commission has defined its position, for the purposes of Article 232 EC, before the action was brought. A judgment which, in such circumstances, found that there had been a failure to act on the part of the defendant institution could not give rise to the measures for compliance referred to in the first paragraph of Article 233 EC.

see para. 92
Keywords

Summary



Keywords

1. Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link

(Art. 288, second para., EC)

2. Non-contractual liability – Damage

(Art. 288, second para., EC)

Summary

1. For the Community to incur non-contractual liability within the meaning of the second paragraph of Article 288 EC, a series of conditions must be met, namely, the conduct of which the institutions are accused must have been unlawful, the damage must be real and a causal connection must exist between that conduct and the damage in question. Since those three conditions for the incurring of liability are cumulative, failure to meet one of them is sufficient for an action for damages to be dismissed.

There is a causal link for the purposes of the second paragraph of Article 288 EC where there is a direct link of cause and effect between the error committed by the institution concerned and the injury pleaded, the burden of proof being on the applicant. The Community can be held liable only for damage which is a sufficiently direct consequence of the wrongful conduct of the institution concerned. In particular, in order to be able to exclude any liability on the part of the Community, the Court ought to ascertain whether the cause of the difficulties encountered by an applicant on the market does not indeed lie in the unlawful conduct complained of.

(see paras 26-27, 37)

2. The expenses incurred by the parties for the purpose of judicial proceedings cannot, as such, be regarded as constituting damage distinct from the burden of the costs of the proceedings. Moreover, even though substantial legal work is carried out in the course of the proceedings preceding the judicial phase, it must be pointed out that by ‘proceedings’ Article 91 of the Rules of Procedure refers only to proceedings before the Court of First Instance, to the exclusion of any prior stage. Therefore, to regard such expenses as compensable damage in the context of an action for damages would be in contradiction with the irrecoverable nature of the costs incurred during the stage preceding the judicial proceedings.

(see para. 69)
Case T-156/01





Laboratorios RTB, SL

v

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





«(Community trade mark – Invalidity proceedings – Article 52(1)(a) of Regulation (EC) No 40/94 – Earlier figurative and word marks containing the word GIORGI – Application for Community word mark GIORGIO AIRE – Relative ground for refusal – Article 8(1)(b) of Regulation No 40/94 – Proof of use – Article 56(2) and (3) of Regulation No 40/94)»

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

Summary of the Judgment

1.. Community trade mark – Surrender, revocation and invalidation – Consideration of the application – Proof of use of the earlier mark – Genuine use – Meaning

(Council Regulation No 40/94, Art. 56(2))

2.. Community trade mark – Surrender, revocation and invalidation – Consideration of the application – Proof of use of the earlier mark – Genuine use – Criteria for assessment – Particular circumstances of owners – Not relevant

(Council Regulation No 40/94, Art. 56(2); Commission Regulation No 2868/95, Art. 1, Rules 22(2) and 40(5))

3.. Community trade mark – Surrender, revocation and invalidation – Causes of relative invalidity – Existence of an earlier identical or similar mark registered for identical or similar products or services – Risk of confusion with the earlier mark – Word mark GIORGIO AIRE and figurative marks including the word GIORGI

(Council Regulation No 40/94, Arts 8(1)(b) and 52(1)(a))

1.

2.

3.
JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

9 April 2003

Case T-134/02

Miguel Tejada Fernández

v

Commission of the European Communities

‛Officials Promotion — Consideration of comparative merits — ction for annulment’

Full text in French II-609

Application for:

annulment of the decision of the Commission not to promote the applicant to Grade B 2 in the 2001 promotions procedure.

Held:

The decision of the Commission not to promote the applicant to Grade B 2 in the 2001 promotions procedure is annulled. The Commission is ordered to pay the costs.

Summary

Every decision purely and simply rejecting a complaint, whether it be express or implied, only confirms the act or failure to act to which the complainant takes exception and is not, by itself, a decision which may be challenged. It is only when this decision upholds all or part of the complaint of the person concerned that it will, in appropriate circumstances, constitute by itself a decision against which an action can be brought. (see para 16) See: 371/87 Progoulis v Commission [1988] ECR 3081, para 17; T-196/95 H v Commisuon [1997] ECRSC I-A-133 and II-403, para 40

A refusal to propose an official for promotion is, as a rule, merely a preparatory measure and as such may not be the subject of an action for annulment. However, such a refusal may nevertheless be disputed in the course of an appeal against the final decision taken at the end of the promotions procedure. (see para. 18) See: 3/66 Alfieri v Parliament [1966] ECR 437, 446; 78/87 and 220/87 Santarelli v Commission [1988] ECR 2699

The appointing authority has a wide discretion in assessing the merits to be taken into consideration in a decision on promotion under' Article 45 of the Staff Regulations, and review by the Community judicature is confined to determining whether, having regard to the various considerations which have influenced the administration in making its assessment, it has remained within reasonable bounds and has not used its power in a manifestly incorrect way. The Court cannot therefore substitute its assessment of the qualifications and merits of the candidates for that of the appointing authority. (see paras 41, 58) See: Baiwir v Commission, cited above, para. 66; T-221 /96 Manzo-Tafaro v Commission [1998] ECRSCI-A-115 and II-307, para. 16; T-187/98 Cabero Vermurie v Commission [2000] ECRSC I-A-195 and II-885, para 58
Keywords

Summary



Keywords

Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Signs devoid of any distinctive character — Three-dimensional mark — Shape of a bottle designed as packaging for the products referred to in the trade mark application — (Council Regulation No 40/94, Art. 7(1)(b))

Summary

A three-dimensional sign constituted by the shape of a cylindrical bottle with various presentational elements, registration of which has been applied for in respect of " Mineral and aerated waters, spring waters, flavoured waters and more particularly flavoured drinks with a mineral water and fruit or fruit extract base, fruit drinks, fruit juices, nectars, lemonades, sodas and, more generally, all non-alcoholic beverages" under Class 32 of the Nice Agreement, is not devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark; the combination of those elements is truly specific and cannot be regarded as altogether commonplace. The bottle at issue thereby acquires a particular appearance which, taking account also of the overall aesthetic result, is capable of holding the attention of the public concerned and enabling that public, made aware of the shape of the packaging of the goods in question, to distinguish the goods covered by the registration application from those with a different commercial origin.

see paras 41, 43
Staff case summary



Staff case summary

Summary

Officials – Actions – Act adversely affecting an official – Definition – Organisational measure internal to department – Not included – Exceptions

(Staff Regulations, Arts 90(2) and 91(1))

The existence of an act adversely affecting the official concerned within the meaning of Articles 90(2) and 91(1) of the Staff Regulations is an essential condition for the admissibility of any action brought by officials against the institution by which they are employed.

An official is adversely affected by an act only where it is such as to have a direct effect on his position in law and thus goes beyond measures which, concerning only the internal organisation of the departments, do not adversely affect the position of the official concerned under the Staff Regulations or infringe the principle that the post to which an official is assigned should correspond to his grade. Such a measure falls within the discretionary power which each administration has to allocate duties among the members of its staff. However, certain decisions, even though they do not affect an official’s pecuniary interests or his rank, may be regarded as acts adversely affecting that official if they adversely affect his non-pecuniary interests or future prospects.

Only special circumstances which provided the grounds for measures of internal organisation may render an appeal against such measures admissible. That may be the case where the decision in question is in the nature of a covert penalty, where it discloses an intention to discriminate against the official concerned or where it is vitiated by a misuse of powers.

(see paras 21-23)

See: T-20/92 Moat v Commission [1993] ECR II-799, para. 39; T-36/93 Ojha v Commission [1995] ECR-SC I-A-161 and II-497, paras 41 and 42; T-78/96 and T-170/96 W v Commission [1998] ECR-SC I-A-239 and II-745, para. 45; T-178/97 Moncada v Commission [1998] ECR-SC I-A-339 and II-989, para. 33; T-129/98 Sabbioni v Commission [1999] ECR-SC I-A-223 and II-1139, para. 45
Keywords



Keywords

Procedure – Referral to the Court of First Instance under an arbitration clause – Contract providing for Community financial assistance for arranging a technical audit – Application for reimbursement of travel costs and for payment of recovery costs – Dismissed

(Art. 238 EC)
Keywords



Keywords

1. Procedure – Referral to the Court of First Instance under an arbitration clause – Jurisdiction of the Court of First Instance to hear a counterclaim – Basis

(Art. 238 EC; Rules of Procedure of the Court of First Instance, Art. 113; Council Decision 88/591, Art. 3(1)(c))

2. Procedure – Referral to the Court of First Instance under an arbitration clause – Application of the national law governing the contract – Interpretation of the contract in the light of its context – Contract granting Community financial assistance in return for undertakings given by the recipient – Non-implementation

3. Procedure – Referral to the Court of First Instance under an arbitration clause – Contract providing for Community financial assistance for a research and development project – Request for reimbursement of certain costs – Counterclaim by the Commission for reimbursement of overpayment

(Art. 238 EC; Council Decisions 94/763 and 94/802)
Keywords

Summary



Keywords

1. Economic and social cohesion – European Regional Development Fund – Grant of Community financial assistance – Establishment of the legal and financial framework of the assistance in the Community decision – Beneficiary exceeding the expenditure initially provided for – No effect on the determination of the amount of the assistance

(Council Regulation No 1787/84)

2. Economic and social cohesion – European Regional Development Fund – Grant of Community financial assistance – Amendment of the allocation of public expenditure intended for projects receiving assistance – Amendment not communicated to the Commission – Commission decision not adjusted to that amendment – Breach of the principle of the protection of legitimate expectations – None

(Council Regulation No 1787/84)

Summary

1. Since the Commission Decision concluding the financial assistance granted from the European Regional Development Fund and the implied rejection of an application for correction of the account relating to other financial assistance granted from the same fund satisfies the principle that the legal and financial framework of each assistance must be strictly defined by the Community decision granting that assistance, the Commission is right to limit itself to paying the amount provided for by the latter, notwithstanding the fact that total public expenditure turns out to be higher than initially provided for.

(see paras 46, 50)

2. Where there is Community financial assistance granted from the European Regional Development Fund, when it has not been shown that the relevant national authorities informed the Commission in due time, and with the detail that it was entitled to expect from the beneficiaries of such assistance, of the relevant amendments to the plans affected by the assistance, the absence of objections on the part of the Commission to those amendments cannot be taken to signify its acceptance that certain public expenditure was imputed to a project other than the one for which it was initially intended.

It follows that, in order to challenge the lawfulness of the decision concluding the financial assistance, which impliedly rejects the application for correction of the account relating to the assistance, the beneficiary cannot rely on the protection of legitimate expectations since such a principle may be invoked only by an economic operator to whom an institution has given justified hopes.

(see paras 62, 64)