ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Second Chamber) of 21 December 2021 – HB v Commission

(Case T‑795/19)

(Public service contracts – Provision of technical assistance services to the High Judicial Council – Decision to reduce the amount of the contract and to recover the amounts already paid – Action for annulment and for damages – Act forming part of a purely contractual framework from which it is inseparable – No arbitration clause – Inadmissibility – No heads of damage that are separable from the contract)

1. Actions for annulment – Admissibility criteria – Considered of the Court’s own motion (Art. 263 TFEU) (see para. 53)

2. Actions for annulment – Action relating in reality to a contractual dispute – Application for the annulment of a decision to reduce the amounts due under a contract and to recover the amounts unduly paid – Contract containing a jurisdiction clause conferring jurisdiction on the national court – Lack of jurisdiction of the EU judicature – Inadmissibility (Arts 263, 272 and 274 TFEU; Council Regulation No 1605/2002, Arts 102 and 103; Commission Regulation No 2519/97, Art. 22) (see paras 54-58, 71, 72)

3. Actions for annulment – Actionable measures – Concept – Measures producing binding legal effects – Assessment of those effects by reference to the substance of the measure (Art. 263 TFEU) (see para. 65)

4. Acts of the institutions – Regulations – Direct applicability (Art. 288, second para., TFEU) (see para. 77)

5. Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link – Cumulative conditions (Art. 340, second para., TFEU) (see para. 98)

6. Non-contractual liability – Conditions – Unlawfulness – Infringement of a contractual provision – Not included (Art. 340, second para., TFEU) (see para. 99)

Re:

(i) Application under Article 263 TFEU seeking annulment of Commission Decision C(2019) 7319 final of 15 October 2019 to reduce the amounts due under contract CARDS/2008/166-429 and to recover the amounts unduly paid and (ii) application under the second paragraph of Article 340 TFEU seeking, first of all, reimbursement of any amounts recovered by the Commission on the basis of that decision and payment of the last invoice issued, together with late-payment interest; next, release of the bank guarantee and compensation for the harm allegedly suffered by the applicant on account of its late release; and lastly, symbolic compensation for the non-material harm allegedly suffered by the applicant.

Operative part

The Court:

1. Dismisses the action as inadmissible, in so far as it seeks annulment of Commission Decision C(2019) 7319 final of 15 October 2019 to reduce the amounts due under contract CARDS/2008/166-429 and to recover the amounts unduly paid;

2. Dismisses the action as unfounded, in so far as it seeks to establish non-contractual liability on the part of the European Union;
Judicial proceedings – Application initiating proceedings – Formal requirements – Brief statement of the pleas in law on which the application is based – Similar requirements for submissions made in support of a plea – Abstract statement – Inadmissibility

(Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 76(d))

(see paras 59, 60)
35

As regards in particular the question of whether the intervener sought registration of the contested mark without having any intention of using it for purposes falling within the functions of a trade mark, in particular the essential function of indicating origin (see paragraphs 25 and 26 above), it is apparent from paragraphs 76 and 77 of the judgment of 29 January 2020, Sky and Others (C‑371/18, EU:C:2020:45), that, although the applicant for a trade mark is not required to indicate or even to know precisely, on the date on which his or her application for registration of a mark is filed or of the examination of that application, the use he or she will make of the mark applied for, and although he or she has a period of five years for beginning actual use consistent with the essential function of that trade mark, the registration of a trade mark by an applicant without any intention of using it in connection with the goods and services covered by that registration may constitute bad faith, where there is no rationale for the application for registration in the light of the aims referred to in Regulation No 207/2009. Such bad faith may, however, be established only if there are objective, relevant and consistent indicia tending to show that, when the application for registration of the trade mark was filed, the trade mark applicant had the intention either of undermining, in a manner inconsistent with honest practices, the interests of third parties, or of obtaining, without even targeting a specific third party, an exclusive right for purposes other than those falling within the functions of a trade mark.
77

It is apparent from the inherent logic of the priority system that, as a general rule, it is the nature of the earlier right that determines the length of the priority period. In that regard, it must be noted that the reason why, under Article 4(C)(1) of the Paris Convention, the priority period for patents and utility models is longer than that for industrial designs and trade marks is due to the more complex nature of patents and utility models. Given that, under Article 4(C)(2) of the Paris Convention, the priority period starts to run from the date of filing of the first application and that the registration procedure for patents and utility models is longer than that for industrial designs and trade marks, there is a risk that the right of priority resulting from the filing of an application for a patent or utility model would expire if the same, relatively short, six-month period were applied to all rights giving rise to a right of priority. The advantage that the right of priority is intended to procure is to enable an applicant to assess his chances of obtaining protection for the invention concerned on the basis of the earlier patent application filed in one State before potentially making a later application for protection in another State by going through the necessary steps and preparations and undertaking the necessary costs and formalities. In that regard, in relation to trade marks, the Court has already held that the authors of the Paris Convention wished to enable holders of a right in one of the States party to that convention, who are faced with the impossibility of simultaneously filing applications for a given trade mark in all those States, to apply for it successively in each State, thereby giving an international dimension to the protection obtained in any one of the States without a multiplicity of formalities needing to be accomplished (judgment of 15 November 2001, TELEYE, T‑128/99, EU:T:2001:266, paragraph 38).
38

In the application, the applicant claims, in essence, that the General Court should: – ‘[annul] the Commission’s decision contained in the email of 2 August 2018, in the first paragraph on the second page, by which “in order to move the matter forward, [the appointing authority] has decided to use the rule expressly laid down in Article 22[(1), second subparagraph,] of the Rules on insurance for cases in which no agreement is reached, as regards the appointment of the third doctor, between the doctor representing the insured party and the doctor representing the institution and to apply it, by analogy, for the purposes of appointing another doctor in [this] case”; – order the Commission, if the powers of the General Court so permit, [to pay the applicant] the sum of EUR 21440, which represents the reimbursement of the expenses … necessary to pay for “treatment required as a result of the injuries sustained and their symptoms, and also, where appropriate, of the costs incurred in respect of functional rehabilitation” needed for “emergency rehabilitation, because the open bite was likely to exacerbate a clinical situation already compromised by disease with continuous and repeated upper respiratory tract infections”; – in the alternative, impose[,] authorise or adopt any other measure to ensure that the Commission recognises that the present case, in the specific situation of the applicant and in the light of his medical history, clearly falls within the scope of the case described in Article 10 of [the previous Rules on insurance], and reimburses the sum claimed principally; – further in the alternative, order the Commission, in accordance with the approach indicated in the [contested] decision which is to “use the rule expressly laid down in Article 22 of the Rules [on insurance]” in the applicant’s specific situation and to “apply it by analogy”, to ask the Medical Committee to give its opinion, in accordance with Article 20 of the Rules [on insurance]; – order the Commission to pay default interest from 23 January 2017, the date of the refusal to reimburse the costs of the treatments carried out, until payment is made, in accordance with Calculation No 238 (Annexe A.04); – order the Commission to pay [the applicant] damages in the amount of EUR 500000 euros or any other amount … equitably determined, on account of the voluntary or vexatious nature of the unlawful acts or omissions of the Commission, in particular for the abnormal conduct of the three doctors consulted, who inter alia refused to acknowledge basic nasal functions, claiming in practice that, in the applicant’s specific situation, breathing through the mouth is as healthy as breathing through the nose; – in any event, order the Commission to pay the costs.’
EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Overlap of the scope of the grounds set out in Article 7(1)(b) and Article 7(1)(c) of Regulation No 40/94

(Council Regulation No 40/94, Arts 7(1)(b) and (c), and 51(1)(a))

(see paras 42, 43)
Judgment of the General Court (Fifth Chamber) of 9 September 2020 –

Klose v EUIPO (Representation of three coloured segments in a rectangle)

(Case T‑81/20)

(EU trade mark – Application for an EU figurative mark representing three coloured segments in a rectangle – Absolute ground for refusal – No distinctive character – Article 7(1)(b) of Regulation (EU) 2017/1001)

1. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Definition (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see paras 11, 12)

2. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Assessment of distinctive character – Criteria (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see paras 13, 34)

3. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Definition – Criteria for assessment – Recognition of the distinctiveness of the sign not subject to a finding of a certain level of creativity or linguistic or artistic imagination (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see para. 27)

4. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Representation of three coloured segments in a rectangle (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see paras 28, 29, 36)

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 (European Parliament and Council Regulation 2017/1001) (see para. 38)

6. EU trade mark – Decisions of the Office – Legality – Examination by the EU judicature – Criteria (European Parliament and Council Regulation 2017/1001) (see para. 40)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 12 December 2019 (Case R 1955/2019-2), concerning an application for registration of a figurative sign representing three coloured segments in a rectangle as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Examination of the grounds for refusal having regard to each of the products or services covered by the application for registration – Obligation to state the reasons for refusing to register – Scope

(European Parliament and Council Regulation 2017/1001, Arts 7(1) and 94(1), first sentence)

(see para. 44)
Judicial proceedings – Application initiating proceedings – Formal requirements – Summary of the pleas in law on which the application is based – Pleas in law not set out in the application – General reference to other documents – Inadmissibility

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

(see paras 67-69)
Judgment of the General Court (Ninth Chamber) of 28 April 2021 –

FCA Italy v EUIPO – Bettag (Pandem)

(Case T‑191/20)

(EU trade mark – Opposition proceedings – Application for the EU word mark Pandem – Earlier national and international word marks PANDA – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001)

1. 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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 17, 18, 74-77)

2. 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 – Degree of attention of the relevant public (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 20)

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 – Word marks Pandem and PANDA (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 30, 45, 52, 64, 81)

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 between the goods or services in question – Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 31)

5. 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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 34, 35)

6. EU trade mark – Decisions of the Office – Principle of equal treatment – Principle of sound administration – EUIPO’s previous decision-making practice – Principle of legality – Need for a strict and complete examination in each particular case (European Parliament and Council Regulation No 2017/1001) (see paras 41-43)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 4 February 2020 (Case R 1483/2019-5), relating to opposition proceedings between FCA Italy and Mr Bettag.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Seventh Chamber) of 24 March 2021 –

KM v Commission

(Case T‑374/20)

(Civil Service – Officials – Surviving spouse – Survivor’s pension – Articles 18 and 20 of Annex VIII to the Staff Regulations – Conditions for eligibility – Duration of the marriage – Plea of illegality – Equal treatment – Principle of non-discrimination on grounds of age – Proportionality)

1. Actions brought by officials – Action against a decision rejecting a complaint – Admissibility – Obligation to rule on claims directed against the decision rejecting the complaint – Claims lacking independent content or purely confirmatory decision – None (Staff Regulations of Officials, Arts 90 and 91) (see paras 21, 22)

2. Actions brought by officials – Subject matter – Directions to the administration – Inadmissibility (Arts 266(1) and 270 TFEU; Staff Regulations of Officials, Art. 91) (see paras 23, 24)

3. Officials – Equal treatment – Meaning – Comparability of the situations at issue – Criteria for assessment (Charter of Fundamental Rights of the European Union, Arts 20, 21(1) and 52(1)) (see paras 36-41)

4. Officials – Pensions – Survivor’s pension – Conditions for granting – Discretion of the EU legislature – Judicial review – Scope (Staff Regulations of Officials, Annex VIII, Arts 18 and 20) (see para. 42)

5. Officials – Pensions – Survivor’s pension – Conditions for granting – Minimum duration of marriage – Difference in the treatment of surviving spouses depending on whether they married before or after termination of the deceased official’s service – Condition giving rise to a disadvantage for couples who married following the official’s retirement – Difference in treatment based indirectly on the age of the former official – Unlawful – Justification – Combating fraud – None (Staff Regulations of Officials, Annex VIII, Arts 18 and 20) (see paras 44-54, 58-62, 67-73, 77-81)

Re:

Application based on Article 270 TFEU seeking, first, annulment of the Commission’s decision of 7 October 2019, refusing the request to grant a survivor’s pension to the applicant and, second, an order that the Commission adopt a new decision and grant a survivor’s pension to the applicant.

Operative part

The Court:

1. Annuls the decision of the European Commission of 7 October 2019, refusing the request to grant a survivor’s pension to KM;

2. Dismisses the action as to the remainder;

3. Orders the Commission to bear its own costs and to pay the costs incurred by KM;
Officials – Promotion – Conditions – System established by the Commission – Ineligibility of an official on leave on personal grounds on the date of the adoption of the promotion decision – Whether permissible – Official who has been active during the period taken into account for the promotion exercise – Irrelevant – Infringement of the principles of legal certainty, equal treatment and proportionality – Absence

(Staff Regulations of Officials, Arts 36 to 42c and 45)

(see paras 40, 42, 43, 46-52, 55-60, 63)
3.

EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Relevant date for the examination of an application for a declaration of invalidity – Date on which the application for registration of the contested mark was filed (Council Regulation No 207/2009, Arts 7(1)(c) and 52(1)(a)) (see para. 20)
EU trade mark – Appeals procedure – Appeal against a decision of the Opposition Division of EUIPO – Examination by the Board of Appeal – Scope – Facts and evidence not produced in support of the opposition within the period prescribed for that purpose – Account taken – Discretion of the Board of Appeal

(Council Regulation No 207/2009, Art. 46(1)(a); Commission Regulation No 2868/95, Rules 15(2)(h) and 19(1) and (2))

(see paras 46, 47)
EU trade mark – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Review of the lawfulness of decisions of the Boards of Appeal – Re-examination of the facts in the light of evidence not previously submitted before EUIPO bodies – Precluded

(Rules of Procedure of the General Court, Art. 188; European Parliament and Council Regulation 2017/1001, Arts 72 and 95)

(see para. 47)
Agriculture – Uniform legislation – Protection of plant varieties – Appeals procedure – Action before the EU judicature – Change in the subject matter of the dispute before the Board of Appeal – Precluded

(Council Regulation No 2100/94, Art. 73; Rules of Procedure of the General Court, Art. 188)

(see para. 28)
EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Genuine use – Concept – Criteria for assessment – Requirement of solid and objective evidence

(Council Regulation No 207/2009, Art. 42(2) and (3); Commission Regulation No 2018/625, Art. 10)

(see paras 21-25)
Judgment of the General Court (First Chamber) of 13 October 2021 –

JK v Commission

(Case T‑219/20)

(Civil service – Officials – Commission staff working for the EEAS – Request for assistance – Article 24 of the Staff Regulations – Implied decision rejecting the request – Decision rejecting the complaint – Article 90 of the Staff Regulations – Competent Appointing Authority – Principle of sound administration)

1. Actions brought by officials – Prior administrative complaint – Nature of the procedure – Purpose – Decision to reject – Response by the administration concerning a decision other than that disputed in the complaint – Not permissible (Staff Regulations of Officials, Art. 90(1)) (see paras 55-60)

2. Officials – Obligation of administration to provide assistance – Implementation in the case of psychological harassment – Bringing of a request for assistance – Implied decision to reject – Purpose – Decision taking effect without awareness from the administration as to the nature of the request – Not permissible – Infringement of the principle of sound administration – Consequences (Staff Regulations of Officials, Arts 24 and 90(1)) (see paras 62-67)

Re:

Application under Article 270 TFEU seeking annulment of the Commission’s implied decision of 5 June 2019 rejecting the applicant’s request for assistance brought under Article 24 of the Staff Regulations of Officials of the European Union and of its decision of 6 January 2020 rejecting the applicant’s complaint.

Operative part

The Court:

1. Annuls the implied decision of the European Commission of 5 June 2019 rejecting JK’s request for assistance brought under Article 24 of the Staff Regulations of Officials of the European Union and its decision of 6 January 2020 rejecting the applicant’s complaint;
Judgment of the General Court (Third Chamber) of 6 October 2021 –

Allergan Holdings France v EUIPO – Dermavita Company (JUVEDERM)

(Case T‑397/20)

(EU trade mark – Revocation proceedings – EU word mark JUVEDERM – Genuine use of the mark – Use in connection with the goods in respect of which the mark is registered – Article 51(1)(a) of Regulation (EC) No 207/2009 (now Article 58(1)(a) of Regulation (EU) 2017/1001))

1. EU trade mark – Lodging of application for EU trade mark – Identification of the goods or services concerned by the trade mark – Use of the general indications in the headings of the classes of the Nice classification – Scope (Commission Regulation No 2868/95, Art. 1, Rule 2(1)) (see para. 35)

2. EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Word mark JUVEDERM (Council Regulation No 207/2009, Arts 51(1)(a) and 57(5)) (see paras 44, 45, 51-53, 56)

3. EU trade mark – Definition and acquisition of the EU trade mark – Assessment of the registrability of a sign – EU rules only taken into account – Decisions of national authorities not binding EU bodies (Council Regulation No 207/2009) (see para. 58)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 14 April 2020 (Case R 877/2019-4), relating to revocation proceedings between Dermavita Company and Allergan Holdings France.

Operative part

The Court:

1. Rejects the plea of inadmissibility;

2. Dismisses the action;

3. Orders Allergan Holdings France SAS to bear, in addition to its own costs, the costs incurred by the European Union Intellectual Property Office (EUIPO) and two-thirds of the costs incurred by Dermavita Company S.a.r.l. relating to the present proceedings;