ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Second Chamber) of 7 February 2019 –

Arango Jaramillo and Others v EIB

(Case T‑487/16)

(Civil service — EIB staff — Pensions — 2008 Reform — Increase in the rate of contributions — Subsequent pay slips — No act adversely affecting an official — Inadmissibility)

1. Actions brought by officials — Plea of illegality — Measures the illegality of which may be pleaded — General measure providing the basis of the contested decision — Admissibility — Conditions (Art. 277 TFEU) (see para. 31)

2. Actions brought by officials — Acts adversely affecting an official — Concept — Salary or pension statement reflecting a decision the subject matter of which is purely financial — Included — Salary or pension statement merely confirmative of prior administrative decisions — Not included (see paras 36-41)

3. Actions brought by officials — Application for damages linked to an application for annulment — Dismissal of the application for annulment leading to dismissal of the application for damages (Staff Regulations of Officials, Arts 90 and 91) (see paras 50-53)

Re:

Application under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union and seeking, first, annulment of the ‘decisions’ of the EIB, contained in the applicants’ pay slips for February 2011, to increase the rate of their contributions to the pension scheme from 9% to 10% and, secondly, an order that the EIB pay a symbolic EUR 1 by way of compensation for the non-material damage allegedly suffered by the applicants.

Operative part

The Court:

1. Dismisses the action as inadmissible;
Judgment of the General Court (Eighth Chamber, Extended Composition) of 26 June 2019 –

NRW. Bank v SRB

(Case T‑466/16)

(Action for annulment — Economic and monetary union — Banking union — Single resolution mechanism for credit institutions and certain investment firms (SRM) — Single Resolution Fund (SRF) — Setting of the ex ante contribution for 2016 — Time limit for bringing an action — Delay — Article 76 of the Rules of procedure of the General Court — Inadmissibility)

1. Action for annulment — Time-limits — Point from which time starts to run — Decision neither published nor notified to the applicant — Precise knowledge of the content and reasons — Duty to request the whole text of the decision within a reasonable time once its existence is known — Duty to act within a reasonable time — Criteria for assessment (Art. 263, 6th para. TFEU) (see paras 46-48, 53-56)

2. Action for annulment — Action against a decision refusing to withdraw or amend an earlier act — Inadmissibility — Concept of confirmatory decision — Decision adopted following an application raising new and substantial facts — Not included (Art. 263 TFEU) (see paras 67-69)

3. Judicial proceedings — Application initiating proceedings — Formal requirements — Lack of brief summary of the pleas in law on which the application is based — Inadmissibility (Rules of Procedure of the General Court, Art. 76(d)) (see para. 73)

Re:

Application under Article 263 TFEU for annulment, first, of the decision of the SRB in its executive session of 15 April 2016 on the ex ante contributions for 2016 to the Single Resolution Fund (SRB/ES/SRF/2016/06) and, secondly, of the decision of the SRB in its executive session of 20 May 2016 on the adjustment of the ex ante contributions for 2016 to the Single Resolution Fund, supplementing the decision of the SRB in its executive session of 15 April 2016 on the ex ante contributions for 2016 to the Single Resolution Fund (SRB/ES/SRF/2016/13), in so far as they relate to the applicant.

Operative part

The Court:

1. Dismisses the action as inadmissible;

2. Orders NRW. Bank to bear its own costs and to pay those incurred by the Single Resolution Board (SRB);
The existence of genuine use in respect of some of the goods and services covered by the contested mark in revocation proceedings, does not preclude, in law or fact, the presence of proper reasons for non-use of the same mark in relation to other goods or services covered by it. In that regard, it is clear from the case-law that genuine use, within the meaning of Article 51(1)(a) of Regulation No 207/2009 on the European Union trade mark, must be established in connection with each type of goods or services covered by the contested mark which may be considered independently. However, there is nothing in the wording of that provision, or any other provision of EU law, which precludes genuine use of a trade mark from being established in relation to certain goods or services covered by it, while justifying the absence of such use in relation to other goods or services by proper reasons for non-use.

Where, within a ‘continuous’ period of five years, there is neither genuine use of the mark at issue nor proper reasons for non-use of that mark, the rights of the proprietor are to be declared to be revoked, within the meaning of Article 51(1)(a) of Regulation No 207/2009. By contrast, where the mark at issue was put to genuine use or where such use was prevented for proper reasons during a part of the five-year period, that period is no longer ‘uninterrupted’. Thus, it is sufficient that there are proper reasons for non-use of a trade mark during a part of the relevant period in order for the proprietor to avoid revocation of its rights to that mark. A contrary interpretation would go against the wording of Article 51(1)(a) of Regulation No 207/2009, which makes no distinction between proprietors of an EU trade mark who have made genuine use of their mark and those who were prevented from doing so for proper reasons. The objective underlying that article confirms that interpretation. In providing for the possibility of justifying non-use of an EU trade mark for proper reasons, the EU legislature sought to avoid the trade mark proprietor having its rights to the mark revoked where that proprietor was objectively unable to put the mark to genuine use for reasons beyond its control and thus external to that proprietor. To insist that those reasons must cover the whole of the relevant five-year period would undermine that objective. Indeed, the occurrence of such reasons, even where they have lasted for only part of the relevant period, may prevent or at least delay, the genuine use of the trade mark beyond the period during which those reasons arose. Thus, the fact that the events that could be categorised as proper reasons, within the meaning of Article 51(1)(a) of Regulation No 207/2009, came to an end at some point during the relevant period does not mean that the trade mark proprietor could reasonably resume genuine use of that mark immediately after that.

Similarly, the fact that such events take place not at the start of the relevant period but later during that period does not permit the rights of the trade mark proprietor to be declared to be revoked.

(see paras 63, 65-68)
Judgment of the General Court (Eighth Chamber) of 25 June 2020 —

MU v Parliament

(Case T‑40/16)

(Action for annulment ‐ Article 263 TFEU ‐ Internal Rules governing traineeships and study visits in the Secretariat of the Parliament ‐ Trainee with a disability ‐ Additional disability allowance ‐ Refusal ‐ Conditions for granting an additional disability allowance ‐ Error of law)

Officials – Equal treatment – Discrimination – Internal Rules governing traineeships and study visits in the Secretariat of the Parliament – Trainee with a disability – Conditions for granting an additional disability allowance – Grant dependent on the percentage of disability – Appropriate supporting documents – Discretion of the competent authority of the Parliament – Scope – Refusal to grant that allowance to a trainee who testifies to having 70% disability using a national certificate – Not permissible

(Art. 263 TFEU)

(see paras 21-27)

Re:

Action based on Article 263 TFEU seeking annulment of the decision of the Parliament of 11 December 2015 refusing payment of an additional allowance prescribed for trainees with disabilities in Article 24(9) of the Internal Rules governing Traineeships and Study Visits in the Secretariat of the Parliament.

Operative part

The Court:

1. Annuls the decision of the European Parliament of 11 December 2015 refusing MU payment of the additional allowance for trainees with disabilities referred to in Article 24(9) of the Internal Rules governing Traineeships and Study Visits in the Secretariat of the Parliament;

2. Dismisses the action for the remainder;
Judgment of the General Court (First Chamber) of 8 December 2021 –

BZ v ECB

(Case T‑500/16)

(Civil service – ECB staff – Request for recognition of an occupational disease – Non-contractual liability – Material damage – Non-material damage)

Actions brought by officials – Staff of the European Central Bank – Judgment annulling a measure – Effects – Obligation to implement – Judgment annulling decisions closing a procedure for recognition of an occupational disease and an investigation into alleged pyschological harassment – Claim by the applicant for compensation in respect of the material harm suffered – Premature nature of the claim

(Art. 266 TFEU)

(see paras 49, 50)

Re:

Application under Article 270 TFEU and Article 50a of the Statute of the Court of Justice of the European Union for, first, annulment of the ECB’s decisions of 29 August 2011, 20 December 2011 and 25 April 2012 and, secondly, compensation for the material and non-material damage allegedly sustained as a result of the ECB’s conduct.

Operative part

The Court:

1. Dismisses the action;
21

The Commission disputes that the AECE is required to repay the applicant the sums withheld from his remuneration. It notes that it was not possible to impose a more severe penalty than a reprimand on the applicant, and adds that the penalty does not reflect the gravity of his misconduct. Consequently, according to the Commission, the repayment of sums withheld, as a result of a literal interpretation of Article 24(4) of Annex IX to the Staff Regulations, would be incompatible with the objective of that provision, which is to remedy the effects of deductions considered, on the conclusion of disciplinary proceedings, to be excessive in the light of the insignificance of the misconduct established. A literal interpretation of this provision would also give rise to the unjust enrichment of the member of staff, who would receive the repayment of the sums withheld from his remuneration despite the gravity of his misconduct, and would result in discrimination between members of staff who engaged in misconduct of the same nature during their employment, according to whether or not a continuing and permanent legal relationship had been retained with those staff after their duties had ceased. Therefore, members of staff such as the applicant, who no longer had any relationship with the Commission, could, since it would be impossible to have more serious penalties than a reprimand imposed on them, obtain repayment of deductions from their remuneration which were wholly justified when the decision to withhold was made. The Commission adds, in the alternative, that interest is payable on sums to be repaid only where no penalty has been imposed following disciplinary proceedings.
30

EUIPO submits, in the first place, that the Board of Appeal’s conclusion that the contested sign represents a tyre tread, which is (perhaps) the most crucial part of the contested goods, at least from a technical perspective, was drawn, first, from the assessment of the graphic representation constituting the contested sign in the light of the goods in respect of which registration was applied for and, second, from the evidence submitted by the parties. In the second place, in order for a sign to be caught by Article 7(1)(e)(ii) of Regulation No 40/94, it is enough that that sign forms part of a product included in its specification. In other words, the mere fact that the shape in question may be applied to a more complex product, or incorporated into it, does not preclude the application of that ground for refusal. In the third place, EUIPO notes that a tyre groove is not a product since it is not a separable element of a tyre. Consequently, the contested sign was registered in respect of tyres, which is the product incorporating the L-shaped groove in question and on which that groove performs a technical function. In the fourth place, the presumed perception of the sign by the public is not a decisive aspect when applying the ground for refusal set out in Article 7(1)(e)(ii) of Regulation No 40/94. That ground is based on an objective test for which, apart from the graphic representation of a sign, EUIPO may take into account any material relevant to identifying a sign appropriately in the context of Article 7(1)(e)(ii) of Regulation No 40/94. In the fifth place, the purpose of Article 7(1)(e)(ii) of Regulation No 40/94 is to prevent the granting of a monopoly over functional characteristics of a product. Consequently, if the applicant were granted the trade-mark rights in respect of the contested sign (because it represents only a part of a tyre), it would be able to prevent other undertakings from marketing tyres that incorporate the same or similar signs, namely grooves.
14

For rejection decisions made by the executive agencies, Article 22(1) to (5) of Regulation No 58/2003 provides for a review of legality by the commission of ‘1. Any act of an executive agency which injures a third party may be referred to the Commission by any person directly or individually concerned or by a Member State for a review of its legality. Administrative proceedings shall be referred to the Commission within one month of the day on which the interested party or Member State concerned learnt of the act challenged. After hearing the arguments adduced by the interested party or by the Member State concerned and those of the executive agency, the Commission shall take a decision on the administrative proceedings within two months of the date on which proceedings were instituted. Without prejudice to the Commission’s obligation to reply in writing giving grounds for its decision, the failure by the Commission to reply within that deadline shall be taken as implicit rejection of the proceedings. … 5. An action for annulment of the Commission’s explicit or implicit decision to reject the administrative appeal may be brought before the Court …, in accordance with [Article 263 TFEU].’
3

Article 70 of Regulation No 806/2014, entitled ‘Ex-ante contributions’, provides: ‘1. The individual contribution of each institution shall be raised at least annually and shall be calculated pro-rata to the amount of its liabilities (excluding own funds) less covered deposits, with respect to the aggregate liabilities (excluding own funds) less covered deposits, of all of the institutions authorised in the territories of all of the participating Member States. 2. Each year, the Board shall, after consulting the ECB or the national competent authority and in close cooperation with the national resolution authorities, calculate the individual contributions to ensure that the contributions due by all of the institutions authorised in the territories of all of the participating Member States shall not exceed 12,5% of the target level. Each year the calculation of the contributions for individual institutions shall be based on: (a) a flat contribution, that is pro-rata based on the amount of an institution’s liabilities excluding own funds and covered deposits, with respect to the total liabilities, excluding own funds and covered deposits, of all of the institutions authorised in the territories of the participating Member States; and (b) a risk-adjusted contribution, that shall be based on the criteria laid down in Article 103(7) of Directive 2014/59/EU, taking into account the principle of proportionality, without creating distortions between banking sector structures of the Member States. The relation between the flat contribution and the risk-adjusted contributions shall take into account a balanced distribution of contributions across different types of banks. In any case, the aggregate amount of individual contributions by all of the institutions authorised in the territories of all of the participating Member States, calculated under points (a) and (b), shall not exceed annually the 12,5% of the target level. … 6. The delegated acts specifying the notion of adjusting contributions in proportion to the risk profile of institutions, adopted by the Commission under Article 103(7) of Directive 2014/59/EU, shall be applied. 7. The Council, acting on a proposal from the Commission, shall, within the framework of the delegated acts referred to in paragraph 6, adopt implementing acts to determine the conditions of implementation of paragraphs 1, 2, and 3, and in particular in relation to: (a) the application of the methodology for the calculation of individual contributions; (b) the practical modalities for allocating to institutions the risk factors specified in the delegated act.’
EU trade mark—Surrender, revocation and invalidity—Absolute grounds for invalidity—Registration contrary to Article 7(1)(b) and (c) of Regulation No 207/2009—Figurative mark hp

(Council Regulation No 207/2009, Arts 7(1)(b) and (c) and 52(1)(a))

(see paras 34, 48)
Judgment of the General Court (Ninth Chamber) of 22 February 2018 — International Gaming Projects v EUIPO — Zitro IP (TRIPLE TURBO)

(Case T‑210/17)

(EU trade mark — Opposition proceedings — Application for EU figurative mark TRIPLE TURBO — Earlier EU figurative mark TURBO — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now 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—Similarity of the marks concerned—Criteria for assessment—Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 22, 24, 26, 37, 50, 71-73)

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—Similarity of the marks concerned—Assessment of the distinctiveness of an element composing a trade mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 23)

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—Similarity of the marks concerned—Criteria for assessment—Composite mark—Determination of dominant components (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 25)

4. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services—Similarity of the marks concerned—Elements of a trade mark having a descriptive character (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 27)

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—Likelihood of confusion with the earlier mark—Figurative mark TRIPLE TURBO and figurative mark TURBO (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 52-54, 58-60, 64, 65, 67, 74, 76)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 8 February 2017 (Case R 119/2016-4), relating to opposition proceedings between Zitro IP and International Gaming Projects.

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 8 February 2017 (Case R 119/2016-4);

2. Orders EUIPO to bear its own costs and to pay those incurred by International Gaming Projects Ltd;
Judgment of the General Court (Second Chamber) of 2 May 2018 –

Alpine Welten Die Bergführer v EUIPO (ALPINEWELTEN Die Bergführer)

(Case T‑428/17)

(EU trade mark — Application for EU figurative mark ALPINEWELTEN Die Bergführer — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 (now Article 7(1)(c) of Regulation (EU) 2017/1001))

1. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Meaning (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 24-27)

2. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 28, 29)

3. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Figurative mark ALPINEWELTEN Die Bergführer (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 31, 37-39, 44-46, 49, 51-63)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 25 April 2017 (Case R 1339/2016-1), concerning an application for registration of the figurative sign ALPINEWELTEN Die Bergführer as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;