ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Second Chamber) of 18 June 2019 –

Quadri di Cardano v Commission

(Case T‑828/17)

(Civil service — Members of the contract staff — Expatriation allowance — Article 4(1)(b) of Annex VII to the Staff Regulations — Recovery of overpayment — Article 85, first paragraph of the Staff Regulations — Patent payment irregularity)

1. Officials — Remuneration — Expatriation allowance — Conditions for granting — Performance of duties in the service of a State or an international organisation — Meaning — Requirement of a direct legal relationship between the applicant and the State or organisation — Performance of duties for an institution but as an employee of a temporary employment agency — Not included (Staff Regulations of Officials, Annex VII, Art. 4(1)(b)) (see paras 41, 42)

2. Officials — Recovery of undue payments — Conditions — Patent overpayment — Knowledge of the person concerned — Criteria — Administration’s negligence or error — Irrelevant (Staff Regulations of Officials, Art. 85, 1st para.) (see paras 44-49, 59, 61, 63, 64)

Re:

Action under Article 270 TFEU seeking annulment of the decision of the European Commission’s Office for the Administration and Payment of Individual Entitlements (PMO) of 28 February 2017 on the recovery of sums unduly paid to the applicant in respect of the expatriation allowance and annual travel expenses for the period of activity at the Executive Agency for Small and Medium-sized Enterprises (EASME), from 16 May 2016 to 15 July 2016, and, so far as necessary, of the salary slips ‘corrected’ further to that decision.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Eighth Chamber) of 21 March 2019 –

Pan v EUIPO — Entertainment One UK (TOBBIA)

(Case T‑777/17)

(EU trade mark — Invalidity proceedings — EU figurative mark TOBBIA — Earlier EU figurative mark Peppa Pig — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 (now Article 8(1)(b) and Article 60(1)(a) of Regulation (EU) 2017/1001))

1. 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. 76(2)) (see paras 21-23)

2. EU trade mark — Procedural provisions — Statement of reasons for decisions — First sentence of Article 75 of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see paras 27-32)

3. EU trade mark — Appeals procedure — Appeal to a Board of Appeal — Competence of the Boards of Appeal — New full examination of the merits (Council Regulation No 207/2009, Art. 64(1)) (see para. 33)

4. EU trade mark — Surrender, revocation and invalidity — Relative grounds for invalidity — Existence of an identical or similar earlier mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Criteria for assessment (Council Regulation No 207/2009, Arts 8(1)(b) and 53(1)(a)) (see paras 37, 38, 41, 56)

5. EU trade mark — Surrender, revocation and invalidity — Relative grounds for invalidity — Existence of an identical or similar earlier mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Figuratives marks TOBBIA and Peppa Pig (Council Regulation No 207/2009, Arts 8(1)(b) and 53(1)(a)) (see paras 57-60)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 14 September 2017 (Case R 1776/2016-1), relating to invalidity proceedings between, on the one hand, Entertainment One UK and Astley Baker Davies, and, on the other hand, Mr Xianhao.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fifth Chamber) of 12 July 2019 –

Steifer v EESC

(Case T‑331/17)

(Civil service — Officials — Pensions — Pension entitlement acquired before entry into service of the EU — Transfer to the EU scheme — Grant of additional seniority — Reimbursement of the amount of pension entitlement not taken into account in the scheme for the calculation of annuities of pension of the EU — No new and substantial facts — No excusable error — Liability — Inadmissibility)

1. Actions brought by officials — Prior administrative complaint — Time-limits — Mandatory — Claim barred by lapse of time — Reopening — Condition — New and material fact — Concept (Staff Regulations of Officials, Arts 90 and 91) (see paras 61, 64, 65, 67, 70-72, 87-89, 100, 101, 110, 114)

2. Actions brought by officials — Prior administrative complaint — Time-limits — Mandatory — Claim barred by lapse of time — Excusable error — Concept — Burden of proof (Staff Regulations of Officials, Arts 90 and 91) (see paras 68, 120, 125, 126)

3. Actions brought by officials — Actions for damages — Pre-litigation procedure — Different process depending on whether there is an act having adverse effect (Staff Regulations of Officials, Arts 90 and 91) (see paras 133-135)

Re:

Application pursuant to Article 270 TFEU seeking, first, to annul the decision of 21 October 2002 of the Director of Human and Financial Resources of the EESC rejecting the applicant’s request of 2 October 2002 for reimbursement, together with applicable interest, of the part of his Belgian pension rights not credited on transfer to the EU pension scheme and Decision No 360/03 A of that Director of 15 December 2003 fixing the applicant’s entitlement to a retirement pension, second, to order the EESC to reimburse the applicant the amount of the periodic annuity payments paid by the Belgian National Pensions Office to the EESC since 1 January 2004 as a result of the transfer of his pension rights and to reimburse the applicant each month the amount of the periodic annuity payments to be paid in the future and, third, compensation for the harm allegedly suffered by the applicant as a result of one of the grounds of that decision by which the Director wrongly informed him that he had no right to a Belgian pension.

Operative part

The Court:

1. Dismisses the action as inadmissible;
Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Restrictive measures taken having regard to the situation in Ukraine — Action brought by the persons included in the list of persons and entities subject to restrictive measures — Admissibility — Actions for annulment brought against measures of general application — Lack of locus standi — Inadmissibility

(Arts 263, fourth para. and 275, second para. TFEU; Council Decision 2014/145/CFSP, as amended by Decisions (CFSP) 2017/1418, (CFSP) 2018/392 and (CFSP) 2018/1237)

(see paras 64-67)
Judgment of the General Court (First Chamber) of 4 September 2019 –

Lithuania v Commission

(Case T‑603/17)

(EAGF and EAFRD — Expenditure excluded from financing — Regulation (EC) No 1698/2005 — Axis 4 ‘Leader’ — Regulation (EU) No 65/2011 — Administrative checks — Obligation to implement a suitable system for evaluating the reasonableness of the costs — Contribution in kind in the form of unpaid voluntary work — Contribution in kind in the form of a contribution of immovable property — On-the-spot checks — Presence of documents supporting payment claims — Implementation of operations financed in accordance with the rules on public procurement)

1. Agriculture — EAGF and EAFRD financing — Grant of aid and premiums — Obligation on the Member States to organise an effective system of administrative and on-site inspections — Scope — Unreliable controls — Disallowance (European Parliament and Council Regulation No 1306/2013, Art. 52(2)) (see paras 38, 39)

2. Agriculture — EAGF and EAFRD financing — Clearance of accounts — Disallowance of expenses arising from irregularities in applying EU rules — Finding of defects in the control system established by a Member State — Challenge by the Member State concerned — Burden of proof — Shared by the Commission and the Member State (European Parliament and Council Regulation No 1306/2013, Art. 52(2)) (see paras 40-43, 79, 85, 109, 126, 127)

3. Agriculture — EAGF and EAFRD financing — Clearance of accounts — Disallowance of expenses arising from irregularities in applying EU rules — Finding of defects in the control system established by a Member State — Assessment of losses suffered by the funds — Irregular expenses not capable of determination with sufficient precision — Assessment based on flat-rate corrections — Lawfulness (European Parliament and Council Regulation No 1306/2013, Art. 52(2)) (see paras 89-91, 94, 95)

4. EU law — Interpretation — Provision containing no express reference to the law of Member States — Independent and uniform interpretation — Concept of provision of land or real estate (Regulation No 1974/2006, Art. 54(1)(a)) (see paras 130-142)

5. Agriculture — EAGF and EAFRD financing — Grant of aid and premiums — Obligation on the Member States to organise an effective system of administrative and on-site inspections — Drawing up a report for every on-the-spot check — Necessary content (Council Regulation No 65/2011, Arts 26(1)(a) and (d) and 27(1)) (see paras 149-152, 160, 161, 167, 168, 176, 177, 183-185, 190)

Re:

Application under Article 263 TFEU for annulment of Commission Implementing Decision (EU) 2017/1144 of 26 June 2017 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2017 L 165, p. 37), in so far as it excludes certain expenditure incurred by the Republic of Lithuania.

Operative part

The Court:

1. Dismisses the action;

2. Orders the Republic of Lithuania to bear its own costs and pay those incurred by the European Commission;
Officials – Competitions – Holding of an open competition – Languages of participation in tests – Restriction of the choice of the second and third language – Discrimination based on language – Justification having regard to the interests of the service – Observance of the principle of proportionality

(Staff Regulations of Officials, Arts 1d(1) and (6), 27 and 28(f) and Annex III, Art. 1(1)(f); Council Regulation No 1, Art. 1)

(see paras 68-72, 75-77, 94, 106)
36

As regards the exception relating to the protection of documents for internal use, the reasons given by the ECB, in the contested decision, to justify its refusal to grant access were as follows: ‘The Executive Board wishes to clarify that the subject matter of the present application is the legal opinion commissioned to provide the ECB’s decision-making bodies with further legal insight for their internal deliberations and reflections and, as such, is also protected under Article 4(3), first subparagraph, of Decision [2004/258] … The legal opinion was intended to provide legal expertise to clarify the legal framework, enrich the internal considerations of the decision-making bodies and support their [emergency liquidity assistance]-related deliberations and discussions not only in 2015, but also on future occasions. As such, it serves any ongoing or future considerations of cases within the scope of Article 14.4 of the [Protocol on the ESCB and the ECB] … The Executive Board agrees with the assessment of the Director-General Secretariat that disclosure of the document would undermine the possibility of an effective, informal and confidential exchange of views taking place among the members of the decision-making bodies and, as a consequence, would limit the ECB’s “space to think”. Taken out of context or seen in isolation, it could potentially affect the independence of Governing Council members, a fundamental principle of the ESCB protected by Article 130 TFEU, especially in respect of [national central banks] that are providing, or intend to provide, [emergency liquidity assistance] or are performing other national functions.’
3

Article 42c of the Staff Regulations, which is part of the same chapter, provides as follows: ‘At the earliest five years before the official’s pensionable age, an official with at least ten years of service may be placed by decision of the appointing authority on leave in the interests of the service for organisational needs linked to the acquisition of new competences within the institutions. The total number of officials placed on leave in the interests of the service each year shall not be higher than 5% of the officials in all institutions who retired the previous year. The total number thus calculated shall be allocated to each institution according to their respective numbers of officials [as] at 31 December of the preceding year. The result of such allocation shall be rounded up to the nearest whole number in each institution. Such leave shall not constitute a disciplinary measure. The duration of the leave shall correspond in principle to the period until the official reaches pensionable age. However, in exceptional situations, the appointing authority may decide to put an end to the leave and reinstate the official. When the official placed on leave in the interests of the service reaches pensionable age, he shall automatically be retired. Leave in the interests of the service shall be governed by the following rules: (a) another official may be appointed to the post occupied by the official; (b) an official on leave in the interests of the service shall not be entitled to advancement to a higher step or promotion in grade. An official thus placed on leave shall receive an allowance calculated in accordance with Annex IV. At the official’s request, the allowance shall be subject to contributions to the pension scheme, calculated on the basis of that allowance. In such a case, the period of service as an official on leave in the interests of the service shall be taken into account for the purpose of calculating years of pensionable service within the meaning of Article 2 of Annex VIII. The allowance shall not be subject to a correction coefficient.’
6

Article 3 of Protocol (No 36) on transitional provisions (OJ 2016 C 202, p. 321; ‘Protocol No 36’) provides: ‘1. In accordance with Article 16(4) [TEU], the provisions of that paragraph and of Article 238(2) [TFEU] relating to the definition of the qualified majority in the European Council and the Council shall take effect on 1 November 2014. 2. Between 1 November 2014 and 31 March 2017, when an act is to be adopted by qualified majority, a member of the Council may request that it be adopted in accordance with the qualified majority as defined in paragraph 3. In that case, paragraphs 3 and 4 shall apply. 3. Until 31 October 2014, the following provisions shall remain in force, without prejudice to the second subparagraph of Article 235(1) [TFEU]. For acts of the European Council and of the Council requiring a qualified majority, members’ votes shall be weighted as follows: Belgium 12 Bulgaria 10 Czech Republic 12 Denmark 7 Germany 29 Estonia 4 Ireland 7 Greece 12 Spain 27 France 29 Croatia 7 Italy 29 Cyprus 4 Latvia 4 Lithuania 7 Luxembourg 4 Hungary 12 Malta 3 Netherlands 13 Austria 10 Poland 27 Portugal 12 Romania 14 Slovenia 4 Slovakia 7 Finland 7 Sweden 10 United Kingdom 29 Acts shall be adopted if there are at least 260 votes in favour representing a majority of the members where, under the Treaties, they must be adopted on a proposal from the Commission. In other cases decisions shall be adopted if there are at least 260 votes in favour representing at least two thirds of the members. A member of the European Council or the Council may request that, where an act is adopted by the European Council or the Council by a qualified majority, a check is made to ensure that the Member States comprising the qualified majority represent at least 62% of the total population of the Union. If that proves not to be the case, the act shall not be adopted. 4. Until 31 October 2014, the qualified majority shall, in cases where, under the Treaties, not all the members of the Council participate in voting, namely in the cases where reference is made to the qualified majority as defined in Article 238(3) [TFEU], be defined as the same proportion of the weighted votes and the same proportion of the number of the Council members and, if appropriate, the same percentage of the population of the Member States concerned as laid down in paragraph 3 of this Article.’
84

Those factors indicate, in conjunction with the arguments advanced by the Commission in the course of the proceedings, including in response to the Court’s written questions (see paragraphs 78 to 80 above), that the Commission was satisfied with those observations on the part of the Slovak authorities on the recipient undertaking’s situation, such as it was prior to the transfer of the shares in that undertaking to company N., that is to say when it was still under the control of company P. That assessment is confirmed by the grounds in paragraph 57(d) of the contested decision, in which the Commission states its position on the applicant’s complaint, taking account of the Slovak authorities’ observations. In essence, the Commission points out in that paragraph that those authorities adequately demonstrated that the recipient undertaking constituted an SME when the aid at issue was granted, which happened, under the applicable Slovak law, on 7 November 2013. The Commission considers in that paragraph that the recipient undertaking and company N. have no links, within the meaning of the concepts of ‘partner enterprises’ or ‘linked enterprises’ as defined in Article 3(2) and the first to third subparagraphs of Article 3(3) of the annex to the SME Recommendation, the wording of which corresponds to that of Article 3(2) and (3) of Annex I to Regulation No 651/2014. Similarly, it considers that, taking account of the case-law and its decision-making practice, in the present case the criterion of enterprises linked through a natural person or group of natural persons acting jointly, provided that, at least, part of their activity is carried out in the same relevant market or in adjacent markets, within the meaning of the fourth and fifth subparagraphs of Article 3(3) of the annex to that recommendation, the wording of which corresponds to that of the fourth and fifth subparagraphs of Article 3(3) of Annex I to that regulation, is not satisfied. In the absence of evidence of significant commercial links, in particular in the form of contracts of sale or purchase, shared suppliers or other business interests, with the recipient undertaking, on the one hand, and company N. and its principal shareholder, on the other, that undertaking and that company cannot be classified as linked enterprises as at the time the aid at issue was granted. The Commission thus concludes, like the Slovak authorities, that that undertaking, taken together with company N., constitutes an SME. In support of that conclusion, the contested decision includes a table setting out the joint staff headcount, the combined turnover and the combined annual results of the recipient undertaking and company N. for the years 2010 to 2015.
Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — General reference to other documents not annexed to the application — Inadmissibility

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

(see paras 14, 15)
Judgment of the General Court (Single Judge) of 13 December 2018 –

Yado v EUIPO — Dvectis CZ (Support pillow)

(Case T‑30/18)

(Community design — Invalidity proceedings — Community design No 2371591-0001 (Support pillow) — Inadmissibility of the appeal before the Board of Appeal — Sending of a document to EUIPO by means of a contact form — Sending of a document to EUIPO by electronic means and by fax)

Community designs — Appeals procedure — Form of appeal and period within which it must be brought — Transmission of a statement setting out the grounds of appeal — Transmission by fax — Burden of proof

(Council Regulation No 6/2002, Art. 57; Council Regulation No 2245/2002, Art. 65(1))

(see paras 27, 30, 31, 33-36)

Re:

Action brought against the decision of the Third Board of Appeal of EUIPO of 14 November 2017 (Case R 1017/2017-3) relating to invalidity proceedings between Dvectis CZ and Yado.

Operative part

The Court:

1. Annuls the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 14 November 2017 (Case R 1017/2017-3);

2. Orders EUIPO to bear its own costs and to pay those incurred by Yado s.r.o.;
Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — General reference to documents annexed to the application — Inadmissibility

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

(see para. 33)
Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Similar requirements for submissions made in support of a plea

(Statute of the Court of Justice, Art. 21, first para., and Art. 53, first para.; Rules of Procedure of the General Court, Art. 177(1)(d))

(see para. 49)
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 — Assessment of the likelihood of confusion — Determination of the relevant public — Attention level of the public (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 24, 25)
Judgment of the General Court (Sixth Chamber) of 8 May 2019 –

VI.TO. v EUIPO — Bottega (Shape of a golden bottle)

(Case T‑324/18)

( EU trade mark — Invalidity proceedings — Three-dimensional EU trade mark — Shape of a golden bottle — Absolute grounds for refusal — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001) — Distinctive character — Article 7(1)(e)(i) to (iii) of Regulation No 207/2009 (now Article 7(1)(e)(i) to (iii) of Regulation 2017/1001) )

1. Acts of the institutions — Temporal application — Retrospective effect of a substantive rule — Conditions (see para. 16)

2. EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Registration contrary to Article 7 of Regulation No 207/2009 — Relevant date for the examination of an absolute ground for nullity — Date of lodging the application for registration (Council Regulation No 207/2009, Art. 7(1)) (see para. 17)

3. EU trade mark — Procedural provisions — Examination of the facts of the EUIPO’s own motion — Invalidity proceedings concerning absolute grounds for refusal — Examination restricted to the submissions of the parties (Council Regulation No 207/2009, Arts 7(1) and 76(1)) (see para. 26)

4. EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Registration contrary to Article 7(1)(b) and (e), of Regulation No 207/2009 — Three-dimensional mark in the shape of a golden bottle (Council Regulation No 207/2009, Arts 7(1)(b) and (e)) (see paras 28-38, 44-48, 53)

5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Signs which consist exclusively of the shape of goods which is necessary to obtain a technical result — Meaning (Council Regulation No 207/2009, Art. 7(1)(e)(ii)) (see para. 54)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 14 March 2018 (Case R 1036/2017-1), relating to invalidity proceedings between VI.TO. and Mr Bottega.

Operative part

The Court:

1. Dismisses the action;