ddrg/super_eurlex huggingface dataset:
The date which must be regarded as decisive as regards assessment of whether a payment was made within the period of 24 months must be that on which the final amount of the aid is fixed and the balance paid by the Member State concerned. It follows that, in accordance with the terms used in Article 31(4)(c) of Regulation No 1290/2005 on the financing of the common agricultural policy — which mentions ‘expenditure’ for which ‘payment’ or, as the case may be, ‘payment of the balance’ was made prior to the beginning of the relevant period of 24 months — the Commission may apply a financial correction to payments made prior to the beginning of that period where they relate to expenditure for which the final amount is fixed and the balance is paid by the Member State concerned after the beginning of the relevant period of 24 months.

(see para. 19)
Judgment of the General Court (Fourth Chamber) of 12 July 2019 –

Café del Mar and Others v EUIPO — Guiral Broto (C del M)

(Case T‑774/17)

(EU trade mark — Invalidity proceedings — EU figurative mark C del M — Absolute ground for refusal — Bad faith — Article 52(1)(b) of Regulation (EC) No 207/2009 (now Article 59(1)(b) of Regulation (EU) 2017/1001))

1. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Direction addressed to the Office — Not Precluded (Council Regulation No 207/2009, Art. 65(6)) (see para. 18)

2. EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Applicant in bad faith when lodging the trade mark application — Criteria for assessment — Taking into account of all relevant factors at the time of filing the application for registration — Applicant’s knowledge that a third party is using an identical or similar sign — Intention of the applicant — Degree of legal protection of the signs at issue — Commercial logic underlying the registration of the contested sign as an EU trade mark — Chronology of events characterising the filing of the trade mark application — Origin of the sign at issue and its use since its creation (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 27-32)

3. EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Applicant in bad faith when lodging the trade mark application — Marque figurative C del M (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 49-56)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 4 September 2017 (Case R 1618/2015-5), relating to invalidity proceedings between, on the one hand, Café del Mar, Mr Les Viamonte and Mr Andrea González and, on the other, Mr Guiral Broto.

Operative part

The Court:

1. Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 September 2017 (Case R 1618/2015-5);

2. Orders EUIPO to bear its own costs and to pay those incurred by Café del Mar SC, Mr José Les Viamonte and Mr Carlos Andrea González in the proceedings before the General Court;
Judgment of the General Court (Second Chamber) of 14 May 2019 –

Marinvest and Porting v Commission

(Case T‑728/17)

(State aid — Pleasure port infrastructure — Concession for the management of a port and the provision of infrastructures and services without economic consideration — Decision finding that there is no State aid — Effect on trade between Member States)

1. State aid — Administrative procedure — Right of the persons concerned to be heard — Limits (Art. 108(2) TFEU; Charter of Fundamental Rights of the European Union, Art. 41; Council Regulation 2015/1589, Art. 24(2)) (see paras 40-46)

2. Action for annulment — Admissibility — Dismissal of an action on the substance without ruling on admissibility — Discretion of the Courts of the Union (Art. 263 TFEU) (see paras 76, 77)

3. State aid — Meaning — Criteria for assessment — Cumulative conditions (Art. 107(1) TFEU) (see paras 78, 79)

4. State aid — Effect on trade between Member States — Adverse effect on competition — Criteria for assessment (Art. 107(1) TFEU) (see paras 80, 81)

5. State aid — Meaning — Legal nature — Interpretation on the basis of objective factors — Judicial review — Scope (Art. 107(1) TFEU) (see paras 83-85)

6. State aid — Commission decision — Assessment of the legality by reference to the information available at the time of adoption of the decision (Arts 107 and 108(2) TFEU) (see para. 92)

7. State aid — Examination by the Commission — Discretion of the Commission — Possibility of adopting guidelines — Judicial review — Limits (Art. 107(1) TFEU) (see para. 108)

Re:

Application based on Article 263 TFEU seeking annulment of Commission decision C(2017) 5049 final of 20 July 2017 on State aid SA.45220 (2016/FC) — Slovenia — Alleged aid in favour of Komunala Izola d.o.o.

Operative part

The Court:

1. Dismisses the action;

2. Orders Marinvest d.o.o. and Porting d.o.o. to bear their own costs and to pay those incurred by the European Commission;
Economic, social and territorial cohesion — Structural assistance — European Union funding — Major projects — Assessment — Criteria for assessment — Obligation to adhere to the selection criteria set by the Member State which selected the project — None — Breach of the principle of sincere cooperation — None

(Art. 4(3) TEU; Council Regulation No 1083/2006, Recital 49 and Arts 39 to 41)

(see paras 68-73, 77, 79, 80)
EU agencies — Agency for the Cooperation of Energy Regulators (ACER) — Powers — Scope — Terms and conditions for access and operational security of cross-border electricity and gas infrastructure — Approval of a proposal of the transmission system operators regarding the determination of capacity calculation regions — Included — Conditions

(European Parliament and Council Regulation No 713/2009, Art. 8(1); Commission Regulation 2015/1222, Art. 9(10), (11) and (12))

(see paras 51-55, 59, 60)
Judgment of the General Court (Eighth Chamber) of 27 October 2021 –

Clean Sky 2 Joint Undertaking v Revoind Industriale di Pindaru Gelu

(Case T‑269/17)

(Arbitration clause – Grant agreement concluded in the framework of the Seventh Framework Programme for research and technological development including demonstration activities (2007-2013) – Non-performance of the contract – Repayment of the amounts advanced – Default interest – Procedure by default)

Judicial proceedings – Action before the General Court – Application of the default procedure – Obligation of the Court to rule on the applicant’s pleas – Conditions

(Rules of Procedure of the General Court, Art. 123(3))

(see paras 25-27, 35)

Re:

Action brought under Article 272 TFEU seeking an order for Revoind Industriale di Pindaru Gelu to repay the advanced payment paid under the Grant Agreement for partners No 325954, plus accrued late payment interest.

Operative part

The Court:

1. Orders Revoind Industriale di Pindaru Gelu Sas to pay Clean Sky 2 Joint Undertaking the amount of EUR 433 485.93, together with default interest calculated at 3.5% per annum from 7 February 2017 and until the date of full payment of the amount due;
51

According to the settled case-law of the Court of Justice, the principle of proportionality requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not go beyond what is necessary in order to achieve those objectives (judgment of 8 April 2014, Digital Rights Ireland and Others, C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 46 and the case-law cited). In addition, in view of the appointing authority’s wide discretion in deciding upon the criteria of abilities required for the posts to be filled and in specifying, on the basis of those criteria and, more generally, in the interests of the service, the conditions and procedure for organising a competition (judgment of 5 February 1997, Petit-Laurent v Commission, T‑211/95, EU:T:1997:13, paragraph 54), the legality of the competition notice can be affected only if the condition at issue is manifestly inappropriate having regard to the objectives pursued (see, to that effect, judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 52). Lastly, it should be noted that, as is apparent from the first paragraph of Article 27 of the Staff Regulations, the purpose of any competition organised within the European Union is to secure for the institution, as for any body, the services of officials of the highest standard of ability, efficiency and integrity (judgment of 14 April 2011, Clarke and Others v OHIM, F‑82/08, EU:F:2011:45, paragraph 181).
72

Thirdly, the fact that the Commission submits that it had asked the Belgian investigating magistrates and Public Prosecutor if it was possible to hear the applicant on the subject of their requests to waive immunity, which is indeed confirmed by the correspondence in the annex to the defence, is not sufficient in the present case to find that the Commission correctly weighed up the applicant’s interest in being heard and the preservation of investigative confidentiality. The responses of the Belgian national authorities were incomplete when, in accordance with the principle of sincere cooperation required of both the EU institutions and the Member States, they should have been expected to provide more complete responses in order for the Commission to understand the reasons for which they refused to allow the Commission to hear the applicant. In any event, it is not apparent from the file before the Court that the Commission asked the Belgian national authorities whether it was possible for them to draw up a non-confidential version of the requests to waive immunity that could have been communicated to the applicant or, at the very least, to indicate which elements in those requests they regarded as being sensitive. Such communication would have been capable, as the case may be, of ensuring that the interests in question were appropriately weighed up, with a view to preserving, as far as possible, both investigative confidentiality and the respect of the right to be heard.
32

In the present case, it should be observed that, as the Commission argues, first, the letter of 5 December 2013 cites the legislation applied by it, namely Article 13 of Regulation No 1290/2005, on the one hand, and Article 12(c) and Article 25 of Regulation No 247/2006, on the other. Second, that letter restates the purpose of the measure provided for in point 4.6 of Annex I to the sub-programme for the autonomous region of the Azores and the categories of expenditure eligible for EU financing listed by that measure. Third, the same letter identifies the expenditure examined by the Commission stating, in relation to each item of that expenditure, the financial year in question, the authority responsible for the expenditure and both the purpose and the amount of that expenditure. Fourth, the letter states that ‘all the expenditure [at issue] was used to finance the personnel and equipment necessary for the inspections conducted by the [Portuguese authorities] in connection with the [support] programme’. Fifth, the letter explains that the expenditure incurred by the authorities of the Member States within the context of their administrative and control obligations are connected with the primary activity of the paying agencies, with the result that that expenditure cannot be borne by the EAGF. Sixth, that letter finds the expenditure at issue to be ineligible for financing under the EAGF because it does not comply with the provisions of Article 13 of Regulation No 1290/2005, on the one hand, and with Article 12(c) and Article 25 of Regulation No 247/2006, on the other.
62

In that regard, it should be noted that, although notification by registered letter with acknowledgement of receipt is not the only possible means of notification of administrative decisions, it remains a particularly safe solution due to the specific guarantees it offers both to the individual concerned and to the administration (see, to that effect, order of 16 December 2010, AG v Parliament, F‑25/10, EU:F:2010:171, paragraph 38), especially when the individual concerned is external to the institutions (see, to that effect, order of 16 December 2010, AG v Parliament, F‑25/10, EU:F:2010:171, paragraph 39). One of those guarantees is the confirmation afforded by the addressee’s signature on the acknowledgement of receipt that the addressee knows that a letter is addressed to him and requires his attention. It is clear from the file that a read receipt differs from a postal acknowledgement of receipt in that it offers no such guarantee. Unlike the signature on an acknowledgement of receipt by the addressee of a letter, or the composing and sending of a confirmation of receipt of an email by its addressee, the read receipt at issue, which is generated and sent automatically by the addressee’s computer system as described in paragraph 61 above, does not enable it to be established beyond doubt that the applicant was aware of or was placed in a position to become acquainted with the letter at issue on the day that the read receipt was sent.
48

While it is true, as the Commission submits, that the case-law referred to in paragraph 45 above does not require that a hearing be held and that a report or minutes be drawn up concerning that hearing in order to ensure that the right to be heard is respected, it is nevertheless the Commission’s responsibility, where a member of the temporary staff alleges, as in the present case, that his right to be heard was not respected, to prove that the person concerned was given the opportunity to submit his observations on the Commission’s intention to terminate his contract on the ground of a breakdown in the relationship of trust. Moreover, the fact that the Cabinets of Members of the Commission are small entities, as pointed out by the Commission, does not in itself support the conclusion that a staff member holding a position in one of those cabinets was validly heard before a decision was made to dismiss him. Lastly, although the applicant has not provided any explanation or justification as regards the meetings in September and December 2015 alleged by the Commission, it suffices to note that he disputes the Commission’s assertions that he was validly heard during those meetings, and mere assertions by the Commission cannot be given primacy over the denials of the other party (see, to that effect, judgment of 6 December 2007, Marcuccio v Commission, C‑59/06 P, EU:C:2007:756, paragraphs 69 and 70).
25

The Parliament states, in that regard, that, in the judgment of 11 September 2013 in L v Parliament (T‑317/10 P, EU:T:2013:413, paragraphs 68 to 70), the Court held that the existence of a relationship of trust is not based on objective factors and by its very nature cannot be subject to judicial review, since the Court cannot substitute its assessment for that of the AECE, ‘but [had to] confine itself to checking whether the facts referred to by the institution on which its decision was based [were] substantively correct’. That, it is contended, is the case here. The relationship of trust between the MEP and the applicant had been broken because the applicant had performed outside activities in breach of Article 12b(1) of the Staff Regulations. The Parliament points out, first of all, that it is undisputed that the applicant neither applied for nor received any authorisation to engage in an outside activity in accordance with that provision. Subsequently, during his meeting with the AECE and the Conciliator, the applicant repeatedly admitted to having carried out such activities. Finally, the applicant expressly confirmed the existence of outside activities in the note of 9 May 2016.
36

In support of their claims, the applicants put forward three main complaints. First, they claim that the aid scheme at issue must be categorised as an existing aid scheme, under Article 1(b)(i) of Regulation 2015/1589, because the possibility for local authorities to award subsidies to undertakings providing public passenger transport services by road was ushered in by Article 19 of décret no 49-1473, du 14 novembre 1949, relatif à la coordination et à l’harmonisation des transports ferroviaires et routiers (Decree No 49-1473 of 14 November 1949 on the coordination and harmonisation of rail and road transport) (JORF of 15 November 1949, p. 11104; ‘the 1949 Decree’), before the entry into force of the Treaty establishing the European Economic Community (now the TFEU) in France on 1 January 1958. Secondly, they submit that since the public transport markets of the Member States of the European Union were closed to competition before 1995, the date used in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), concerning the opening up of those markets, the Commission was not entitled to find that the aid granted under the aid scheme at issue already constituted aid within the meaning of Article 107(1) TFEU at the time it was introduced and was therefore not capable of constituting existing aid under the first sentence of Article 1(b)(v) of Regulation 2015/1589. Thirdly, they maintain that the analysis carried out by the Commission as to whether the aid scheme at issue involved new or existing aid in the light of Article 1(b)(v) of Regulation 2015/1589 does not enable them to ascertain the reasons why the Commission considered that the investment subsidies awarded by the Region were, as soon as they were implemented, a State aid scheme for the purposes of Article 107(1) TFEU.
56

Nevertheless, the Commission must, however, without being required to submit a final analysis of the aid in question, define sufficiently the framework of its investigation so as not to render meaningless the right of interested parties to put forward their comments (judgment of 31 May 2006, Kuwait Petroleum (Nederland) v Commission, T‑354/99, EU:T:2006:137, paragraph 85). The Court has in particular held that, where the legal rules under which a Member State had notified proposed aid changed before the Commission takes its decision, the Commission had, with a view to giving its decision, as it was obliged to do, on the basis of the new rules, to ask the interested parties to express their views on the compatibility of that aid with those rules (see judgment of 11 December 2008, Commission v Freistaat Sachsen, C‑334/07 P, EU:C:2008:709, paragraph 56 and the case-law cited). It has also been held that it is not only if the Commission realised, once a decision to open the formal investigation procedure has been adopted, that that decision is based either on incomplete facts or on an incorrect legal classification of those facts, that it had to be able, even be under an obligation, to alter its position by adopting a correction decision or a new opening decision, in order to allow the interested parties to submit useful observations (see, to that effect, judgment of 30 April 2019 in UPF v Commission, T‑747/17, EU:T:2019:271, paragraph 76 and the case-law cited). It is only when the Commission changes its reasoning, following the decision to open an investigation, on facts or a legal description of those facts which prove decisive in its assessment of the existence of an aid or its compatibility with the internal market, that it must correct the opening decision or extend it, in order to allow the interested parties to submit useful observations (see, to that effect, judgment of 30 April 2019, UPF v Commission, T‑747/17, EU:T:2019:271, paragraph 77).
EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Separate examination of the grounds for refusal in relation to each of the goods 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. 20)
Judgment of the General Court (Third Chamber) of 13 March 2019 –

Wirecard Technologies v EUIPO — Striatum Ventures (supr)

(Case T‑297/18)

(EU trade mark — Invalidity proceedings — EU word mark supr — Earlier Benelux word mark Zupr — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 60(1)(a) and 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 18, 66-68)

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 — 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 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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 24, 30)

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 — Likelihood of confusion with the earlier mark — Word marks supr and Zupr (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 39, 55, 58, 63, 75-78)

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 — Whether conceptual differences may counteract visual or phonetic similarities — Conditions (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 74)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 20 February 2018 (Case R 2028/2017-5), relating to invalidity proceedings between Striatum Ventures and Wirecard Technologies.

Operative part

The Court:

1. Dismisses the action;
EU trade mark — Procedural provisions — Statement of reasons for decisions — Article 94(1), first sentence, of Regulation 2017/1001 — Scope identical to that of Article 296 TFEU

(Art. 296, second para. TFEU; European Parliament and Council Regulation 2017/1001, Art. 94(1), first sentence)

(see paras 70, 71)
EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Overlap of the scope of the grounds set out in Article 7(1)(b) and Article 7(1)(c) of Regulation 2017/1001

(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b) and (c))

(see para. 32)