ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Third Chamber) of 11 November 2015 —

Greece v Commission

(Case T‑550/13)

‛EAGGF — Guarantee Section — EAGF and EAFRD — Expenditure excluded from financing — Reasonable period — Absence of key controls — Extrapolation of the findings of default’

1. Agriculture — Common agricultural policy — EAGGF financing — Clearance of accounts — Procedure — Obligations of the Commission — Duty to act within a reasonable time — Criteria for assessment — Infringement — Consequences (Charter of Fundamental Rights of the European Union, Art. 41(1); Council Regulations No 1258/1999, Art. 7(4), and No 1290/2005, Art. 31) (see paras 26-38)

2. Agriculture — Common agricultural policy — EAGGF financing — Clearance of accounts — Disallowance of expenses arising from irregularities in applying EU rules — Challenge by the Member State concerned — Burden of proof — Shared by the Commission and the Member State (see para. 48)

3. Agriculture — Common agricultural policy — EAGGF financing — Clearance of accounts — Disallowance of expenses arising from irregularities in applying EU rules — Extrapolation of findings of discrepancies in a Member State’s control system from one region to other regions — Lawfulness — Conditions (see paras 71-73)

4. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision relating to the clearance of accounts in respect of expenditure financed by the EAGGF (Art. 296 TFEU) (see paras 84-86)

Re:

APPLICATION for annulment of Commission Implementing Decision 2013/433/EU of 13 August 2013 on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2013 L 219, p. 49).

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Sixth Chamber) of 1 March 2017 —

France v Commission

(Case T‑366/13)

(State aid — Maritime cabotage — Aid implemented by France in favour of the Société nationale maritime Corse Méditerranée (SNCM) and the Compagnie méridionale de navigation — Service of general economic interest — Compensation for a service additional to the basic service intended to cover peak periods during the tourist season — Decision declaring aid incompatible with the internal market — Concept of State aid — Advantage — Altmark judgment)

1. State aid — Concept — Measures designed to compensate for the cost of public service missions undertaken by an undertaking — Exclusion — Conditions set out in the Altmark judgment (Art. 107(1) TFEU) (see paras 77-83)

2. Competition — Undertakings entrusted with the operation of services of general economic interest — Definition of services of general economic interest — Member States’ discretion — Limits — Monitoring by the Commission and judicial review limited to cases of manifest error — Possibility of assessment on the basis of guidelines previously adopted by the Commission (Arts 106(2) TFEU, 107(1) TFEU; Council Regulation No 3577/92, Arts 1 and 4; Commission Notice 2012/C 8/02, point 46) (see paras 92-96, 106)

3. State aid — Concept — Measures designed to compensate for the cost of public service missions undertaken by an undertaking — First condition set out in the Altmark judgment — Maritime cabotage sector — Definition of services of general economic interest — Genuine need for a public service — Scope — Obligation on the authorities to demonstrate a lack of private sector initiative (Art. 107(1) TFEU; Council Regulation No 3577/92, Arts 1 and 4) (see paras 98-101)

4. State aid — Concept — Measures designed to compensate for the cost of public service missions undertaken by an undertaking — First condition set out in the Altmark judgment — Maritime cabotage sector — Definition of services of general economic interest — Distinction between basic and additional service — No genuine need for a public service in relation to the additional service (Art. 107(1) TFEU) (see paras 110-117, 119-124, 127-129, 134, 135, 138, 141, 147, 156, 157, 161, 162, 168, 175)

5. State aid — Concept — Measures designed to compensate for the cost of public service missions undertaken by an undertaking — Fourth Altmark condition — Public contract procedure enabling selection of the candidate capable of providing the services in question at the least cost for the public purse — Scope (Art. 107(1) TFEU) (see para. 178)

Re:

ACTION under Article 263 TFEU for the annulment of Commission Decision 2013/435/EU of 2 May 2013 on State aid SA.22843 (2012/C) (ex 2012/NN) implemented by France in favour of Société Nationale Maritime Corse-Méditerranée (OJ 2013 L 220, p. 20).

Operative part

The Court:

1. Dismisses the action;
81

However, the introduction of such a clause is difficult to reconcile with the principle that the polluter should pay, which is established in the field of the environment in Article 191(2) TFEU. In accordance with that principle, the purpose of the trading scheme was to fix a price for greenhouse gas emissions and leave the operators to choose between paying the price or reducing their emissions (Poland v Commission, paragraph 63 above, EU:T:2013:113, paragraph 90). The principle that the polluter should pay is therefore essentially designed to make each installation concerned individually accountable. The introduction of a hardship clause would result in free allocation of supplementary allowances to some installations and the uniform reduction by the same amount of this type of allowances for installations in all sectors and sub-sectors concerned, on account of the need to apply the uniform cross-sectoral correction factor, since the maximum annual amount of allowances referred in Article 10a(5) of Directive 2003/87 cannot be increased. Increasing the quantities of allowances to be allocated free of charge for the installations concerned pursuant to a hardship clause could therefore result in a reduction of such quotas for other installations (see, to this effect, Poland v Commission, paragraph 63 above, EU:T:2013:113, paragraph 83). This could be envisaged if free allocation of emission allowances under the allowances trading scheme was governed by the principle of solidarity, as was the case with the quota system established on the basis of Article 58 of the ECSC Treaty, when faced with a manifest crisis in the iron and steel industry, to spread equitably throughout the iron and steel industry the unavoidable consequences of the adjustment of production to the reduced number of possibilities of disposal (Fabrique de fer de Charleroi and Dillinger Hüttenwerke v Commission, 351/85 and 360/85, ECR, EU:C:1987:392, paragraphs 13 to 16). However, the establishment of an emission allowance trading scheme falls within the scope of the environment, which is governed by the principle that the polluter should pay.
4

Under Article 4 of Regulation No 1049/2001, concerning exceptions to the right of access: ‘… 2. The institutions shall refuse access to a document where disclosure would undermine the protection of: — commercial interests of a natural or legal person, including intellectual property, — court proceedings and legal advice, — the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure. 3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure. Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure. 4. As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed. 5. A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement. 6. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released. 7. The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years. In the case of documents covered by the exceptions relating to privacy or commercial interests and in the case of sensitive documents, the exceptions may, if necessary, continue to apply after this period.’
28

Bearing in mind the purpose, the general scheme and the content of the provisions referred to in paragraphs 26 and 27 above, it must be concluded that the effect of the contested decision is to oblige all Member States other than the Kingdom of Denmark to take appropriate measures in relation to placing the Multione S630 on their respective markets, or to retaining it on the market, and, in so doing, to guarantee the proper and uniform application of Directive 2006/42, in the light of the measures adopted by the Danish authorities and found to be justified by the Commission, as the applicant essentially submits. In other words, as a result of the contested decision, each of the Member States other than the Kingdom of Denmark is obliged to determine, for its own part, whether or not the individual Multione S630 machines that could have been placed on its particular market by the applicant are fitted with an appropriate protective structure against falling objects or materials, and, consequently, whether or not those machines may remain on that market. To that extent, the direct consequence of the contested decision is to trigger national procedures that have an impact on the right that the applicant had, until then, enjoyed within the whole of the European Union, to market machinery that benefited from the presumption of conformity under Article 7 of that directive, since it bore the ‘CE’ marking and was accompanied by the EC declaration of conformity (see, by analogy, Commission v Infront WM, cited in paragraph 17 above, EU:C:2008:159, paragraphs 50 to 52).
126

Similarly, the applicant’s argument that it is clear from the contested regulation that its observations were not taken into account also cannot be accepted. In that regard, it should be noted that, as the applicant implicitly admits in its reply, that argument does not seek to allege a lack of reasoning in the contested regulation, but rather to show that the Commission was not in a position to consider or take into account its observations. However, according to the case-law, that alleged failure to take into account the applicant’s observations does not constitute a breach of its rights of defence or its right to be heard. Although for those rights to be observed, the EU institutions must enable the applicants to make their views known effectively, those institutions cannot be required to accept them. In order for the applicant’s submission of views to be effective, it is necessary only that they have been submitted in good time so that the EU institutions may take cognisance of them and assess, with all the requisite attention, their relevance for the content of the measure being adopted (see the judgment of 12 December 2014 in Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑643/11, ECR (Extracts), EU:T:2014:1076, paragraph 43 and the case-law cited). In any event, it must be pointed out, as the Council observes, that the Council is not required to respond, in a regulation fixing definitive anti-dumping duties, to all of the arguments advanced by the interested parties during the investigation procedure and that that failure to respond does not automatically establish a failure to consider those arguments. Moreover, the Court has held that it cannot be required that the statement of reasons for a definitive anti-dumping regulation specify the often very numerous and complex matters of fact and law to which the regulation relates or that the institutions adopt a position on all the arguments relied on by the parties concerned. On the contrary, it is sufficient for the institution which adopted the measure to set out the facts and the legal considerations having decisive importance in the scheme of the contested regulation (judgments of 13 September 2010 in Whirlpool Europe v Council, T‑314/06, ECR, EU:T:2010:390, paragraph 114, and of 20 May 2015 in Yuanping Changyuan Chemicals v Council, T‑310/12, EU:T:2015:295, paragraph 172).
75

Since the judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294), it has been settled case-law that the imputability of a measure to the State cannot be inferred from the mere fact that the measure at issue was taken by a public undertaking. Even if the State is in a position to control a public undertaking and to exercise a dominant influence over its operations, actual exercise of that control in a particular case cannot be automatically presumed. A public undertaking may act with more or less independence, according to the degree of autonomy left to it by the State. Therefore, the mere fact that a public undertaking is under State control is not sufficient for measures taken by that undertaking to be imputed to the State. It is also necessary to examine whether the public authorities must be regarded as having been involved, in one way or another, in the adoption of those measures. On that point, it cannot be demanded that it be demonstrated, on the basis of a precise inquiry, that the public authorities specifically incited the public undertaking to take the aid measures in question. In the first place, having regard to the fact that relations between the State and public undertakings are close, there is a real risk that State aid may be granted through those undertakings in a non-transparent way and in breach of the rules on State aid laid down by the Treaty. In the second place, it will, as a general rule, be very difficult for a third party, precisely because of the privileged relations existing between the State and a public undertaking, to demonstrate in a particular case that aid measures taken by such an undertaking were in fact adopted on the instructions of the public authorities. For those reasons, it must be accepted that the imputability to the State of an aid measure taken by a public undertaking may be inferred from a set of indicators arising from the circumstances of the case and the context in which that measure was taken. In addition, in its judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294), the Court of Justice clarified that any other indicator showing, in the particular case, an involvement by the public authorities in the adoption of a measure or the unlikelihood of their not being involved, having regard also to the compass of the measure, its content or the conditions which it contains, might, in certain circumstances, be relevant in concluding that a measure taken by a public undertaking is imputable to the State (see, to that effect, judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraphs 51 to 56, and of 17 September 2014, Commerz Nederland, C‑242/13, EU:C:2014:2224, paragraphs 31 to 34; of 10 November 2011, Elliniki Nafpigokataskevastiki and Others v Commission, T‑384/08, not published, EU:T:2011:650, paragraphs 50 to 54; and of 28 January 2016, Slovenia v Commission, T‑507/12, not published, EU:T:2016:35, paragraphs 65 to 69).
2.

Community trade mark — Definition and acquisition of the Community 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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 22)
2.

Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods — Aim — Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 18)
Judgment of the General Court (Third Chamber) of 29 June 2015 — Grupo Bimbo v OHIM (Shape of a Mexican tortilla)

(Case T‑618/14)

‛Community trade mark — Application for three-dimensional Community mark — Shape of a Mexican tortilla — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Trade mark made up of several elements — Possible for the competent authority to examine each of the elements making up the trade mark — Need to take account of the overall perception of the combination by the relevant public (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 15)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional trade marks consisting of the shape of the product itself — Distinctive character — Criteria for assessment — Shape in question being a ‘variant’ of the habitual shapes of the type of products concerned — Fact not sufficient to establish distinctiveness of the mark (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 23-27)

3. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Scope — No obligation to prove matters within common knowledge — Dispute before the General Court (Council Regulation No 207/2009, Art. 76(1)) (see para. 28)

4. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Registration of a new trade mark — Absolute grounds for refusal — Burden of proof (Council Regulation No 207/2009, Arts 7(1), and 76(1)) (see paras 29, 32)

5. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional trade mark constituted by the shape of a Mexican tortilla (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 43, 44)

6. Community trade mark — Definition and acquisition of the Community 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 (Council Regulation No 207/2009) (see para. 48)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 3 June 2014 (Case R 2449/2013-2) concerning an application for registration of a three-dimensional sign consisting of the shape of a Mexican tortilla.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Eighth Chamber) of 21 May 2015 —

Evyap v OHIM — Megusta Trading (nuru)

(Case T‑56/14)

‛Community trade mark — Opposition proceedings — Application for a Community figurative mark representing a wiggly line — Earlier national and international word and figurative marks DURU — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009’

1. Community 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. 8(1)(b)) (see paras 19-21)

2. Community trade mark — Definition and acquisition of the Community 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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 28)

3. Community trade mark — Definition and acquisition of the Community 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 representing a wiggly line — Word and figurative marks DURU (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 29, 33, 34, 47)

4. Community trade mark — Definition and acquisition of the Community 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 — Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 30, 32)

5. Community trade mark — Definition and acquisition of the Community 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 — Weighting of the elements of similarity or difference between the signs — Taking into account of the intrinsic characteristics of the signs or the marketing conditions of the goods or services (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 44-46)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 6 November 2013 (Case R 1861/2012-4) concerning opposition proceedings between Evyap Sabun Yağ Gliserin Sanayi ve Ticaret A.Ş. and Megusta Trading GmbH.

Operative part

The Court:

1. Dismisses the action;
Keywords

Subject of the case

Operative part



Keywords

Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Concept (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 21, 22)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted by a colour or a combination of colours (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 23-26)

3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Assessment of distinctive character — Criteria (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 27)

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Figurative mark representing white dots on a blue background (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 56, 57)

5. Community trade mark — Definition and acquisition of the Community 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 (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 59)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 20 November 2013 (Case R 495/2013-1) relating to an application for registration as a Community trade mark of a figurative sign representing white dots on a blue background.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders EE Ltd to pay the costs.