ddrg/super_eurlex huggingface dataset:
Judgment of the Court of First Instance (Second Chamber) of 17 June 2009 — Portugal v Commission

(Case T-50/07)

‛EAGGF — Guarantee Section — Expenditure excluded from Community financing — Arable crops — Durum wheat — Period of 24 months — First communication referred to in Article 8(1) of Regulation (EC) No 1663/95 — On-the-spot checks — Remote sensing — Effectiveness of checks — Results of checks — Corrective action to be taken by the Member State concerned — Existence of financial harm to the EAGGF’

1. Agriculture — EAGGF — Clearance of accounts (Council Regulations Nos 729/70, Art. 5(2)(c), and 1258/1999, Art. 7(4), fifth para.; Commission Regulation No 1663/95, Art. 8(1), first, second and fourth subparas) (see paras 27-30, 32-34, 74-77, 84-87, 95-97)

2. Agriculture — Common agricultural policy — EAGGF financing (Commission Regulation No 3887/92, Art. 6(1)) (see paras 101, 102)

Re:

APPLICATION for partial annulment of Commission Decision 2006/932/EC of 14 December 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2006 L 355, p. 96), in so far as it excludes from Community financing certain expenditure incurred by the Portuguese Republic in the sector of arable crops (durum wheat).

Operative part

The Court:

1. Annuls Commission Decision 2006/932/EC of 14 December 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) in so far as that decision excludes in respect of the Portuguese Republic certain expenditure incurred in the sector of arable crops (durum wheat) during the marketing year 2003;

2. Dismisses the action as to the remainder;
Keywords

Subject of the case

Operative part



Keywords

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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 34, 36, 39)

2. Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Partial use (Council Regulation No 40/94, Art. 43(2) and (3)) (see paras 42-43)

Subject of the case

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 7 September 2007 (Case R 223/2007-2), relating to opposition proceedings between Bodegas Montebello, SA and Montebello SARL.

Information relating to the case

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Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Bodegas Montebello, SA to pay the costs.
Judgment of the Court of First Instance (Seventh Chamber) of 16 September 2009 — Dominio de la Vega v OHIM — Ambrosio Velasco (DOMINIO DE LA VEGA)

(Case T-458/07)

‛Community trade mark — Opposition proceedings — Application for Community figurative mark DOMINIO DE LA VEGA — Earlier Community figurative mark PALACIO DE LA VEGA — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009’

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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 26-29, 45-55)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 3 October 2007 (Case R 1431/2006-2) relating to opposition proceedings between Ambrosio Velasco, SA and Dominio de la Vega, SL.

Information relating to the case

Applicant for the Community trade mark: Dominio de la Vega, SL Community trade mark sought: Figurative mark DOMINIO DE LA VEGA for goods in Classes 33, 42 and 43 — Application No 2789576 Proprietor of the mark or sign cited in the opposition proceedings: Ambrosio Velasco, SA Mark or sign cited in opposition: Figurative Community trade mark PALACIO DE LA VEGA for goods in Class 33 — Application No 78147 Decision of the Opposition Division: Opposition upheld for all those goods, in Class 33, against which it was directed, and rejection of the application for those goods Decision of the Board of Appeal: Appeal dismissed

Operative part

The Court:

1. Dismisses the action;
The figurative sign representing a hand holding a rectangular figure resembling a card, together with three triangles pointing in the same direction, for which registration is sought for goods and services in Classes 9, 35, 38 and 42 within the meaning of the Nice Agreement, is devoid of distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, since it will be perceived by the relevant public as an indication as to use, intended to indicate the steps to be taken in using a card in order to carry out a transaction, and not as an indication of the commercial origin of the goods and services concerned. The average consumer encounters on a daily basis that type of indication as to use in various places, such as banks, supermarkets, railway stations, airports, car parks and telephone boxes.

The context in which the light-coloured rectangular figure is placed, namely the stylised hand which holds it and the three directional triangles, as well as the goods and services concerned, leaves no room for doubt with regard to the perception of that sign by the relevant public. Likewise, the group of three black triangles, by reason of its inclusion in the sign at issue, does not have distinctive character, because it is perceived by the relevant public as being composed of directional arrows having a utilitarian function, namely to indicate where the magnetic stripe card must be inserted into the dispenser. Thus, those triangles are not distinctive with respect to any of the classes of the goods and services concerned.

The conclusion relating to the absence of distinctive character applies to all the goods and services concerned, which are connected to the use of electronic payment cards and to carrying out transactions involving the use of those cards, such as electronic payments by way of a magnetic stripe card (Class 9), to the administrative management of automated dispensers (Class 35), to electronic payment systems on IT networks (Class 42), to the marketing of magnetic stripe payment cards and to transactions carried out using those cards (Class 36), and also to methods of telecommunications and transmission of electronic information serving as a sort of message according to which those services can be obtained using a magnetic stripe card (Class 38).

In that regard, it has not been demonstrated that it would be wrong to think that, account being taken of the goods and services concerned, the mark applied for would be perceived by the relevant public as directly and necessarily linked to the carrying out of electronic payment transactions by means of a magnetic stripe card.

(see paras 37-41)
Keywords

Subject of the case

Operative part



Keywords

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 (Council Regulation No 40/94, Art. 7(1)(c)) (see paras 25-31

)

Subject of the case

Re:

Three actions brought against the decisions of the Fourth Board of Appeal of OHIM of 21 December 2006 (Cases R 1033/2006-4, R 1034/2006-4 and R 1035/2006-4) concerning applications for registration of word marks 350, 250 and 150 as Community trade marks.

Information relating to the case

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Operative part

Operative part

The Court:

1. Dismisses the actions;

2. Orders Agencja Wydawnicza Technopol sp. z o.o. to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 52, 71

)

Subject of the case

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 22 October 2007 (Case R 1267/2006-4) concerning opposition proceedings between SAT.1 SatellitenFernsehen GmbH and Notartel SpA – Società informatica del Notariato.

Information relating to the case

>lt>1

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Notartel SpA – Società informatica del Notariato to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

European Union

–

Institutions

–

Right of public access to documents

–

Regulation No 1049/2001

–

Exceptions to the right of access to documents (European Parliament and Council Regulation No 1049/2001, Arts 4(2), 1st to 3rd indents, 3 and 6) (see paras 58-61, 64, 76-77, 79-80, 89, 94-99, 101-104, 110-116, 124-129, 131-132, 141-142, 144

)

Subject of the case

Re:

ACTION for annulment of, first, the Commission’s decision of 2 August 2006 refusing the applicant access to documents concerning the notification and pre notification procedure in relation to the acquisition of Unipetrol by Polski Koncern Naftowy Orlen SA (COMP/M.3543) and, second, Commission Decision D (2007) 1360 of 13 February 2007 confirming that refusal.

Operative part

Operative part

The Court:

1. Declares that the head of claim seeking annulment of the reply of the European Commission of 2 August 2006 and that requesting the Court to order the Commission to provide the applicant with the documents requested are inadmissible;

2. Annuls Commission Decision D (2007) 1360 of 13 February 2007 refusing access to documents in Case COMP/M.3543 concerning the merger between Polski Koncern Naftowy Orlen SA and Unipetrol, exchanged between the Commission and the notifying parties and between the Commission and third parties, and refusing access to the internal documents and legal advice drawn up in that case;

3. Orders the Commission to pay the costs;

4. Orders the Kingdom of Sweden, the Republic of Finland, the Kingdom of Denmark and Polski Koncern Naftowy Orlen to bear their own respective costs.
Keywords

Subject of the case

Operative part



Keywords

European Union law – Principles – Right to effective judicial protection – Applicability to measures adopted by agencies established on the basis of secondary law producing legal effects vis-à-vis third parties (Art. 230 EC) (see paras 57-58)

2. Actions for annulment – Actionable measures – Measures producing binding legal effects – Decisions taken by the European Agency for Reconstruction in the context of procedures for awarding public contracts – Included (Art. 230, first para., EC) (see paras 59-61)

3. Actions for annulment – Action against a decision confirming an earlier measure not challenged within the time-limits – Inadmissibility – Meaning of confirmatory decision – Decision adopted following an application raising new and substantial facts – Not included (Art. 263 TFEU) (see paras 89-93)

4. Procedure – Time-limit for instituting proceedings – Claim barred by lapse of time – Excusable error – Concept – Procedures for amicable settlement provided for in the call for tenders – Tenderer using such a procedure – Included (see paras 99, 103)

5. European Union public contracts – Conclusion of a contract following a call for tenders – Discretion of the institutions – Judicial review – Limits (see para. 115)

6. European Union budget – Financial regulation – Provisions applicable to procedures for awarding public contracts – Scope – Public contracts awarded by bodies created by the Communities, having legal personality and receiving subsidies from the EU budget – Included (Council Regulation No 2988/95, Art. 167(1), and No 2666/2000, Art. 7(1); Commission Regulation No 2343/2002, Art. 74) (see paras 153-157)

7. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision in a procedure for the award of a public service contract not to accept a tender (Art. 253 EC) (see paras 170-172, 177)

Subject of the case

Re:

First, application for annulment of the decision of the European Agency for Reconstruction rejecting the tender made by the applicants in response to invitation to tender EuropeAid/124192/D/SUP/YU concerning the supply of equipment for medical waste management (OJ 2006 S 233 248826) and awarding the contract to another tenderer, and, second, application for damages.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders CMB Maschinenbau & Handels GmbH and J. Christof GmbH to bear their own costs and those incurred by the European Commission.
Keywords

Summary



Keywords

Competition – Administrative procedure – Commission decision finding an infringement – Evidence which has to be gathered

(Art. 81(1) EC)

Summary

As regards proof of an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. It is accordingly necessary for the Commission to produce precise and consistent evidence to support the firm conviction that the infringement took place.

Any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point.

Furthermore, it is normal for the activities entailed by anti-competitive practices and agreements to take place clandestinely, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.

Even if the evidence accepted by the Commission may have a certain probative value, it is not sufficient to justify the finding that there was an infringement by the undertaking concerned, having regard to the contradictions in the Commission’s decision in relation inter alia to the meetings organised in connection with the cartel and the doubt which must operate to the advantage of the undertaking concerned; therefore, the Commission’s decision must be annulled.

(see paras 48-49, 66, 68)
Keywords



Keywords

Agriculture – Common organisation of the markets – Poultrymeat – Discrimination between producers or consumers – Prohibition – Scope – Discretion of EU institutions with regard to the Common Agricultural Policy – Judicial review – Scope (Art. 34(2), second para., EC; Council Regulation No 2777/75, Art. 14) (see paras 53-57, 68-69)

2. Agriculture – Common organisation of the markets – Poultrymeat – Market support measures in the egg sector – Commission decision declining to adopt exceptional support measures for the poultrymeat market – Decision making a distinction between economic losses caused by the destruction of one-day-old chicks and those of hatching eggs already incubated – Principle of non-discrimination – Infringement (Art. 34(2), second para., EC; Council Regulation No 2777/75, Art. 14; Commission Regulation No 2102/2004) (see paras 87-89, 98-99)
Judgment of the Court of First Instance (Eighth Chamber) of 12 March 2008 – Suez v OHIM (Delivering the essentials of life)

(Case T-128/07)

Community trade mark – Application for Community word mark Delivering the essentials of life – Absolute ground for refusal – Lack of distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94

Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 27-29)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 2 February 2007 (Case R 811/2006-1) concerning an application for registration of the mark Delivering the essentials of life as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: Suez Community trade mark sought: Word mark Delivering the essentials of life for goods and services in Classes 1, 9, 11, 16 and 35 to 42 – Application No 4102497 Decision of the examiner: Registration refused Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the action;
Judgment of the Court of First Instance (First Chamber) of 12 November 2008 – EOS v OHIM (PrimeCast)

(Case T-373/07)

Community trade mark – Application for Community word mark PrimeCast – Absolute ground for refusal – Descriptive character – Lack of distinctive character – Article 7(1)(b) and (c) of Regulation (EC) No 40/94

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 (Council Regulation No 40/94, Art. 7(1)(b) and (c)) (see paras 24-29, 36)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 20 July 2007 (Case R 333/2005-4) concerning an application for registration of the word mark PrimeCast as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: EOS GmbH Electro Optical Systems Community trade mark sought: Word mark PrimeCast for goods and services in Classes 1, 19, 40 and 42 – Application No 2854677 Decision of the examiner: Partial refusal of registration Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the application;
Judgment of the Court of First Instance (Second Chamber) of 20 January 2009 – Pioneer Hi-Bred International v OHIM (OPTIMUM)

(Case T-424/07)

Community trade mark – Application for the Community word mark OPTIMUM – Absolute ground for refusal – Lack of distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94 – Obligation to state reasons – Examination of the facts of OHIM’s own motion – Articles 73 and 74(1) of Regulation No 40/94

1. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 23-26, 28, 34)

2. Community trade mark – Procedural provisions – Examination of the facts of the Office’s own motion – Scope (Council Regulation No 40/94, Art. 74) (see paras 42-49)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 11 September 2007 (Case R 288/2007-2), concerning an application for registration of the word sign OPTIMUM as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: Pioneer Hi-Bred International, Inc. Community trade mark sought: Word mark OPTIMUM for goods in Class 1 – Application No 4893053 Decision of the examiner: Registration refused Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the action;
Judgment of the Court of First Instance (Second Chamber) of 17 December 2008 – Somm v OHIM (Shelter for shade)

(Case T-351/07)

Community trade mark – Application for Community tri-dimensional mark – Shelter for shade – Absolute grounds for refusal – Lack of distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94 – Lack of distinctive character acquired by use – Article 7(3) of Regulation No 40/94

Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 26, 30)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 28 June 2007 (Case R 1653/2006‑1) concerning an application for registration of a tri-dimensional sign representing a shelter for shade as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: Somm Srl Community trade mark sought: Three-dimensional trade mark described as follows: (‘Three-dimensional whole constituted by a large number of tubular posts of metal, placed at a distance from and aligned with each other, tapering and substantially curved at the bend, each having a base line, fixed to the ground, essentially vertical and a line with open extremities slightly inclined towards the top, a large number of tubular parts of metal, placed at a distance from and parallel with each other, fixed on inclined lines of those posts, and a cover to provide shade fixed on said tubular parts, the whole forming a shaded shelter’); for goods in Classes 6 and 19 – Application No 4837746 Decision of the examiner: Registration refused Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the action;
JUDGMENT OF THE COURT OF FIRST INSTANCE (Appeal Chamber)

20 October 2008

Case T-278/07 P

Luigi Marcuccio

v

Commission of the European Communities

(Appeal – Civil service – Officials – Social security – Industrial accident – Decision to close the procedure for the application of Article 73 of the Staff Regulations – Lack of an act causing adverse effect – Appeal unfounded)

Appeal: against the order of the European Civil Service Tribunal (First Chamber) of 11 May 2007 in Case F‑2/06 Marcuccio v Commission ECR-SC I-A-0000, for the annulment of that order.

Held: The appeal is dismissed. Mr Luigi Marcuccio is to bear his own costs and to pay the Commission’s costs before this Court.

Summary

1. Appeal – Pleas in law – Mistaken assessment of the facts – Inadmissibility – Rejection – Legal characterisation of the facts

(Art. 225a EC)

2. Procedure – Decision taken by reasoned order – Use of measures of organisation of procedure – Measures not precluding the adoption of such an order

(Rules of Procedure of the Court of First Instance, Arts 64 and 111; Council Decision 2004/752, Art. 3(4))

1. An appeal may be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Civil Service Tribunal has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. However, when the Civil Service Tribunal has established or assessed the facts, the Court of First Instance has jurisdiction under Article 225A EC to review the legal characterisation of those facts and the inferences in law which the Civil Service Tribunal has drawn from them.

(see para. 20)

See: C‑270/99 P Z v Parliament [2001] ECR I‑9197, para. 37 and the case-law cited therein

2. The use of the measures of organisation of procedure envisaged in Article 64 of the Rules of Procedure of the Court of First Instance, such as an attempt to reach an amicable settlement of the dispute, is not, in itself, capable of precluding a reasoned order from being adopted under Article 111 of the same rules, provided that the conditions laid down in that provision are satisfied.

(see paras 41-42)

See: C‑547/03 P AIT v Commission [2006] ECR I‑845, para. 30