ddrg/super_eurlex huggingface dataset:
JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

30 January 2008

Case T-85/04

Guido Strack

v

Commission of the European Communities

(Civil service – Officials – Staff reporting – Career development report – 2001/2002 appraisal procedure – Lawfulness of the staff reporting procedure)

Application: for annulment of the 2001/2002 appraisal procedure in so far as it concerns the applicant and of the decision which adopted his career development report for that procedure.

Held: The decision adopting the career development report of Mr Guido Strack for the 2001/2002 appraisal procedure is annulled. The Commission is ordered to pay the costs.

Summary

Officials – Reports procedure – Internal directive of an institution – Legal effects – Limits – Observance of the hierarchy of norms

(Staff Regulations, Art. 43)

There is nothing in principle to prevent the appointing authority from drawing up rules, by means of an internal decision of general effect, to govern the exercise of the discretion conferred on it by the Staff Regulations. However, the right to resort to such internal directives is subject to certain limits and, in particular, to the obligation to observe the principle of the hierarchy of norms.

An internal directive is a norm of a lower order than the Staff Regulations and the provisions adopted for their implementation. Consequently, the internal directives adopted by the Community institutions concerning the reports procedure cannot lawfully lay down rules which derogate from the provisions of the Staff Regulations or the General Provisions for Implementing Article 43 of the Staff Regulations, adopted by those same institutions.

Accordingly, since the General Implementing Provisions in force at the Commission provided, in certain situations involving an alteration of duties or a change of immediate superior, for an obligation to draw up partial appraisal reports and establish a weighting of the marks awarded by them, that institution could not provide, in an internal directive relating to the appraisal of staff during a transitional period corresponding to a change of system of reports, for the drawing-up of the report by the immediate superior in post at the end of the appraisal period, involving a simple consultation of the previous immediate superiors .

(see paras 38-42)

See: 190/82 Blomefield v Commission [1983] ECR 3981, para. 1; T‑17/95 Alexopoulou v Commission [1995] ECR-SC I‑A‑227 and II‑683, para. 23; T‑236/97 Ouzounoff Popoff v Commission [1998] ECR-SC I‑A‑311 and II‑905, para. 44; T‑198/04 Merladet v Commission [2005] ECR-SC I‑A‑403 and II‑1833, paras 38, 40, 41 and 43
Judgment of the Court of First Instance (Fourth Chamber) of 10 September 2008 – Italy v Commission

(Case T-381/04)

EAGGF – Guarantee Section – Expenditure excluded from Community financing – Animal subsidies and rural development – Inadequate national management and control system

1. 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. 253 EC) (see para. 60)

2. Procedure – Application initiating proceedings – Formal requirements – Brief summary of the pleas in law on which the application is based (Rules of Procedure of the Court of First Instance, Art. 44(1)(c)) (see paras 67-68, 73-74)

3. Agriculture – Common agricultural policy – Integrated administration and control system for certain aid schemes – Regulation No 2988/95 (Council Regulation No 2988/95, Arts 1, 2 and 7) (see paras 80-84)

4. Agriculture – EAGGF – Clearance of accounts – Disallowance of expenditure arising from irregularities in the application of the Community rules – Challenge by the Member State concerned – Burden of proof – Allocation between the Commission and the Member State (see paras 95-96, 127, 136-137, 142)

Re:

APPLICATION for partial annulment of Commission Decision 2004/561/EC of 16 July 2004 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 2004 L 250, p. 21), in so far as it excludes certain expenditure incurred by the Italian Republic in the sectors of animal subsidies and rural development.

Operative part

The Court:

1. Dismisses the action;
Judgment of the Court of First Instance (Seventh Chamber) of 3 April 2008 – KONGRA‑GEL and Others v Council

(Case T-253/04)

Common foreign and security policy – Restrictive measures directed against certain persons and entities with a view to combating terrorism – Freezing of funds – Action for annulment – Statement of reasons

1. Actions for annulment – Jurisdiction of the Community judicature – Claim seeking that directions be issued to an institution – Inadmissibility (Art. 230 EC) (see para. 48)

2. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Decision to freeze funds directed against certain persons and entities suspected of terrorist activities (Arts 230, fourth para., EC and 249 EC; Council Regulation No 2580/2001; Council Decision 2004/306) (see paras 76-78)

3. Actions for annulment – Interest in bringing proceedings – Action brought against an implemented or interrupted measure (Art. 233 EC) (see paras 82-85)

4. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to freeze funds directed against certain persons and entities suspected of terrorist activities – Minimum requirements (Art. 253 EC; Council Common Position 2001/931, Art. 1(4) and (6); Council Regulation No 2580/2001) (see paras 95-98)

5. Acts of the institutions – Statement of reasons – Obligation – Correction of an error of reasoning during the proceedings before the Court – Not permissible (Art. 253 EC) (see paras 99-101)

Re:

ACTION for, first, the partial annulment of Council Decision 2004/306/EC of 2 April 2004 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2003/902/EC (OJ 2004 L 99, p. 28), and of Regulation No 2580/2001 (OJ 2001 L 344, p. 70), and, secondly, damages.

Operative part

The Court:

1. Annuls Council Decision 2004/306/EC of 2 April 2004 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2003/902/EC in so far as it concerns KONGRA-GEL;

2. Orders the Council to bear, in addition to its own costs, all the costs incurred by the applicants;
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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 46-47, 51

)

Subject of the case

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 17 December 2004 (Case R 226/2003‑2) concerning opposition proceedings between Sergio Rossi SpA and Marcorossi Srl.

Information relating to the case

>lt>3

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders the applicant to pay the costs incurred by the intervener and to bear its own costs;

3. Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to bear its own costs.
Keywords

Summary



Keywords

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))

Summary

The three-dimensional mark consisting of the shape of a sausage, for which registration is sought in respect of gut for making sausages falling within Class 18 of the Nice Agreement, is devoid of any distinctive character, in relation to the goods concerned, within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark.

The shape applied for looks like a variant of the basic shapes for charcuterie, so that, even if there are no identical shapes, it does not enable those in the charcuterie business and end consumers in general to distinguish the gut marketed by the applicant or charcuterie packed by him from those of other undertakings without conducting an analytical or comparative examination and without paying particular attention.

(see para. 40)
Keywords

Subject of the case

Operative part



Keywords

Community trade mark – Proceedings before the OHIM authorities – Transmission of communications to the Office (Commission Regulation No 2868/95, Art. 1, rule 80(2)) (see paras 59-64)

2. Community trade mark – Observations of third parties and opposition – Examination of the opposition – Obligation of the opponent to clearly identify the earlier mark (Council Regulation No 40/94, Art. 42(1); Commission Regulation No 2868/95, Art. 1, rule 18(1)) (see para., 102)

Subject of the case

Re:

THIRTEEN ACTIONS brought against the decisions of the First Board of Appeal of OHIM of 19 April 2005 (R 727/2004-1, R 729/2004-1, R 723/2004-1, R 730/2004-1 and R 724/2004-1), of 27 April 2005 (R 722/2004-1) and of 3 May 2005 (R 788/2004-1, R 789/2004-1, R 790/2004-1, R 791/2004-1, R 792/2004-1, R 793/2004-1 and R 794/2004-1), relating to opposition proceedings between Atlas Copco AB and The Black & Decker Corporation.

Information relating to the cases

>lt>4

Operative part

Operative part

The Court:

1. Dismisses the actions;

2. Orders the applicant to pay the costs.
Keywords

Summary



Keywords

Community trade mark – Observations of third parties and opposition – Examination of the opposition

(Council Regulation No 40/94, Arts 42(3) and 74(1); Commission Regulation No 2868/95, Art. 1, Rule 20(3))

Summary

Where, in opposition proceedings against the registration of a Community trade mark, the grounds of opposition are limited to the mere reference ‘Likelihood of confusion’, and the explanation of those grounds, lodged in a language other than that of the opposition, cannot be taken into account by the Opposition Division, the question whether the latter may legitimately examine the substance of the opposition must be assessed in the light of Article 74(1) of Regulation No 40/94 on the Community trade mark, which provides that, in proceedings relating to relative grounds for refusal of registration, OHIM is restricted in its examination to the facts, evidence and arguments provided by the parties and the relief sought, and in the light of Rule 20(3) of Regulation No 2868/95 implementing Regulation No 40/94, which specifies that, if the applicant files no observations, OHIM may give a ruling on the opposition on the basis of the evidence before it.

In that respect, the criteria for applying a relative ground for refusal or any other provision relied on in support of arguments put forward by the parties are naturally part of the matters of law submitted for examination by OHIM.

In those circumstances, the Opposition Division does not exceed its powers by carrying out an examination of the likelihood of confusion where such examination can be carried out solely on the basis of a comparison of the signs in question and the goods concerned, all the information relating to those two criteria is contained in the trade mark application, the registration of the earlier mark and the part of the opposition document written in the language of the opposition, and there is no need to have recourse to the explanation of grounds written in another language or to any other sources of information

(see paras 58-59, 66, 68)
Keywords

Subject of the case

Operative part



Keywords

Community trade mark – Appeals procedure – Appeals before the Community judicature – Jurisdiction of the Court of First Instance (Council Regulation No 40/94, Art. 63(3)) (see para. 13)

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 (Council Regulation No 40/94, Art. 8(1)(b)) (see para. 27)

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 (Council Regulation No 40/94, Art. 8(1)(b)) (see para. 27)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 15 December 2004 (Case R 240/2004-1) relating to opposition proceedings between Waterford Wedgwood and Assembled Investments (Proprietary) Ltd.

Information relating to the case

>lt>3

Operative part

Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of OHIM of 15 December 2004 (Case R 240/2004-1);

2. Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Waterford Wedgwood plc to pay, in addition to their own costs, the costs incurred by the applicant.
Keywords

Subject of the case

Operative part



Keywords

Procedure

–

Referral to the Court of First Instance under an arbitration clause (Art. 238 EC; European Parliament and Council Decision No 1110/94; Council Decision 90/221) (see paras 69-78, 94-104, 125-133

)

Subject of the case

Re:

APPLICATION, pursuant to an arbitration clause within the meaning of Article 238 EC, for an order against Impetus Simvouloi Mikhanikoi – Kainotomia kai Tekhnologia EPE to repay part of the sums paid to it by the European Community under the Invite (Inland Navigation Telematics) contract (reference COP 493) and under the Ausias (ATT in Urban Sites with Integration and Standardisation) contract (reference TR 1006), concluded in the framework of Decision No 1110/94/EC of the European Parliament and of the Council of 26 April 1994 concerning the fourth framework programme of the European Community activities in the field of research and technological development and demonstration (1994 to 1998) (OJ 1994 L 126, p. 1), and part of the sums paid under the Artis (Advanced Road Transport Informatics in Spain) contract (reference V 2043), concluded in the framework of Council Decision 90/221/Euratom, EEC of 23 April 1990 concerning the framework programme of Community activities in the field of research and technological development (1990 to 1994) (OJ 1990 L 117, p. 28).

Operative part

Operative part:

The Court:

1. Dismisses the Commission’s claim for repayment of the sum of EUR 136 037.30 under the Invite (Inland Navigation Telematics) contract (reference COP 493);

2. Orders Impetus Simvouloi Mikhanikoi – Kainotomia kai Tekhnologia EPE, under the Ausias (ATT in Urban Sites with Integration and Standardisation) contract (reference TR 1006), to pay to the Commission the sum of EUR 14 678.41 by way of principal sum, together with interest for late payment, at the statutory annual rate applicable in Spain, from 15 November 2002 until payment in full of the debt;

3. Orders Impetus Simvouloi Mikhanikoi – Kainotomia kai Tekhnologia EPE, under the Artis (Advanced Road Transport Informatics in Spain) contract (reference V 2043), to pay to the Commission the sum of EUR 9 230.77 by way of principal sum, together with interest for late payment, at the statutory annual rate applicable in Spain, from 29 January 2003 until payment in full of the debt;

4. Orders each party to bear its own costs.
Keywords

Subject of the case

Operative part



Keywords

European Communities

–

Institutions

–

Right of public access to documents

–

Regulation No 1049/2001 (European Parliament and Council Regulation No 1049/2001, Arts 3 and 4(3)) (see paras 33-35, 43, 63, 66-70, 73

)

Subject of the case

Re:

APPLICATION for annulment of the decision of 17 January 2005 of the Secretary-General of the Commission refusing access to certain documents and sound recordings in connection with the 30th adaptation to technical progress of Council Directive 67/548/EEC of 27 June 1967 on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967(I), p. 234).

Operative part

Operative part

The Court:

1. Annuls the decision of 17 January 2005 of the Secretary-General of the Commission refusing access to certain documents and sound recordings in connection with the 30th adaptation to technical progress of Council Directive 67/548/EEC of 27 June 1967 on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances;

2. Orders the Commission to pay the costs.
Keywords

Subject of the case

Operative part



Keywords

Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link (Art. 288, second para., EC) (see paras 54, 96-97)

2. Non-contractual liability – Conditions – Sufficiently serious breach of a rule conferring rights on individuals (Art. 288, second para., EC) (see para 76)

3. State aid – General aid scheme approved by the Commission – Individual aid falling within the temporal scope of that scheme – Determination – Date of the legally binding measure requiring the competent national authority to grant the aid (Art. 87 EC) (see paras 80-82)

Subject of the case

Re:

ACTION for damages for the loss allegedly suffered by the applicants as a result of the adoption by the Commission of the Decision of 12 July 2000 declaring compatible with the common market an aid scheme for investment in the less-favoured regions of Italy (State aid No 715/1999 – Italy (SG 2000 D/105754)) and as a result of the Commission’s conduct during the procedure which preceded the adoption of that decision.

Operative part

Operative part

The Court:

1. Joins Case T-362/05 and T-363/05 for the purposes of the judgment;

2. Dismisses the actions;

3. Orders Nuova Agricast Srl to bear its own costs and to pay those incurred by the Commission in Case T-362/05;

4. Orders Cofra Srl to bear its own costs and to pay those incurred by the Commission in Case T-363/05.
Keywords



Keywords

Procedure

–

Interpretation of a judgment

–

Conditions for admissibility of the application (Arts 231, second para., EC and 233, first para., EC; Rules of Procedure of the Court of First Instance, Art. 129) (see paras 3-7

)
JUDGMENT OF THE COURT OF FIRST INSTANCE

(Third Chamber)

31 January 2007

Case T-236/05

Willem Aldershoff

v

Commission of the European Communities

(Career development report – 2003 appraisal exercise – Manifest error of assessment – Failure to state reasons – Right to be heard)

Application: for annulment of the applicant’s career development report for the 2003 appraisal exercise.

Held: The career development report of the applicant, Mr Willem Aldershoff, for the 2003 appraisal exercise is annulled. The Commission is ordered to bear its own costs and to pay those of the applicant.

Summary

1. Officials – Reports procedure – Career development report – Obligation to state reasons

(Staff Regulations, Art. 43)

2. Officials – Reports procedure – Career development report

(Staff Regulations, Art. 43)

1. Where, in the reports procedure established by the Commission, the Joint Evaluation Committee identifies special circumstances capable of calling into question the validity or merits of the initial assessment by the assessor or the countersigning officer, the appeal assessor must issue a reasoned opinion containing arguments giving adequate consideration to those special circumstances, and he is not released from that obligation merely by making an implied reference to the initial statement of reasons in the career development report. Such a possibility would have the effect of rendering the entire procedure before the Joint Evaluation Committee redundant.

(see paras 59, 61)

2. In view of the fact that assessors have a wide discretion when judging the work of persons whom they must assess, it is for the official applying for the annulment of his career development report to prove that there has been a manifest error of assessment.

Such an error exists where the performance of a head of unit has been assessed with reference to targets assigned on the basis of a staff increase that was not ultimately confirmed, where those targets were not revised downwards once it became clear that the recruitments announced would not take place.

(see paras 83, 90, 92)

See: T-43/04 Fardoom and Reinard v Commission [2005] ECR-SC I‑A‑329 and II‑1465, para. 79
Judgment of the Court of First Instance (Fourth Chamber) of 23 May 2007 – Henkel v OHIM – SERCA (COR)

(Case T-342/05)

Community trade mark – Opposition proceedings – Application for Community word mark COR – Earlier national figurative mark including the word element ‘dor’ in gothic script – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94

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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 52-54)

Re:

ACTION for annulment brought against the decision of the First Board of Appeal of OHIM of 14 July 2005 (Case R 556/2003-1) relating to opposition proceedings between Henkel KGaA and Serra Y Roca, SA (SERCA).

Information relating to the case

Applicant for the Community trade mark: Serra Y Roca, SA (SERCA) Community trade mark sought: Word mark COR for goods in Class 3 – Application No 1284470 Proprietor of the mark or sign cited in the opposition proceedings: Henkel KGaA Mark or sign cited in opposition: National figurative mark ‘dor’ for goods in Classes 3, 5 and 21 Decision of the Opposition Division: Opposition dismissed in respect of goods in Class 3 Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

Dismisses the action;
Judgment of the Court of First Instance (First Chamber) of 8 November 2007 – MPDV Mikrolab v OHIM (manufacturing score card)

(Case T-459/05)

Community trade mark – Community trade mark application in respect of manufacturing score card word mark – Absolute grounds for refusal – Descriptiveness – 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 capable of serving to designate the characteristics of a product (Council Regulation No 40/94, Art. 7(1)(c)) (see paras 25-26)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 19 October 2005 (Case R 1059/2004-2) concerning an application for registration of the manufacturing score card word mark as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark: MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor Community trade mark sought: Word mark manufacturing score card for goods and services in Classes 9, 35 and 42 – Application No 3334596 Decision of the Examiner: Refusal of registration Decision of the Board of Appeal: Appeal dismissed





Operative part

The Court:

1. Dismisses the action;