ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Single Judge) of 17 December 2015 —

Bice International v OHIM — Bice (bice)

(Case T‑624/14)

‛Community trade mark — Invalidity proceedings — Community word mark bice — Earlier national figurative mark 1926 BiCE RISTORANTE — No genuine use of the earlier mark — Article 57(2) and (3) of Regulation No 207/2009’

1. Community trade mark — Appeals procedure — Action before the EU judicature — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — General reference to other documents — Inadmissibility (Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court (1991), Arts 44(1)(c), 130(1), and 132(1)) (see paras 19, 20)

2. Community trade mark — Procedural provisions — Statement of reasons for decisions — Article 75, first sentence, of Regulation No 207/2009 — Scope identical to that of Article 296 TEU (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see para. 26)

3. Community trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Genuine use — Concept — Interpretation having regard to the rationale of Article 57(2) and (3) of Regulation No 207/2009 (Council Regulation No 207/2009, Art. 57(2) and (3); Commission Regulation No 2868/95, Art. 1, Rules 22(3), and 40(6)) (see paras 34, 35)

4. Community trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Genuine use — Concept — Criteria for assessment (Council Regulation No 207/2009, Art. 57(2) and (3)) (see paras 36-40, 66, 67, 77, 82)

5. Community trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Probative value of the evidence — Criteria for assessment (Council Regulation No 207/2009, Arts 57(2), (3), and 78(1)(f)) (see paras 55, 59)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 23 May 2014 (Case R 1249/2013-1), relating to invalidity proceedings between Bice International Ltd and Bice AG.

Operative part

The Court:

1. Dismisses the action;
In the case of an application for the annulment of Council acts entering the name of the applicant on a list of persons covered by restrictive measures taken having regard to the situation in Ukraine, the fact that those acts are no longer in force at the time judgment is delivered, given that they were amended, in so far as they concern the applicant, cannot be equated with annulment by the Court of acts adopted initially, in so far as that amendment does not amount to recognition of the illegality of the acts in question. The applicant therefore retains an interest in bringing proceedings arising from the fact that recognition of the illegality of the contested acts may form the basis of a subsequent action for compensation for damage suffered as a result of those acts during the period of their application.

In an annulment action, the interest of the applicant in bringing proceedings must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it.

Although the Council has a broad discretion as regards the general criteria to be taken into consideration for the purpose of adopting restrictive measures, the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires that, as part of the review of the lawfulness of the grounds which form the basis of the decision to include or to maintain a person’s name on the list of persons subject to restrictive measures, the Courts of the European Union must ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated by sufficiently specific and concrete evidence.

In that regard, in order to enter the name of a person on the list of persons subject to restrictive measures, on the ground that he had been identified as responsible for the misappropriation of State funds, the Council must have a sufficiently solid factual basis, namely information concerning the facts or conduct specifically alleged against that person.

Furthermore, it is for the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded.

(see paras 38, 49, 51)
5.

Community trade mark — Definition and acquisition of the Community 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 (Council Regulation No 207/2009, Arts 7(1), and 75) (see paras 33, 34)
The European Investment Bank, in order to carry out its public interest responsibilities, therefore has discretion to organise its departments and to fix unilaterally the remuneration of its staff, notwithstanding the legal instruments of a contractual nature on which that employment relationship is based.

The European Investment Bank’s relations with its contract staff are, to a large extent, determined by the Staff Regulations, by which staff agree to be bound when they countersign the letter of appointment. More particularly, it is clear from the first and second paragraphs of Article 20 of the Staff Regulations and from Annexes I and II thereto that basic salaries and supplementary allowances are fixed by regulation.

Where contracts are concluded with a European Union body entrusted with public interest responsibilities and authorised, like the European Investment Bank, to lay down, by regulation, provisions applicable to its staff, the consent of the parties to such a contract is necessarily circumscribed by all manner of obligations deriving from those particular responsibilities and incumbent upon both the management bodies of that body and its staff.

As regards the nature of the employment relationship, according to Article 13 of the Staff Regulations of the European Investment Bank, relations between the Bank and the members of its staff are, in principle, governed by individual contracts in conjunction with those Staff Regulations.

The principle of proportionality requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.

With regard to judicial review of compliance with those conditions, the Union legislature has, in the exercise of the powers conferred on it, a broad discretion in areas in which its action involves political, economic and social choices and in which it is called upon to undertake complex assessments and evaluations. Thus the criterion to be applied is not whether a measure adopted in such an area was the only or the best possible measure, since its legality can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institutions are seeking to pursue.

Those considerations also apply by analogy to review of the proportionality of decisions taken by the European Investment Bank in the reform of its system of remuneration and salary progression. That reform involves political, economic and social choices for the Bank, in which it is called upon to undertake complex assessments, so that it has a broad discretion which must be taken into account when assessing the proportionality of the measures in question.

(see paras 116-118)

Judgments of 8 June 2010 in Vodafone and Others, C‑58/08, ECR, EU:C:2010:321, para. 52 and 17 October 2013 in Schaible, C‑101/12, ECR, EU:C:2013:661, para. 29 and the case-law cited therein
1.

Rules that there is no need to adjudicate on the action in so far as it seeks the annulment of Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP, Council Decision 2010/644/CFSP of 25 October 2010 amending Decision 2010/413, Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007, and Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010, as well as Council Implementing Regulations (EU) No 350/2012 of 23 April 2012, No 709/2012 of 2 August 2012, No 945/2012 of 15 October 2012, No 1264/2012 of 21 December 2012, No 522/2013 of 6 June 2013, No 1203/2013 of 26 November 2013, and No 397/2014 of 16 April 2014 implementing Regulation (EU) No 267/2012;
According to the first sentence of Rule 19(2) of Regulation No 2868/95, the opposing party must provide ‘proof of the existence, validity and scope of protection of his earlier mark’. The second sentence of Rule 19(2) of Regulation No 2868/95 indicates the evidence which the opposing party must provide ‘in particular’. According to the wording of the first part of Rule 19(2)(a)(ii) of Regulation No 2868/95, an opposing party is required to provide the registration certificate ‘et’ (and), as the case may be, the latest renewal certificate for an earlier registered trade mark which is not a Community trade mark. According to the last part of Rule 19(2)(a)(ii) of Regulation No 2868/95, it is also possible for the opposing party to produce ‘equivalent documents emanating from the administration by which the trade mark was registered’.

It is necessary to interpret that provision as meaning that the possibility of providing an equivalent document does not relate only to the renewal certificate, but to both the registration certificate and the renewal certificate. The requirement to produce the registration certificate is not an end in itself, but is intended to ensure that the Office for Harmonisation in the Internal Market (Trade Marks and Designs) has available to it reliable proof of the existence of the mark on which the opposition is based. It is therefore possible to provide an ‘equivalent’ document which serves just as well as a replacement for the registration certificate as it does for the renewal certificate.

It is also possible that the second item mentioned in Rule 19(2)(a)(ii) of Regulation No 2868/95 (the renewal certificate) may at the same time constitute a document ‘equivalent’ to the first item (the registration certificate). Where the renewal certificate contains all the information necessary to assess the existence, validity and scope of protection of the mark on which the opposition is based, the submission of that document constitutes ‘proof of the existence, validity and scope of protection of his earlier mark’ as referred to in the first sentence of Rule 19(2) of Regulation No 2868/95. It should be borne in mind that, according to a teleological interpretation of Rule 19(2) of Regulation No 2868/95, the content of the document is what counts, together with the fact that it emanates from the competent authority.

It follows from the foregoing that the submission of a renewal certificate is sufficient to establish the existence, validity and scope of protection of the mark on which the opposition is based, if it contains all the information necessary for that purpose.

(see paras 57, 58, 60, 62, 64, 65)
Judgment of the General Court (Sixth Chamber) of 3 March 2016 —

Spain v Commission

(Case T‑675/14)

‛EAGGF — Guarantee Section — EAGF and EAFRD — Expenditure excluded from financing — Expenditure incurred by the Kingdom of Spain — Flat rate financial corrections — Specific financial corrections — Extension of the financial correction to a period after the communication provided for in Article 11(1) of Regulation (EC) No 885/2006’

1. Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — General reference to documents annexed to the application — Inadmissibility (Rules of Procedure of the General Court (1991), Art. 44(1)(c)) (see paras 32-35)

2. Agriculture — EAGGF, EAGF and EAFRD 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 (Council Regulation No 1290/2005, Art. 31) (see paras 39, 40)

3. Agriculture — EAGGF, EAGF and EAFRD financing — Clearance of accounts — Disallowance of expenses arising from irregularities in applying EU rules — Assessment of losses suffered by the funds — Irregular expenses not capable of being determined with sufficient precision — Assessment based on flat-rate corrections — Lawfulness — No breach of principle of proportionality (Council Regulation No 1290/2005, Art. 31) (see paras 43-45, 48, 54)

4. EU law — Principles — Proportionality — Scope (Art. 5(4) TEU) (see para. 51)

5. Agriculture — EAGGF, EAGF and EAFRD financing — Clearance of accounts — Disallowance of expenses arising from irregularities in applying EU rules — Financial correction — Cumulation of analytical and flat-rate corrections — Lawfulness — Conditions (Council Regulation No 1290/2005, Art. 31(2)) (see paras 69, 70)

6. Agriculture — EAGGF, EAGF and EAFRD financing — Clearance of accounts — Period capable of being the subject-matter of a financial correction — Period subsequent to the date of the written communication of the results of the checks — Lawfulness — Conditions (Council Regulations No 1290/2005, Art. 31(4)(a), and No 885/2006, Art. 11(3)) (see paras 94-97)

7. EU law — Principles — Rights of defence — Scope (see para. 101)

Re:

APPLICATION for annulment of Commission Implementing Decision 2014/458/EU of 9 July 2014 excluding from EU financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), the European Agricultural Guarantee Fund (EAGF) and the European Agricultural Fund for Rural Development (EAFRD) (OJ 2005 L 205, p. 62) in so far as it concerns certain expenditure incurred by the Kingdom of Spain in the amount of EUR 2713208.07.

Operative part

The Court:

1. Dismisses the action;

2. Orders the Kingdom of Spain to bear its own costs and to pay the costs incurred by the European Commission;
Judgment of the General Court (Eighth Chamber) of 12 May 2016 —

Hamr - Sport v Commission

(Case T‑693/14)

‛State aid — Sports facilities provided by non-profit organisations — Operating or investment subsidies seeking to enable the construction, operation, maintenance, reconstruction or development of sports facilities which are non-profit — Decision declaring the aid to be compatible with the internal market — Article 107(3)(c) TFEU — Action for annulment — Individual concern — Concept of interested party — Admissibility — No effect on trading conditions to an extent contrary to the common interest — No doubts which justify initiating the formal investigation procedure’

1. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision finding State aid compatible with the internal market without opening the formal investigation procedure — Action by interested parties within the meaning of Article 108(2) TFEU — Action designed to safeguard the procedural rights of the persons concerned — Admissibility (Arts 108(2) TFEU and 263, fourth para., TFEU; Council Regulation No 659/1999, Arts 1(h), 4(3), and 6(1)) (see paras 29-45)

2. Judicial proceedings — Intervention — Objection of inadmissibility not raised by the defendant — Inadmissibility — Absolute bar to proceeding — To be considered of the Court’s own motion (Rules of Procedure of the General Court (1991), Art. 44(1)(c)) (see paras 47, 48)

3. Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid — Decision not to open the formal investigation procedure — Brief summary of reasons leading the Commission to conclude that there were no serious difficulties assessing compatibility of the aid concerned with the internal market — Sufficient statement of reasons (Arts 107(1) TFEU, 108(2) TFEU and 296 TFEU) (see paras 54, 67)

4. State aid — Examination by the Commission — Preliminary review and main review — Compatibility of aid with the internal market — Difficulties of assessment — Commission’s duty to initiate the main review procedure — Serious difficulties — Concept — Objective nature — Burden of proof (Art. 108(2) TFEU; Council Regulation No 659/1999, Art. 6(1)) (see paras 70-73, 82)

5. State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Discretion of the Commission — Complex evaluation of economic matters — Judicial review — Limits (Art. 107(3)(c) TFEU) (see para. 74)

Re:

APPLICATION based on Article 263 TFEU and seeking the annulment of Commission Decision C(2014) 3602 final of 11 June 2014 relating to State aid SA.33575 (2013/NN) — Czech Republic in favour of non-profit sports facilities granted by central public institutions.

Operative part

The Court:

1. Dismisses the action;

2. Orders Hamr - Sport a.s. to pay the costs, except those incurred by the Czech Republic;
Judgment of the General Court (Sixth Chamber) of 12 May 2016 —

Red Lemon v EUIPO — Lidl Stiftung (ABTRONIC)

(Case T‑643/14)

‛EU trade mark — Opposition proceedings — Application for the EU word mark ABTRONIC — Earlier EU word mark TRONIC — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009 — Minimal inherent distinctiveness of the earlier mark — Likelihood of confusion’

1. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Review of the lawfulness of decisions of the Boards of Appeal — Account taken by the General Court of matters of law and fact not previously raised before the departments of EUIPO — Not included (Council Regulation No 207/2009, Art. 65(2)) (see para. 15)

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 — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23, 24, 50, 51, 63)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 29)

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 ABTRONIC and TRONIC (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 49, 62-65)

5. EU trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — EUIPO’s previous decision-making practice — Principle of legality (see paras 66, 67)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 15 March 2014 (Case R 1899/2013-1), relating to opposition proceedings between Lidl Stiftung & Co. KG and Red Lemon Inc.

Operative part

The Court:

1. Dismisses the action;
Judicial proceedings—General Court seised under an arbitration clause—Capacity to be a defendant—Agreement concluded with the Commission in the context of a framework programme subsequently managed by the Research Executive Agency (REA)—No subrogation of the REA to the rights and obligations of the Commission—Action directed against the Commission—Admissibility

(Art. 272 TFEU; Council Regulation No 58/2003, Arts 4 and 21(1); Commission Decisions 2008/46, Art. 4(1), and 2013/778, Arts 1 and 7(1))

(see paras 43-45, 55, 57, 63, 64, 68, 72)
In order to determine whether a State measure constituted aid for the purposes of Article 107 TFEU, it is necessary to establish whether the recipient undertaking received an economic advantage which it would not have obtained under normal market conditions.

Thus, in order to determine whether action taken by public authorities in respect of the capital of an undertaking is in the nature of State aid, it is necessary to assess whether, in similar circumstances, a private investor of a size comparable to that of bodies managing the public sector might have been prompted to take the measure in question.

As regards the recovery of public debts, however, there is no need to examine whether the public bodies in question acted like public investors whose behaviour should be compared to the conduct of a private investor pursuing a structural policy, whether general or sectoral, guided by the longer-term prospects of profitability of the capital invested. Those bodies must in reality be compared to a private creditor seeking to obtain payment of sums owed to it by a debtor in financial difficulties.

In that context, it can be rational for an economic operator, having invested capital in a company to which he has also granted a guarantee, to adopt measures involving loss where they substantially reduce, if not eliminate, the risk of losing his capital and the enforcement of the guarantee. More specifically, it may be economically rational for a Member State to accept measures such as a transfer of impaired assets, in so far as they have a limited cost and involve reduced risk and that, without such measures, it would be highly likely that it would have to bear losses in an amount greater than that cost.

Moreover, the mere fact that a public undertaking has already made capital injections into a subsidiary that are classed as aid does not automatically mean that a further capital injection cannot be classed as an investment satisfying the market economy investor test. What is decisive in the assessment of the subsequent measure is whether the conduct of the State satisfies an economic rationality test.

Finally, the market economy investor test is not an exception that applies only if a Member State so requests. Where it is applicable, that test is among the factors the Commission is required to take into account for the purposes of establishing the existence of aid.

(see paras 54-57, 59, 60, 65, 66, 74)