ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Sixth Chamber) of 1 December 2021 –

Union syndicale Solidaires des SDIS de France et DOM/TOM v Commission

(Case T‑152/21)

(Non-contractual liability – Filing of a complaint with the Commission concerning the application of EU law – Time limit for reply – Right to good administration – Mandatory due diligence – Reasonable period – No sufficiently serious breach of a rule of law conferring rights on individuals)

Non-contractual liability – Conditions – Unlawfulness – Sufficiently serious breach of EU law – Requirement that the institutions manifestly and seriously disregard the limits of their discretion – Inaction by the Commission following a complaint filed by the applicant – Right to sound administration – No infringement of the obligation of due diligence – No breach of the principle that an action must be brought within a reasonable period – No sufficiently serious breach of a rule of law conferring rights on individuals – EU not liable

(Art. 340, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 41(1))

(see paras 16-20, 23, 25-29, 35, 37, 41-43)

Re:

Application under Article 268 TFEU seeking compensation for the harm suffered by the applicant as a result of the Commission’s negligent failure to deal with her complaint, registered on 27 June 2019 under reference CHAP(2019)01840, for alleged breach of European Union law by the French Republic.

Operative part

The Court:

1. Dismisses the action;
EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Exception – Distinctive character acquired through use – Criteria for assessment

(Council Regulation No 207/2009, Art. 7(1)(b) and (c) and (3))

(see paras 29, 31, 39, 40)
2.

EU trade mark – Definition and acquisition of the EU trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Assessment of the likelihood of confusion – Determination of the relevant public – Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 22)
EU trade mark – Surrender, revocation and invalidity – Examination of the application – Proof of use of the earlier mark – Genuine use – Definition – Criteria for assessment – Requirement of solid and objective evidence

(Council Regulation No 207/2009, Arts 15(1) and 57(2) and (3); Commission Regulation 2018/625)

(see paras 55-58, 63, 64)
EU trade mark – Surrender, revocation and invalidity – Causes of revocation – No genuine use of the trade mark – Proof of use of the earlier mark – Genuine use – Meaning – Criteria for assessment – Requirement of solid and objective evidence

(European Parliament and Council Regulation 2017/1001, Art. 47(2); Council Regulations No 40/94, Art. 76(1)(f), and No 207/2009, Art. 51(1)(a); Commission Regulation No 2868/95, Art. 1, Rules 22 and 40(5))

(see paras 21-25, 34-36, 41, 65)
2.

EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Trade mark made up of several components – Possible for the competent authority to examine each of the components making up the trade mark – Need to take account of the overall perception of the combination by the relevant public (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see paras 35, 36)
2.

Officials – Psychological harassment – Burden of proof – Bringing of a request for assistance reflecting the alleged victim’s perception of the facts – Failure to satisfy the burden of proof (Staff Regulations of Officials, Art. 12a) (see para. 77)
92

The same goes for Case 113. In those proceedings, the Court also noted that the Council had not explained the reasons that had led it to accept the mere assertions of the PGO and the investigating judge regarding the inclusion of the applicant’s name on an international list of wanted persons, despite the documents showing that his name was not on the Interpol wanted list. According to the Court, the information available to the Council did not enable it to verify whether the prosecutor had complied with the condition regarding inclusion on such a list and, consequently, whether the investigating judge, when adopting his decision, had respected the applicant’s rights of defence and right to effective judicial protection. In that regard, the Court also observed that it followed from the judgment of 13 May 2020, which post-dated the adoption of the March 2020 acts, but not the adoption of the contested acts, first, that the mere fact that the prosecutor took a procedural decision in the form of a resolution to place a person on the Interpol wanted list was not sufficient, it being also a requirement that all necessary measures were taken to implement such a resolution, which had in no way been proven by the prosecutor and, secondly, that such an interpretation of Article 193‑6 of the Code of Criminal Procedure had already been made by the Appeals Chamber of the Ukrainian High Anti-Corruption Court in several court decisions taken between September 2019 and February 2020 (see, to that effect, judgment of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraphs 86 to 92) and should, therefore, have been particularly familiar to the prosecutor.
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Application for interim measures - Interim measures - Conditions for granting - Serious and irreparable damage

( EEC Treaty, Art . 186; Rules of Procedure, Art . 83(2 ) )
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Procedure ° Revision of an order terminating proceedings ° Criteria for the admissibility of the application ° New fact ° Fact of such a nature as to be a decisive factor ° No new fact ° Inadmissible

(EEC Statute of the Court of Justice, Arts 41 and 46)

Summary

Under the first paragraph of Article 41 of the EEC Statute of the Court of Justice, declared applicable to proceedings before the Court of First Instance by the first paragraph of Article 46 thereof, revision is not an appeal procedure but an exceptional review procedure enabling the authority attaching to a final judgment on the basis of the findings of fact relied upon by the Court to be called in question. Revision presupposes the discovery of elements of a factual nature which existed prior to the judgment and were unknown at that time to the court which delivered it as well as to the party applying for revision and which, had the court been able to take them into consideration, could have led it to decide the case differently.

Thus, an application for revision of an order by the Court of First Instance dismissing an action for annulment as inadmissible for being out of time is itself inadmissible, where the application for revision pleads a subsequent declaration by the Court of First Instance that the contested decision is non-existent and that, on the basis of this new fact, an action may be brought against it irrespective of any time-limit, in a situation where the Court on appeal has declared that the contested decision is not non-existent.
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Procedure ° Costs ° Taxation ° Recoverable costs ° Meaning ° Factors to be taken into account

(Rules of Procedure of the Court of First Instance, Arts 91(b) and 92(1))

Summary

In the absence of Community provisions on scales of fees, it is for the Community judicature, when taxing costs pursuant to Article 92(1) of the Rules of Procedure of the Court of First Instance, freely to consider the circumstances of the case, having regard to the subject-matter and nature of the dispute, its importance from the point of view of Community law and of the difficulties of the case and the extent of the work which the pre-litigation procedure may have involved for the agents or lawyers working on the case and, for that purpose, it does not have to take account of any national scales of lawyers' fees or any agreement concluded between the party concerned and his agents or advisers.

Since the Court, in determining the recoverable costs, takes account of all the circumstances of the case up to the time of its decision, it is unnecessary to make a separate order as to the costs incurred by the parties in relation to the proceedings for the taxation of costs.
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1. Officials - Actions - Prior complaint through official channels - Distinguished from a request under Article 90(1) of the Staff Regulations - Distinction to be made by the Court

(Staff Regulations, Arts 90(1) and 90(2) )

2. Officials - Actions - Prior complaint through official channels - Implied rejection of a request not challenged within the prescribed period - Subsequent express decision - Confirmatory measure - No action available

(Staff Regulations, Arts 90(1) and 91)

3. Officials - Actions - Act adversely affecting an official - Concept - Interim reply by the administration to a request from an official - Excluded

(Staff Regulations, Arts 90 and 91)

Summary

1. The fact that an official describes as a complaint a letter sent by him to the appointing authority is not decisive for the purposes of Articles 90 and 91 of the Staff Regulations since classification of a letter as a "request" or a "complaint" is a matter for appraisal by the Court alone and is not determined by the intention of the parties.

Where an examination of the circumstances of the case shows that the alleged complaint cannot be seen as contesting an act adversely affecting the person who submitted it, it must be treated as what it actually is, namely a request.

2. The express rejection of a request, after there has been an implied decision rejecting that request, must be regarded as a purely confirmatory measure which is not capable of entitling an official, who has not contested the implied rejection of his request within the prescribed period, to pursue the pre-litigation procedure by allowing him a further period within which to submit a complaint.

3. Only acts capable of directly affecting a given legal situation can be regarded as acts having an adverse effect.

The reply by which the administration informs the person concerned that his request is being considered has no legal effect and is not capable, in particular, of extending the time-limits provided for in Articles 90 and 91 of the Staff Regulations.
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Procedure ° Intervention ° Persons with an interest ° Case concerning the validity of a decision applying competition rules ° Undertaking which is a party to proceedings before the national court, the result of which is dependent on the result of proceedings before the Community judicature ° Striking out of the action before the national court ° Consequences dependent on the terms and effects of the striking out

(Statute of the Court of Justice of the EEC, Art. 37, second paragraph)

Summary

An undertaking which, although not a complainant in a procedure conducted by the Commission, is a party to proceedings pending before the national court, the result of which depends on the decision to be given by the Court of First Instance on conclusion of the proceedings to which an application to intervene relates, has a right to intervene, in accordance with Article 37 of the Statute of the Court, in proceedings before the Court of First Instance brought against the Commission by one of the addressees of a Commission decision applying competition rules. The interest which that undertaking has in the result of the case pending before the Court of First Instance is not affected by the striking out of the case before the national court where it is struck out at the request of the opposite party and the person seeking leave to intervene is still liable to be summoned before the national court in proceedings having the same subject-matter as the case which was struck out.
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1. Officials ° Actions ° Prior complaint through official channels ° Time-limits ° Matter of public policy ° Expiry ° Re-opening ° Conditions ° New fact ° Request under Article 90(1) of the Staff Regulations ° No effect

(Staff Regulations, Arts 90 and 91)

2. Officials ° Actions ° Prior complaint through official channels ° Implied decision rejecting a request not challenged within the time-limit ° Subsequent express decision ° Confirmatory measure ° Expiry

(Staff Regulations, Arts 90 and 91)

Summary

1. The time-limits for submitting complaints and bringing actions laid down by Articles 90 and 91 of the Staff Regulations, applicable by way of analogy to members of the temporary and auxiliary staff under Articles 46 and 73 of the Conditions of Employment of Other Servants of the European Communities, are a matter of public policy and the fact that the administration replies at the pre-litigation stage to the arguments put forward by the complainant on the substance of his claim does not exempt the Court from the obligation to verify whether the action is admissible from the point of view of observance of the time-limits laid down by the Staff Regulations.

Although a new substantive fact may justify a request for a review of a decision adversely affecting an official after the time-limit for lodging a complaint has expired, the person concerned must challenge the express or implied rejection of such request within the time-limit laid down in Article 90(2) of the Staff Regulations, and the lodging of a further request for a review cannot re-open or extend that time-limit. The right of every official under Article 90(1) of the Staff Regulations to request the appointing authority to take a decision relating to him does not allow the time-limits for complaints and actions laid down in Articles 90 and 91 of the Staff Regulations to be disregarded by indirectly calling in question a previous decision not challenged within the prescribed period.

2. Although Article 91(3) of the Staff Regulations provides that where a complaint is rejected by express decision after being rejected by implied decision but before the time-limit for bringing an action has expired, the latter period will start to run afresh, that provision cannot apply at the stage of the request and before the complaint is lodged. As a provision on the rules for calculating time-limits for bringing actions, it must be interpreted literally and strictly. The express rejection of a request after an implied decision rejecting the same request is a purely confirmatory measure which cannot as such re-open the time-limit for lodging a complaint under Article 90(2) of the Staff Regulations.
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Applications for interim measures ° Suspension of operation of a measure ° Interim measures ° Conditions for granting ° Serious and irreparable damage ° Balancing of all the interests involved ° Application for suspension of a negative act ° Measure applied for plainly ineffective ° Measure applied for outside the powers of the judge hearing the application for interim relief ° Measure applied for plainly out of proportion in view of its consequences for the institution concerned ° Damage capable of being compensated by compliance with the judgment to be given in the main proceedings

(EEC Treaty, Arts 185 and 186; Rules of Procedure of the Court of First Instance, Art. 104(2))
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Procedure ° Costs ° Demand for costs ° Time-limit for submission ° Taxation ° Recoverable costs ° Concept ° Factors to be taken into consideration

(Rules of Procedure of the Court of First Instance, Arts 91(b) and 92(1))

Summary

Where a party which is owed costs waits for about one year before submitting a demand for them, that period does not exceed the reasonable period beyond which the party owed costs might justifiably be regarded as having waived its right to recover them.

In the absence of Community provisions laying down fee scales, the Community judicature must, when taxing costs under Article 92(1) of the Rules of Procedure of the Court of First Instance, assess in its discretion the relevant features of the case, taking into account the purpose and nature of the proceedings, their significance from the point of view of Community law, as well as the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the financial interest which the parties had in the proceedings, but without taking account of any national scales of lawyers' fees or any agreement concluded in that regard between the party concerned and its agents or advisers.

Translation costs incurred by an intervener do not generally constitute expenses necessarily incurred for the purpose of the proceedings within the meaning of Article 91(b) of the Rules of Procedure. The position may be otherwise where the translation costs are offset by a reduction in the time which the intervener' s lawyers had to spend on the case.

Since, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the date of its decision, there is no need to give a separate ruling on the costs incurred by the parties for the purposes of the taxation proceedings.
Order of the Court of First Instance (Second Chamber, extended composition) of 28 November 1996. - Associazione Italiana Tecnico Economica del Cemento v Commission of the European Communities. - Taxation of costs. - Case T-447/93 DEPE.



European Court reports 1996 Page II-01631



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1 Procedure - Costs - Taxation - Factors to be taken into account

(Rules of Procedure of the Court of First Instance, Arts 91(b) and 92(1))

2 Procedure - Costs - Taxation - Recoverable costs - Meaning - Involvement of more than one lawyer

(Rules of Procedure of the Court of First Instance, Arts 91(b) and 92(1))

Summary

3 The Community judicature is not empowered to tax the fees payable by the parties to their own lawyers but may determine the amount of those fees which may be recovered from the party ordered to pay the costs. It follows that the Court is not obliged to take account of any national scales of lawyers' fees or any agreement concluded in that regard.

In the absence of Community provisions laying down fee scales, the Court must make an unfettered assessment of the facts of the case, taking into account the purpose and nature of the proceedings, their significance from the point of view of Community law, as well as the difficulties presented by the case, the amount of work generated by the dispute for the lawyer involved and the financial interest which the parties had in the proceedings.

4 Where a dispute presents particular difficulties, the remuneration of more than one lawyer may be regarded as falling within the ambit of `expenses necessarily incurred', within the meaning of Article 91(b) of the Rules of Procedure of the Court of First Instance.
ORDER OF THE COURT OF FIRST INSTANCE (Second Chamber)

25 October 1994

Case T-245/94

Olga B eredima

v

Court of Justice of the European Communities

‛Manifest inadmissibility of the application’

Full text in French II-675

Application for:

the partial annulment of the list of suitable candidates drawn up by the selection board of Competition No CJ 129/91.

Decision:

Application dismissed.

Abstract of Order

The applicant, an official in grade C 3 at the Court of Justice, participated in die tests for internal competition No CJ 129/91 organized for the recruitment of a principal secretary whose language was Greek.

On 4 February 1994, the applicant was informed that she was fourth on the list of five successful candidates.

By complaint of 16 February 1994, the applicant requested that the names of the candidates in first and second places be removed from the list of suitable candidates on the ground that it was public knowledge that they had not filed certain of the requisite supporting documents within the time-limit set by the competition notice. That complaint was rejected.

Admissibility

The Court considers that this application seeks the partial annulment of the list of suitable candidates drawn up by the competition selection board and not the making of an injunctive order. The objection of inadmissibility raised by the defendant must accordingly be rejected (paragraph 16).

However, the Court's jurisdiction under Article 91 of the Staff Regulations is limited to reviewing the legality of acts adversely affecting officials. The decision of a selection board drawing up a list of suitable candidates is a preparatory act relating to the decision to appoint and its unlawfulness may accordingly be pleaded only in the context of an action challenging the decision for which it paved the way (paragraphs 17 and 18).

See: 143/84 Vlachou v Court of Auditors [1986] ECR 459, para. 11

It is also clear that the applicant's submission that the list of suitable candidates definitively determines the institution's position after the competition is misconceived. Although the appointing authority is, as a general rule, bound to respect the order of priority shown in the list of suitable candidates, it may none the less depart from that order provided that it gives clear and complete reasons for deciding to do so (paragraph 19).

See: Vlachou v Court of Auditors, cited above, para. 11

Operative part:

The application is dismissed as manifestly inadmissible.
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1. Application for interim measures - Suspension of operation of a measure - Interim measures - Request for measures outside the scope of the main action - Inadmissibility

(EEC Treaty, Arts 185 and 186; Rules of Procedure of the Court of First Instance, Art. 104(1))

2. Application for interim measures - Suspension of operation of a measure - Total or partial suspension of a decision conditionally authorizing a concentration between undertakings - Court lacking sufficient information - Parties asked to provide information - Suspension granted until the judge hearing the application for interim measures determines, in the light of the information to be communicated, the significance of the conditions laid down in the decision

(EEC Treaty, Art. 185; Rules of Procedure of the Court of First Instance, Art. 104(2))

Summary

1. An application to suspend the operation of a measure is inadmissible if the measure of which suspension is sought is not the same as that against which the main action is brought. The same applies to an application for any other interim measure which does not relate to the matter at issue in the main action.

For that reason, an application to suspend a proceeding under the competition rules conducted pursuant to Regulation No 17 is inadmissible if the main action is directed against a decision taken at the conclusion of a proceeding under Regulation No 4064/89 on the control of concentrations and if the applicant bases his application merely on alleged contradictions in the Commission' s attitude in the two sets of proceedings.

2. If an applicant, alleging serious and irreparable damage, applies for suspension of a Commission decision which requires, as a condition for authorizing a concentration between third-party undertakings, that those undertakings withdraw from a company in which the applicant is a shareholder, and the judge hearing the application does not have enough information to assess the risk of such damage, the judge must order the parties to supply the relevant information.

If, pending receipt of such information, the existence of the company of which the applicant is a shareholder might be endangered if the decision concerned is not suspended and such suspension does not appear likely to have serious effects on the rights of others not parties to the proceedings or to prejudice either the public interest or the Commission' s interest in the immediate implementation of its decisions, an order must be granted, as a protective measure, suspending operation of the decision in so far as it might entail the dissolution of the company of which the applicant is a shareholder.