ddrg/super_eurlex huggingface dataset:
EU trade mark—Appeals procedure—Action before the EU judicature—Procedural role of the Office—Right of the Office, although designated as the defendant, to support the applicant’s claims—Functional independence of Boards of Appeal and their members

(Rules of Procedure of the General Court, Art. 178(2) and (3))

(see para. 20)
Judgment of the General Court (Ninth Chamber) of 21 June 2018 –

Haverkamp IP v EUIPO — Sissel (Pebble beach surface pattern)

(Case T‑228/16)

(Community design — Invalidity proceedings — International registration designating the European Union — Registered Community design representing a pebble beach surface pattern — Earlier design — Grounds for invalidity — Lack of novelty — Article 5 and Article 25(1)(b) of Regulation (EC) No 6/2002)

1. Community designs—Ground for invalidity—Lack of novelty—Previous disclosure of identical design—Proof of the disclosure (Council Regulation No 6/2002, Arts 5(1)(b) and (2), 7(1) and 25(1)(b); Commission Regulation No 2245/2002, Art. 28(1)(b)(v) and (vi)) (see paras 22, 25-27)

2. Community designs—Ground for invalidity—Lack of novelty—Previous disclosure of identical design—Representation of a pebble beach surface pattern (Council Regulation No 6/2002, Arts 5(1)(b), 7(1) and 25(1)(b)) (see paras 38-40, 46-48)

3. Community designs—Ground for invalidity—Lack of novelty—Previous disclosure of identical design—Earlier design intended to be incorporated into a different product or to be applied to such product—Irrelevant (Council Regulation No 6/2002, Art. 5(1)) (see para. 42)

Re:

Action brought against the decision of the Third Board of Appeal of EUIPO of 26 February 2016 (Case R 2619/2014-3) concerning invalidity proceedings between Sissel and Mr Haverkamp.

Operative part

The Court:

1. Dismisses the action;
Judicial proceedings—Application initiating proceedings—Formal requirements—Brief summary of the pleas in law on which the application is based—General reference to other documents not annexed to the application—Inadmissibility

(Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 177(1)(d))

(see paras 14, 15)
Judgment of the General Court (Fifth Chamber) of 31 May 2018 –

Groningen Seaports and Others v Commission

(Case T‑160/16)

(State aid — Corporate tax exemption granted by the Netherlands to six Dutch public seaports — Decision declaring the aid scheme incompatible with the internal market — Obligation to state reasons — Equal treatment)

1. Actions for annulment—Jurisdiction of the EU judicature—Defunct legal person that is the addressee of a decision of an EU institution—Action for annulment capable of being brought by the addressee’s successor (Art. 263, fourth para., TFEU) (see para. 59)

2. State aid—Commission decision finding aid incompatible with the internal market—Obligation to state reasons—Scope (Art. 296, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 41) (see paras 78, 91)

3. Member States—Obligations—Infringement—Justification based on the possible failure to fulfil obligations of another Member State—Not permissible (see para. 97)

4. 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—Abstract statement—Inadmissibility (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 76(d)) (see para. 113)

5. EU law—Principles—Equal treatment—Need to comply with the principle of legality—Impossible to rely on an unlawful act committed in favour of a third party (see para. 116)

6. EU law—Principles—Equal treatment—Infringement—Meaning (see para. 119)

Re:

Application under Article 263 TFEU for annulment of Commission Decision (EU) 2016/634 of 21 January 2016 on aid measure SA.25338 (2014/C) (ex E 3/2008 and ex CP 115/2004) implemented by the Netherlands — Corporate tax exemption for public undertakings (OJ 2016 L 113, p. 148).

Operative part

The Court:

1. Grants Havenbedrijf Moerdijk NV leave to replace Havenschap Moerdijk as applicant;

2. Dismisses the action;

3. Orders Groningen Seaports NV and the other applicants whose names appear in the annex to bear their own costs and those incurred by the European Commission;
Judicial proceedings—Application initiating proceedings—Formal requirements—Brief summary of the pleas in law on which the application is based

(Rules of Procedure of the General Court, Art. 76)

(see para. 84)
The need for protection against arbitrary or disproportionate intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, is recognised as a general principle of law of the European Union. Consequently, with a view to observing that general principle, an inspection decision must be directed at gathering the necessary documentary evidence to check the actual existence and scope of a given factual and legal situation concerning which the Commission already possesses certain information, constituting reasonable grounds for suspecting an infringement of the competition rules.

In other words, having reasonable grounds for suspecting infringement of the competition rules is a prerequisite for the Commission to order an inspection pursuant to Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 101 and 102 TFEU. Likewise, also in accordance with that general principle, the terms of a decision ordering an inspection must not exceed the scope of the infringement which may be suspected on such grounds.

It follows that, inasmuch as the statement of reasons for that decision circumscribes the powers conferred on the Commission’s agents, that general principle precludes wordings, in inspection decisions, that would extend the scope of those powers beyond that arises from the reasonable grounds which the Commission has at its disposal on the date of adoption of such a decision.

In that context, the determination whether the Commission had reasonable grounds for suspecting an infringement of the competition rules before the adoption of an inspection decision is not the only means by which the Court can ensure that inspection decisions are not arbitrary. The review of the statement of reasons on which a decision is based also allows the courts to ensure that the principle of protection against arbitrary and disproportionate intervention is respected, in so far as the statement of reasons makes it possible to show that the intervention envisaged on the premises of the undertakings concerned is justified.

Accordingly, in circumstances where the General Court considers that the presumed facts that the Commission intends to investigate, together with the matters to which the inspection must relate, are defined sufficiently precisely in its decision ordering an inspection, the Court may conclude that an inspection decision was not arbitrary, without it being necessary to check substantively the content of the indicia in the Commission’s possession at the date of adoption of the decision. By contrast, when the reasons stated in an inspection decision alone do not make it possible to presume that, on the date of adoption of that decision, the Commission did indeed have reasonable grounds to suspect an infringement such as that described in that decision, the General Court must examine the indicia in the Commission’s possession or other evidence which may establish the existence of such grounds and whether they are reasonable.

(see paras 34-37, 41, 50, 51, 54-56, 65)
European Anti-Fraud Office (OLAF)—Investigations—On-the spot checks and inspections—Compliance with the current rules and practices of the Member State concerned—Reservation in favour of the application of EU law

(European Parliament and Council Regulation No 883/2013, Art. 3(3); Council Regulation No 2185/96, Art. 6(1), third para.)

(see paras 57, 58)
Actions brought by officials — Acts adversely affecting an official — Definition — Decision implementing a legislative amendment concerning the reduction in annual leave of officials posted in third countries — Included

(Staff Regulations of Officials, Arts 90(2) and 91(1), and Annex X, Art. 6, as amended by Regulation No 1023/2013)

(see paras 34-36)
Judgment of the General Court (First Chamber) of 19 June 2019 –

L’Oréal v EUIPO — Guinot (MASTER DRAMA)

(Case T‑183/16 RENV)

(EU trade mark — Opposition proceedings — Application for EU word mark MASTER DRAMA — Earlier national figurative mark MASTERS COLORS PARIS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

1. 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 36, 37, 42, 76, 80, 81, 83, 86, 88)

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 — Similarity of the marks concerned — Criteria for assessment — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 41, 59)

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 — Assessment only on the basis of the dominant element of a complex mark — Conditions (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 43, 44, 48, 57)

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 — Weak distinctive character of the earlier mark — Effect (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 54)

5. 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 mark MASTER DRAMA and figurative mark MASTERS COLORS PARIS (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 62, 65, 66, 75, 90)

6. EU trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — EUIPO’s previous decision-making practice — Principle of legality — Need for a strict and complete examination in each particular case (Council Regulation No 207/2009) (see para. 89)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 23 February 2016 (Case R 2500/2014-5) relating to opposition proceedings between Guinot and L’Oréal.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fourth Chamber) of 8 May 2019 –

Enrico Colombo and Corinti Giacomo v Commission

(Case T‑690/16)

(Public works contracts — Tendering procedure — JRC in Ispra — Works for the construction and maintenance of water pipes and district heating/cooling substations — Rejection of a tenderer’s bid — Action for annulment — Action for damages — Obligation to state reasons)

1. Action for annulment — Actionable measures — Meaning — Measures producing binding legal effects — Preparatory measures — Not included (Art. 263 TFEU) (see paras 65, 66)

2. Action for annulment — Jurisdiction of the EU judicature — Claim seeking that directions be issued to an institution — Inadmissibility (Arts 263, 264 and 266 TFEU) (see para. 69)

3. EU public contracts — Conclusion of a contract following a call for tenders — Discretion of the institutions — Judicial review — Limits (see para. 81)

4. Action for annulment — Pleas in law — Action against a decision rejecting a tender submitted by a tenderer in the context of a public procurement procedure launched by an EU institution — Plea in law alleging a manifest error of assessment on the part of the contracting authority — Burden of proof incumbent on the applicant (Art. 263 TFEU) (see para. 82)

5. Non-contractual liability — Conditions — Unlawfulness — Injury — Causal link — One of the conditions not satisfied — Claim for compensation dismissed in its entirety (Art. 340, second para. TFEU) (see para. 118)

6. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision, in the award procedure for a public works contract, not to accept a tender — Obligation on the awarding authority to notify, on written request, the characteristics and relative advantages of the tender accepted and the name of the successful tenderer (Art. 296 TFEU; European Parliament and Council Regulation 2015/1929, Art. 113(2); Commission Regulation 2015/2462, Art. 161(2)) (see para. 126)

Re:

First, application on the basis of Article 263 TFEU seeking, in essence, annulment of the Commission’s decisions rejecting the tender submitted by the applicants in connection with the tendering procedure JRC/IPR/2016/C4/0002/OC, concerning a Framework agreement for the construction and maintenance of water pipes and heating/cooling substations at the Joint Research Centre (JRC) in Ispra (Italy) and awarding that contract to another tenderer and, secondly, application on the basis of Article 268 TFEU seeking compensation in respect of the harm allegedly suffered by the applicants as a result of those decisions.

Operative part

The Court:

1. Dismisses the action;
Judicial proceedings — 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; Rules of Procedure of the General Court, Art. 76(d))

(see para. 97)
Common commercial policy – Protection against dumping – Course of the investigation – Obligation for the interested parties to provide the necessary information – Scope – Verification by the Commission

(Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (1994 Anti-Dumping Agreement), Arts 6.6 and 6.7; Council Regulation No 1225/2009, Arts 6(2) and (8), 16(1) and (3) and 18(3) and (6); European Parliament and Council Regulation 2016/1036, Arts 6(2) and (8), 16(1) and (3) and 18(6))

(see paras 46-50, 53, 55, 122)
99

Concerning the applicants’ assertion that the Commission did not attach any significance to the impact of the imminent expansion of Hangzhou Bioking’s production volumes on the Union industry’s profitability and on the other financial indicators, which will deteriorate in the near future, it should be borne in mind that the determination of injury following the initiation of a proceeding requires, pursuant to Article 3(1) of the basic regulation, that it be established that there is ‘material injury to the [Union] industry, threat of material injury to the [Union] industry or material retardation of the establishment of [the Union] industry’. Since the complaint lodged by the EU producers was based on — in their view already established — material injury to the Union industry, the Commission examined whether such injury could be established during the period considered. As can be seen from recitals 6 and 141 of the contested decision, the Commission’s analysis dealt only with material injury to the Union industry within the meaning of that provision, and not with Chinese exporters’ future production capacity. However, the applicants’ line of argument is based on the potential future expansion of Chinese exporting producers’ production capacity, which is relevant in the context of an investigation concerning a ‘threat of material injury’ within the meaning of Article 3(1) of the basic regulation. Consequently, the applicants’ arguments relating to a prospective analysis of the Union industry are, in this context, ineffective.
60

In the present case, it should be noted that, in accordance with the Final Commitments, Telefónica Deutschland committed, in a legally binding way, to ‘proactively’ sending a self-commitment letter to all existing MVNOs or existing service providers which have an agreement with it or with E-Plus for 2G, 3G or 4G network access, by which it waives its contractual rights of ordinary termination set out in the respective wholesale agreement until the end of year 2025 (paragraph 78 of the Final Commitments). In those circumstances, the Final Commitments indirectly created legal effects in favour of third parties referred to by the provisions of the non-MNO component, respect for which is subject to review by the competent national courts, without prejudice to the prerogatives granted to the Commission, in that field, by EU law. Consequently, without prejudice to the possibility for the Commission to find an infringement of the Final Commitments and to take measures it deems appropriate by means of a decision adopted under Article 8(4) and (5) of Regulation No 139/2004, it is entirely permissible for third parties referred to by the provisions of the non-MNO component, which could include the applicant, to rely thereupon before the competent national courts. It is then for the latter to rule on such disputes relating to the implementation of the Final Commitments. In that context, any opinion expressed by the Commission regarding the interpretation to be given to the Final Commitments constitutes only a possible interpretation which, contrary to decisions taken under Article 288 TFEU, only has persuasive value and does not bind the competent national courts. Moreover, under the provisions of Article 267 TFEU, those courts can or must refer a question for a preliminary ruling to the Court with regard to the validity or the interpretation of the Final Commitments or of Decision C(2014) 4443 final.
75

In addition, it must be observed that the EU institutions have previously decided, in other procedures, to amend or to repeal a review regulation that maintained anti-dumping measures in force, following the annulment of the regulation which preceded that review regulation. That was the case, in particular, for Council Regulation (EC) No 989/2009 of 19 October 2009 amending Regulation (EC) No 661/2008 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia (OJ 2009 L 278, p. 1), referred to by the Commission at the hearing. The adoption of that regulation followed the judgment of 10 September 2008, JSC Kirovo-Chepetsky Khimichesky Kombinat v Council (T‑348/05, not published, EU:T:2008:327). In that judgment, the General Court had annulled the regulation that preceded the review regulation, namely Council Regulation (EC) No 945/2005 of 21 June 2005 amending Regulation (EC) No 658/2002 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia and Regulation (EC) No 132/2001 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in, inter alia, Ukraine, following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 (OJ 2005 L 160, p. 1), which had extended the range of products affected by the anti-dumping measures. In the aftermath of that judgment, the Council decided, acting on a proposal from the Commission, after consultation of the Advisory Committee, to adopt Regulation No 989/2009, repealing with retroactive effect Council Regulation (EC) No 661/2008 of 8 July 2008 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) and a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 (OJ 2008 L 185, p. 1), with respect to the undertaking that had been the applicant before the General Court, as regards the goods affected by the annulment. The Council also created, in that context, a specific TARIC additional code for the undertaking that had been the applicant before the General Court. In the explanatory memorandum that accompanied the proposal for a Council Regulation (COM(2009) 493 final)), the Commission stated that that proposal was made ‘in the context of the implementation of a judgment of the [General Court]’.
69

In the first place, the case-law established by the judgment of 15 December 2005, Unicredito Italiano (C‑148/04, EU:C:2005:774), according to which the Commission may confine itself to examining the general and abstract characteristics of the scheme in question, without being required to examine each particular case in which it applies, does not exonerate it, in a case such as the present, from examining all the implications, both advantageous and disadvantageous, of the inherent characteristics of the disputed scheme (see paragraph 48 above), bearing in mind that the burden of proving that there is an advantage falls on the Commission. What is more, that case-law must be read in conjunction with the obligation on the Commission to conduct a diligent and impartial examination of the contested measure, so that it has at its disposal, when adopting the final decision, the most complete and reliable information possible for that purpose (see the case-law cited in paragraph 49 above; see also, to that effect, judgment of 28 November 2008, Hotel Cipriani and Others v Commission, T‑254/00, T‑270/00 and T‑277/00, EU:T:2008:537, paragraph 210). It follows that the case-law cited does not call into question the finding, in the present case, that the Commission erred in its assessment of whether there was an advantage. In any event, reliance on the case-law established by the judgment of 15 December 2005, Unicredito Italiano (C‑148/04, EU:C:2005:774) is ineffective since the error found does not relate to a failure to examine the situation of each of the beneficiaries but to the failure to take into account the specific nature of the sector to which the disputed measure relates, from the perspective of the extent of the tax deductions. It must be noted in addition that the contested decision does not merely classify the scheme at issue as an aid scheme but also expresses a view, in its grounds (recital 90) and its operative part (Article 1), on the aid individually granted to the four clubs named as beneficiaries, stating that ‘it [was], therefore, to be considered as unlawful and incompatible aid’. Consequently, contrary to the Commission’s assertion, the contested decision can be regarded as a decision relating both to an aid scheme and to individual aid.