ddrg/super_eurlex huggingface dataset:
46

In support of their application for annulment of the decision of 30 July 2019, the applicants put forward seven pleas in law. The first plea in law alleges infringement of the principles of transparency, proportionality and equal treatment in that the Commission failed to resolve its doubts with regard to the documents filed by the applicants. The second plea in law alleges infringement of the principles of transparency and proportionality, and breach of the provisions of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1) (‘the financial regulation’), in that the Commission failed to justify its decision to exclude the applicants from the further tendering procedure and failed to grant the applicants access to the detailed evaluation report or provide them with information on the advantages and characteristics of the tenderers included on the shortlist. The third plea in law alleges infringement of the general principle that the tender documents are to be protected from any changes during the tendering procedure. The fourth plea in law alleges infringement of Article 5(1) and (2) of Regulation (EU) No 231/2014 of the European Parliament and of the Council of 11 March 2014 establishing an Instrument for Pre-accession Assistance (IPA II) (OJ 2014 L 77, p. 11) and Article 1(3) and (6) of Regulation (EU) No 236/2014 of the European Parliament and of the Council of 11 March 2014 laying down common rules and procedures for the implementation of the Union’s instruments for financing external action (OJ 2014 L 77, p. 95) due to an infringement of the general principles of public procurement law. The fifth plea in law alleges infringement of the provisions of the ‘Practical Guide on Procurement and Grants for European Union external actions’ with regard to paragraph 17 of the contract notice. The sixth plea in law alleges infringement of the provisions of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) in that the Commission did not justify its decision to exclude the applicants from the further tendering procedure and failed to grant the applicants access to the detailed evaluation report or provide them with information on the advantages and characteristics of the tenderers included on the shortlist. Lastly, the seventh plea in law alleges infringement of the selection criteria set out in paragraph 17.2(a) of the contract notice, which the Commission failed to apply correctly.
171

Article 17 of the Delegated Regulation, entitled ‘Communication of information’, provides: ‘1. The Commission shall disclose the details underlying the essential facts and considerations on the basis of which the Commission’s decisions are taken. 2. Disclosure shall be given in writing. It shall contain the Commission’s findings and shall reflect its intention to reintroduce normal Common Customs Tariff duties or not. 3. Disclosure shall be made, with due regard to the protection of confidential information, as soon as possible and, normally, not later than 45 days prior to a definitive decision by the Commission of any proposal for final action and in any case at an appropriate time for the parties to make comments and for those comments to be considered by the Commission. Where the Commission is not in a position to disclose certain facts or considerations at that time, these shall be disclosed as soon as possible thereafter. 4. Disclosure shall not prejudice any subsequent decision which may be taken but where such decision is based on any different facts and considerations, these shall be disclosed as soon as possible. 5. Submissions made after disclosure is given shall be taken into consideration only if received within a period to be set by the Commission in each case, which shall be at least 14 days, due consideration being given to the urgency of the matter.’
EU trade mark – Procedural provisions – Decisions of the Office – Observance of the rights of the defence – Scope of the principle

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a); European Parliament and Council Regulation 2017/1001, Art. 94(1))

(see paras 30, 32)
7.

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 – Weighing elements of similarity or difference between the signs – Taking into account of the intrinsic characteristics of the signs or the conditions in which the goods or services are marketed (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 60, 61)
4.

EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Assessment of the descriptive nature of a sign – Criteria – Composite mark – Taking into account the overall perception of the mark by the relevant public (European Parliament and Council Regulation 2017/1001, Art. 7(1)(c)) (see paras 33-35)
Judgment of the General Court (Ninth Chamber) of 28 April 2021 –

Comercializadora Eloro v EUIPO – Zumex Group (JUMEX)

(Case T‑310/20)

(EU trade mark – Opposition proceedings – Application for the EU figurative mark JUMEX – Earlier EU figurative mark zumex – 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 24-26)

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 – Figurative marks JUMEX and zumex (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 41, 42)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 9 March 2020 (Case R 534/2019-2), relating to opposition proceedings between Zumex Group and Comercializadora Eloro.

Operative part

The Court:

1. Dismisses the action;
EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Separate examination of the various grounds for refusal – Interpretation of the grounds for refusal in the light of the public interest underlying each of them

(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b) and (c))

(see paras 54-56)
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 – Similarity between the goods or services in question – Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 44, 49, 53)
European Parliament – Rules on costs and indemnities of MEPs – Parliamentary assistance allowances – Check relating to the use of parliamentary assistance expenses – Burden of proof

(Decision of the Bureau concerning implementing measures for the Statute for Members of the European Parliament, Arts 33(1) and (2), and 68)

(see paras 39-47, 59, 60, 96)
Judgment of the General Court (Fifth Chamber) of 30 June 2021 –

Acciona v EUIPO – Agencia Negociadora PB (REACCIONA)

(Case T‑362/20)

(EU trade mark – Revocation proceedings – EU word mark REACCIONA – Genuine use of the mark – Article 51(1)(a) of Regulation (EC) No 207/2009 (now Article 58(1)(a) of Regulation (EU) 2017/1001) – Existence of domestic legal proceedings – No proper reason for non-use)

1. EU trade mark – Surrender, revocation and invalidity – Examination of the application – Proof of use of the earlier mark – Genuine use or proper reasons for non-use – Burden of proof (Council Regulation No 207/2009, Arts 15, 42(2), 51(1), 57(2)) (see paras 30, 31)

2. EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Concept of ‘proper reasons’ for non-use – Independent and uniform interpretation – Obstacles bearing a direct relation to the trade mark rendering its use unreasonable or impossible and independent of the volition of the trade mark proprietor (Council Regulation No 207/2009, Arts 15(1) and 51(1)(a)) (see paras 37-40, 46-48)

3. EU trade mark – Surrender, revocation and invalidity – Causes of revocation – Absence of genuine use of a trade mark – Word mark REACCIONA (Council Regulation No 207/2009, Art. 51(1)(a)) (see paras 44, 50, 56, 59, 66, 67, 70, 71, 74)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of

2 April 2020 (Case R 652/2019-4), relating to revocation proceedings between Agencia Negociadora PB and Acciona.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Fifth Chamber) of 1 September 2021 –

Bimbo Donuts Iberia v EUIPO – Hijos de Antonio Juan (DONAS DULCESOL)

(Case T‑697/20)

(EU trade mark – Opposition proceedings – Application for EU word mark DONAS DULCESOL – Earlier national word mark DONAS – Relative ground for refusal – Article 8(1)(b) of Regulation (EU) 2017/1001 – Lack of proof of genuine use of earlier mark – Classification of the goods in respect of which genuine use has been shown – Article 47(2) and (3) of Regulation 2017/1001)

1. EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Need to determine that question, once raised by the applicant before the decision on the opposition (European Parliament and Council Regulation 2017/1001, Art. 47(2)) (see paras 18, 19, 58)

2. EU trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark – Identification of the goods or services concerned by the trade mark – Requirements of clarity and precision – Determination, by the competent authorities and the economic operators, of the extent of the protection conferred by the trade mark – Limits (European Parliament and Council Regulation 2017/1001, Art. 47(2)) (see paras 28, 29, 35, 48)

3. EU trade mark – Lodging of application for EU trade mark – Identification of the goods or services concerned by the trade mark – Use of the general indications in the headings of the classes of the Nice classification – Scope (see para. 36)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 7 September 2020 (Case R 514/2020-5), relating to opposition proceedings between Bimbo Donuts Iberia and Hijos de Antonio Juan.

Operative part

The Court:

1. Dismisses the action;
Officials – Staff of the European Investment Bank – Disciplinary measures – Disciplinary proceedings – Audi alteram partem – Observance of the rights of the defence – Hearing of the witnesses – Right of the person concerned to challenge the testimony against him or her and question witnesses against him or her

(Charter of Fundamental Rights of the European Union, Art. 41(2)(a))

(see paras 49-52)
EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Overlap of the scope of the grounds set out in Article 7(1)(b) and Article 7(1)(c) of Regulation 2017/7(1)(b) and 7(1)(c) of Regulation 2017/1001

(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b) and (c))

(see paras 60, 61)
Judgment of the General Court (Fifth Chamber) of 20 October 2021 –

Intis v EUIPO – Televes (TELEVEND)

(Case T‑112/20)

(EU trade mark – Invalidity proceedings – EU word mark TELEVEND – Earlier EU word mark TELEVES – 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 – Surrender, revocation and invalidity – Relative grounds for invalidity – Existence of an identical or similar earlier mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Criteria for assessment (Council Regulation No 207/2009, Arts 8(1)(b), and 53(1)(a)) (see paras 19, 64)

2. EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – Existence of an identical or similar earlier 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, Arts 8(1)(b), and 53(1)(a)) (see para. 20)

3. EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – Existence of an identical or similar earlier mark registered for identical or similar goods or services – Similarity between the goods or services in question – Criteria for assessment (Council Regulation No 207/2009, Arts 8(1)(b), and 53(1)(a)) (see paras 27, 36)

4. EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – Existence of an identical or similar earlier mark registered for identical or similar goods or services – Similarity of the marks concerned – Criteria for assessment – Composite mark (Council Regulation No 207/2009, Arts 8(1)(b), and 53(1)(a)) (see paras 47, 52, 53)

5. EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – Existence of an identical or similar earlier mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Word marks TELEVEND and TELEVES (Council Regulation No 207/2009, Arts 8(1)(b), and 53(1)(a)) (see paras 68, 70)

6. EU trade mark – Surrender, revocation and invalidity – Relative grounds for invalidity – Existence of an identical or similar earlier mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Weighing elements of similarity or difference between the signs – Objective marketing considerations to be taken into account (Council Regulation No 207/2009, Arts 8(1)(b), and 53(1)(a)) (see para. 69)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 12 December 2019 (Case R 1923/2019-5), relating to invalidity proceedings between Televes and Intis.

Operative part

The Court:

1. Dismisses the action;
EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Overlap of the scope of the grounds set out in Article 7(1)(b) and (c) of Regulation 2017/1001

(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b) and (c))

(see paras 18, 19)
Judgment of the General Court (Fourth Chamber) of 17 November 2021 –

KV v Commission

(Case T‑430/20)

(Civil service – Officials – Recruitment – Notice of open competition EPSO/AD/371/19 – Decision of the selection board to exclude the applicant from the next stage of the competition – Eligibility criterion related to professional experience – Compliance of the criterion used by the selection board with the competition notice)

Officials – Competitions – Competition based on qualifications and tests – Conditions for admission – Diplomas produced or professional experience attested – Discretion of the selection board – Determination of assessment criteria – Whether permissible – Limits – Adherence to the notice of competition – Adoption of a criterion inconsistent with the notice of competition – Not permissible

(Staff Regulations of Officials, Annex III, Arts 1(1) and 5(1))

(see paras 27, 28, 33, 41)

Re:

Application based on Article 270 TFEU seeking annulment first, of the decision of the selection board of 19 September 2019 refusing the applicant’s request for reconsideration of the decision not to admit him to the next stage of open competition EPSO/AD/371/19 and, second, of the decision of the appointing authority of 31 March 2020 rejecting the applicant’s complaint against that decision.

Operative part

The Court:

1. Annuls the decision of the selection board of 19 September 2019 rejecting the request for review of KV’s exclusion from Competition EPSO/AD/371/19;
Judgment of the General Court (Seventh Chamber) of 10 November 2021 –

Di Bernardo v Commission

(Case T‑41/20)

(Civil Service – Officials – Recruitment – Notice of competition – Open competition – Conditions of admission – Non-inclusion on the reserve list – Insufficient professional experience – Article 266 TFEU – Decision adopted to give effect to a judgment of the General Court – Measures necessary to give effect to a judgment delivered in an action for annulment – Article 2 of Annex III to the Statute – Equal treatment – Manifest error of assessment – Liability)

1. Officials – Competitions – Notice of competition – Subject matter – Conditions for admission – Possibility of laying down more detailed conditions – Selection Board’s discretion (Staff Regulations of Officials, Annex III, Art. 1(1)) (see paras 39, 40, 51, 52)

2. Officials – Competitions – Competition based on qualifications and tests – Conditions for admission – Fixing by the competition notice – Selection board’s assessment of candidates’ professional experience – Judicial review – Limits – Manifest error of assessment – Meaning (Staff Regulations of Officials, Annex III, Arts 2 and 5) (see paras 72, 74-77)

3. Actions brought by officials – Judgment annulling a measure – Effects – Obligation to implement – Judgment annulling an act concluding an administrative procedure which comprises several stages – Resumption of the procedure at the point at which the illegality occurred – Whether permissible (Art. 266 TFEU) (see para. 89)

4. Actions brought by officials – Judgment annulling a measure – Effects – Obligation to implement – Scope – Decision not necessarily having to be on the same grounds as those appearing in the annulled measure (Art. 266 TFEU) (see paras 90, 95)

5. Officials – Competitions – Competition based on qualifications and tests – Conditions for admission – Supporting documents – Candidates’ obligation to ensure that documents are adequate (Staff Regulations of Officials, Annex III, Art. 2) (see para. 102)

Re:

Application under Article 270 TFEU seeking, first, annulment of the decision of the selection board in the open competition on the basis of tests EPSO/AST-SC/03/15 of 13 March 2019, taken with a view to complying with the judgment of 29 November 2018, Di Bernardo v Commission (T‑811/16, not published, EU:T:2018:859), not to include the applicant’s name on the reserve list for the recruitment of secretaries/clerks at grade SC 1 in the field of financial support and, secondly, compensation for the harm that the applicant claims to have suffered as a result.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Second Chamber) of 24 November 2021 –

Włodarczyk v EUIPO – Ave Investment (dziandruk)

(Case T‑434/20)

(EU trade mark – Invalidity proceedings – EU figurative mark dziandruk – Absolute ground for invalidity – Absence of bad faith – Article 52(1)(b) of Regulation (EC) No 207/2009 (now Article 59(1)(b) of Regulation (EU) 2017/1001))

1. EU trade mark – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Re-evaluation of the facts in the light of evidence produced for the first time before it – Precluded (European Parliament and Council Regulation 2017/1001, Art. 72) (see para. 14)

2. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Criteria for assessment – Taking into account of all relevant factors at the time of filing the application for registration – Applicant’s knowledge that a third party is using an identical or similar sign – Intention of the applicant – Degree of legal protection of the signs at issue – Commercial logic underlying the registration of the contested sign as an EU trade mark – Chronology of events characterising the filing of the trade mark application (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 26-28, 30-35, 49)

3. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Concept of bad faith – Scope (Council Regulation No 207/2009, Art. 52(1)(b)) (see para. 29)

4. Action for annulment – Subject matter – Decision based on several pillars of reasoning, each sufficient to justify the operative part – Annulment of such a decision – Conditions (Art. 263 TFEU) (see para. 38)

5. EU trade mark – Surrender, revocation and invalidity – Absolute grounds for invalidity – Applicant in bad faith when lodging the trade mark application – Figurative mark dziandruk (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 55, 56)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 8 May 2020 (Case R 2192/2019-4), relating to invalidity proceedings between Mr Włodarczyk and Ave Investment.

Operative part

The Court:

1. Dismisses the action;
Community designs – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Review of the lawfulness of decisions of the Boards of Appeal – Limits

(Council Regulation No 6/2002, Art. 61; Rules of Procedure of the General Court, Art. 188)

(see paras 12, 92)
Actions brought by officials – Pleas in law – Plea in law alleging breach of the principle of legal certainty – Reliance on the inability to understand the procedure for updating the correction coefficients – Rejection

(Staff Regulations of Officials, Arts 64 and 65 and Annex XI)

(see paras 97-101)
Judicial proceedings – Action before the General Court – Possibility of a second exchange of pleadings – Discretion of the Court

(Rules of Procedure of the General Court, Art. 83)

(see paras 22, 23)
Officials – Competitions – Competition based on qualifications and tests – Conditions for admission – Diplomas produced or professional experience attested – Discretion of the selection board – Determination of assessment criteria – Whether permissible – Limits – Adherence to the notice of competition – Adoption of an additional criterion not mentioned in the notice of competition – Not permissible

(Staff Regulations of Officials, Annex III, Arts 1(1) and 5, first and third paras)

(see paras 25, 35-37, 51-54)
Commission – Powers – Implementation of the EU budget – Amounts receivable by the European Union arising under a contract made with an executive agency – Power of the Commission to adopt a decision to recover an amount from the Guarantee Fund – Recovery by an enforceable decision – Legal basis – Contractual origin of the claim – Irrelevance – Observance of the principle of sound financial management

(Arts 299, first para., and 317 TFEU; European Parliament and Council Regulation 2018/1046, Arts 2(67) and 100(2); European Parliament and Council Regulation No 1906/2006, Art. 38 and Annex)

(see paras 32-35, 40-42, 44, 45)