ddrg/super_eurlex huggingface dataset:
Judgment of the General Court (Appeal Chamber) of 13 September 2016 —

Commission v Kakol

(Case T‑152/15 P)

‛Appeal — Civil service — Officials — Open competition — Non-admission of a candidate — Non-recognition of a diploma — Admission to a previous competition — Conditions of similar competitions — Obligation to state reasons’

Officials — Competitions — Competition based on qualifications and tests — Decision not to admit to tests — Obligation to state reasons — Scope — Different assessment of the same candidate in successive similar competitions — Lawfulness — No need for specific statement of reasons (Staff Regulations, Art. 25 and Annex III, Art. 5) (see paras 42, 43)

Re:

APPEAL against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 22 January 2015, Kakol v Commission (F‑1/14 and F‑48/14, EU:F:2015:5), seeking annulment of that judgment.

Operative part

The Court:

1. Annuls the judgment of the European Union Civil Service Tribunal (Second Chamber) of 22 January 2015, Kakol v Commission (F‑1/14 and F‑48/14, EU:F:2015:5);

2. Refers the case to a Chamber of the Court other than that which ruled on the present appeal;
Judgment of the General Court (Sixth Chamber) of 15 September 2016 —

AEDEC v Commission

(Case T‑91/15)

‛Technological research and development — ‘Horizon 2020’ framework programme for research and innovation — Calls for proposals in respect of work programmes 2014-2015 — Commission decision declaring the proposal submitted by the applicant ineligible — Obligation to state reasons — Rights of the defence — Proportionality — Openness — Manifest error of assessment’

1. EU law — Principles — Rights of defence — Right to be heard — Scope — Adoption of an individual decision on the basis of factors notified to the person concerned or known by the latter — No infringement (see para. 24)

2. Acts of the institutions — Statement of reasons — Obligation — Scope — Assessment of the duty to state reasons by reference to the circumstances of the case (Art. 296 TFEU) (see para. 34)

3. Actions for annulment — Grounds — Lack of or inadequate statement of reasons — Plea having to be raised of the Court’s own motion — Raised late by the applicant — Irrelevant (Arts 263 TFEU and 296 TFEU) (see para. 37)

4. EU law — Principles — Proportionality — Scope (Art. 5(4) TEU) (see para. 46)

5. EU law — Principles — Equal treatment — Concept (see para. 53)

6. Industry — Action necessary to ensure the competitiveness of industry — Research and technical development — Framework programme for research and innovation (Horizon 2020) — Assessment of projects submitted following a call for proposals — No obligation on the Commission to make those assessments public (European Parliament and Council Regulation No 1290/2013) (see para. 58)

7. Industry — Action necessary to ensure the competitiveness of industry — Research and technical development — Framework programme for research and innovation (Horizon 2020) — Assessment of projects submitted following a call for proposals — Judicial review — Limits (European Parliament and Council Regulation No 1290/2013) (see para. 68)

8. Industry — Action necessary to ensure the competitiveness of industry — Research and technical development — Framework programme for research and innovation (Horizon 2020) — Assessment of projects submitted following a call for proposals — Award to a project of a mark higher than the eliminatory mark — No obligation to grant that project financing (European Parliament and Council Regulation No 1290/2013, Art. 15(1) and (6)) (see para. 69)

Re:

APPLICATION on the basis of Article 263 TFEU seeking the annulment of the decision of 4 September 2014 in which the Commission rejected the request for financing submitted by the applicant on behalf of the consortium Latin Plan.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Appeal Chamber) of 13 September 2016 —

Pohjanmäki v Council

(Case T‑410/15 P)

‛Appeal — Civil service — Officials — Promotion — 2013 promotion year — Respective roles of the Appointing Authority and the Joint Consultative Committee — Absence of staff reports — Failure on the part of the members of the JCC to consult the staff reports — Compatibility of the functions of the rapporteur in the JCC with those of the former rapporteur — Equal treatment — Obligation to state reasons’

1. Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Judicial review — Limits (Staff Regulations, Art. 45) (see paras 28, 60)

2. Officials — Promotion — Consideration of comparative merits — Administration’s discretion — Scope — Taking account of staff reports — Other factors that may be taken into consideration (Staff Regulations, Art. 45) (see paras 29-31)

3. Officials — Promotion — Consideration of comparative merits — Procedures — Taking account of staff reports — Previous examination by promotion consultative committees — Procedures — Examination of staff reports by a single member of a promotion consultative committee — Admissibility (Staff Regulations, Art. 45) (see para. 48)

4. Officials — Promotion — Criteria — Merits — Taking account of seniority in grade — Subsidiary matter — Taking account of consistency of merits over time — Scope (Staff Regulations, Art. 45) (see para. 61)

5. Appeal — Pleas in law — Mistaken assessment of the facts — Inadmissibility — Review by the General Court of the assessment of the evidence — Possible only where the clear sense of the evidence has been distorted (Art. 257, third para., TFEU; Statute of the Court of Justice, Annex I, Art. 11(1)) (see para. 69)

6. Officials — Promotion — Complaint by a candidate not promoted — Rejection decision — Obligation to state reasons — Scope — Inadequate statement of reasons — Regularisation during the proceedings — Conditions (Art. 296 TFEU; Staff Regulations, Arts 25, second para., 45 and 90(2)) (see paras 77-80)

Re:

APPEAL brought against the judgment of the European Union Civil Service Tribunal (First Chamber) of 18 May 2015, Pohjanmäki v Council (F‑44/14, EU:F:2015:46) seeking to have that judgment set aside.

Operative part

The Court:

1. Dismisses the appeal;
Judicial proceedings—Introduction of new pleas during the proceedings—Conditions—Amplification of an existing plea—Lawfulness

(Rules of Procedure of the General Court, Art. 84(1))

(see para. 43)
Judgment of the General Court (Second Chamber) of 16 February 2017 — Tubes Radiatori v EUIPO — Antrax It (Radiators)

(Case T‑98/15)

(Community design — Invalidity proceedings — Registered Community design representing a radiator — Earlier design — Ground for invalidity — No individual character — Article 6 and Article 25(1)(b) of Regulation (EC) No 6/2002 — Enforcement by EUIPO of a judgment setting aside a decision of one of its Boards of Appeal — Right to be heard — Invitation to lodge evidence and observations following an annulment judgment of the General Court — Saturation of the state of the art)

1. Actions for annulment—Judgment annulling a measure—Effects—Obligation to implement—Scope—Both the operative part and the grounds of the judgment to be taken into account—Retroactive effect of annulment (Art. 266 TFEU) (see paras 24, 25)

2. Community designs—Appeals procedure—Action before the EU judicature—Implementation of a judgment annulling a decision adopted by a Board of Appeal—New examination of the appeal—Observance of the rights of the defence (Council Regulation No 6/2002, Art. 62) (see paras 37-40)

3. Community designs—Ground for invalidity—No individual character—Design not giving the informed user a different overall impression from that produced by the earlier design—Saturation of the state of the art—Relevance (Council Regulation No 6/2002, Arts 6 and 25(1)(b)) (see paras 57, 58)

4. Community designs—Appeals procedure—Action before the EU judicature—Power of the General Court to alter the contested decision—Limits (Council Regulation No 6/2002, Art. 61(3)) (see para. 60)

Re:

ACTION brought against the decision of the Third Board of Appeal of EUIPO of 9 December 2014 (Case R 1643/2014-3) relating to invalidity proceedings between Antrax It and Tubes Radiatori.

Operative part

The Court:

1. Annuls the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 December 2014 (Case R 1643/2014-3);

2. Dismisses the action as to the remainder;

3. Orders EUIPO to bear its own costs and to pay those incurred by Tubes Radiatori Srl;
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 between the goods or services in question—Complementary nature of the goods or services (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 37, 43, 45)
Judgment of the General Court (Ninth Chamber) of 16 February 2017 — Gruppe Nymphenburg Consult v EUIPO (Limbic® Map)

(Case T‑513/15)

(EU trade mark — Application for the EU word mark Limbic® Map — Lack of distinctive character — Absolute ground for refusal — Article 7(1)(c) of Regulation (EC) No 207/2009)

1. 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 — Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 17, 22, 36)

2. 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 — Concept — Mark composed of a word or neologism resulting from a combination of elements (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 18-21)

3. 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 — Word mark Limbic® Map (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 24-28, 35-52)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 23 June 2015 (Case R 1973/2014-1), concerning an application for registration of the word sign Limbic® Map as an EU trade mark.

Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 June 2015 (Case R 1973/2014-1);
Agriculture — EAGGF, EAGF and EAFRD financing — Grant of aid and premiums — Obligation on the Member States to organise an effective system of administrative and on-site inspections — Scope

(Commission Regulations No 796/2004, Art. 27, and No 1975/2006, Art. 14(2))

(see paras 38, 56, 78, 80, 84)
Judgment of the General Court (Ninth Chamber) of 16 February 2017 —

Gruppe Nymphenburg Consult v EUIPO (Limbic® Types)

(Case T‑516/15)

(EU trade mark — Application for the EU word mark Limbic® Types — Lack of distinctive character — Absolute ground for refusal — Article 7(1)(c) of Regulation (EC) No 207/2009)

1. 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 — Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 17, 22, 36)

2. 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 — Concept — Mark composed of a word or neologism resulting from a combination of elements (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 18-21)

3. 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 — Word mark Limbic® Types (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 24-28, 35-52)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 23 June 2015 (Case R 1974/2014-1), concerning an application for registration of the word sign Limbic® Types as an EU trade mark.

Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 June 2015 (Case R 1974/2014-1);
Judgment of the General Court (Fourth Chamber) of 27 June 2017 — Deutsche Post v EUIPO — Media Logistik (PostModern)

(Case T‑13/15)

(EU trade mark — Opposition proceedings — Application for EU word mark PostModern — Earlier national word mark POST and earlier EU word mark Deutsche Post — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Evidence submitted for the first time before the General Court)

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 22, 23, 60)

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. 26)

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 — Likelihood of confusion with the earlier mark — Word mark PostModern — Word marks POST and Deutsche Post (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 27, 29, 30, 55-59, 75, 78)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 28)

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 — Similarity of the marks concerned — Criteria for assessment — Composite mark — Determination of dominant component(s) (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 31-34, 50)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 3 November 2014 (Case R 2063/2013-1), relating to opposition proceedings between Deutsche Post and Media Logistik.

Operative part

The Court:

1. Dismisses the action;
Community designs—Ground for invalidity—Use of a distinctive sign in a subsequent design—Comparison between the design at issue and the distinctive sign

Comparison between the design at issue and the distinctive sign (Council Regulation No 6/2002, Art. 25(1)(e))

(see para. 56)
Acts of the institutions—Statement of reasons—Obligation—Scope—Decision, in the procedure for the award of a public service 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—Obligation to provide a detailed summary as how every detail of the rejected tender was taken into account for assessment purposes, or a detailed comparative analysis of the accepted tender and the unsuccessful tender—None

(European Parliament and Council Regulation No 966/2012, Art. 113(2), first para.; Commission Regulation No 1268/2012, Art. 161(3))

(see paras 27, 28)
European Parliament — Rules on costs and indemnities of MEPs — Parliamentary assistance allowance — Lack of documents to evidence use in accordance with rules — Obligation to repay — Conditions for granting the allowance met at the time of the application — Irrelevant

(Rules governing the payment of expenses and allowances to Members of the European Parliament, Art. 14)

(see paras 64, 65)
Competition — Fines — Amount — Determination — Determination of the basic amount — Gravity of the infringement — Criteria for assessment — Nature of the infringement — Observance of the principle of proportionality

(Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 49(3); Council Regulation No 1/2003, Art. 23(3); Commission notice 2006/C 210/02, points 6, 13 and 23)

(see paras 26-32)
52

It follows that the single plea in law must be upheld and that the contested decision must be annulled. Moreover, in respect of the applicant’s head of claim requesting the Court to refuse the application for registration of the mark applied for in respect of the goods and services in Classes 9 and 41, it must be noted that the jurisdiction of the Court to alter decisions pursuant to Article 65(3) of Regulation No 207/2009 (now Article 72(3) of Regulation 2017/1001) does not have the effect of conferring on the Court the power to carry out an assessment on which the Board of Appeal has not yet adopted a position. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take (judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 72). In that regard, it must be observed that the Board of Appeal based the contested decision solely on the fact that the applicant had not proved that he was the exclusive proprietor of the earlier mark, without examining whether it was not sufficient that he was its co-owner. In those circumstances, it is not for the Court, in the present case, to examine the arguments concerning the acquisition of rights by the applicant in the earlier unregistered mark. The application for alteration of the contested decision presented by the applicant on the basis of that argument must therefore be rejected.
110

The Council, supported by the Commission, takes the view that the condition relating to the existence of damage is not satisfied in the present case. The disputed acts were not penal sanctions imposed on the applicant and were not intended to cause it damage. Their purpose was only to discourage nuclear proliferation. Thus, the applicant was not stigmatised as an organisation which, in itself, constitutes a threat to international peace and security, and had offered no evidence that such is the case. It was merely identified as a person that had facilitated commercial operations connected with nuclear proliferation, which was sufficient to justify its inclusion on the disputed lists. The Council contends that the applicant has not adduced any evidence to prove that it has suffered any non-material damage as a result of the adoption of those acts, as is required by the case-law. There is no evidence that it had a good reputation internationally, that it lost any business as a result of injury to that reputation, or that it had spent money on advertising or other means to restore that reputation. The newspaper article annexed to its application concerning the estimated cost of a global advertising campaign is irrelevant since it relates to a company unrelated to the applicant, in an unrelated branch of business and on a different continent from the applicant and unrelated to the restrictive measures taken by the European Union. The applicant’s claims in the reply provide no evidence of any injury to its reputation, particularly in Iran, and, consequently of any non-material damage linked to that. In addition, the applicant provides no explanation or evidence in support of its claims that restoring its relationship with SWIFT would be costly. In any event, as the ECtHR held in paragraph 22 of the judgment of 19 July 2011, Uj v. Hungary (CE:ECHR:2011:0719JUD002395410), there is a difference between the damage to the commercial reputation of a company and damage to the reputation of an individual concerning his or her social status, with the former being devoid of a moral dimension. The Court itself has referred to that case-law in a case concerning restrictive measures (judgment of 12 February 2015, Akhras v Council, T‑579/11, not published, EU:T:2015:97, paragraph 152). By asking the Court to appoint an expert, by way of a measure of inquiry, the applicant is, it is claimed, attempting to circumvent the fact that the burden of proof falls on the applicant to prove the existence of the damage it alleges and to quantify it. If the Court were to take the view that the European Union’s non-contractual liability has been incurred, it should find, in accordance with the case-law, that the annulment of the disputed acts constitutes adequate compensation for the non-material damage suffered by the applicant. In any event, the amount of EUR 1 million claimed by the applicant by way of compensation for non-material damage is excessive, in view of the case-law, and is unsubstantiated.
Judgment of the General Court (Second Chamber) of 25 January 2017 — Anton Riemerschmid Weinbrennerei und Likörfabrik v EUIPO — Viña y Bodega Botalcura (LITU)

(Case T‑187/16)

(EU trade mark — Opposition proceedings — Application for EU word mark LITU — Relative ground for refusal — No likelihood of confusion — No similarity between the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

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 para. 22)

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 — Word marks LITU and PITU (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23-25, 28-30, 32-34)

3. EU trade mark — Definition and acquisition of the EU trade mark — Assessment of the registrability of a sign — EU rules only taken into account — Decisions of national authorities not binding EU bodies (Council Regulation No 207/2009) (see para. 27)

Re:

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 9 February 2016 (Case R 719/2015-2), relating to opposition proceedings between Anton Riemerschmid Weinbrennerei und Likörfabrik and Viña y Bodega Botalcura.

Operative part

The Court:

1. Dismisses the action;
6.

EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Trade mark made up of several elements—Possible for the competent authority to examine each of the elements making up the trade mark—Need to take account of the overall perception of the combination by the relevant public (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 40)