ddrg/super_eurlex huggingface dataset:
Judgment of the Court of First Instance (Seventh Chamber) of 23 September 2009 – Spain v Commission

(Case T-341/05)

Agriculture – Common organisation of the market in milk and milk products – Abolition of export refunds for all milk products to Ceuta and Melilla – Conditions – Principle of non-discrimination – Proportionality

Agriculture – Common organisation of the markets – Milk and milk products – Export refunds (Art. 34(2), second para., EC; Council Regulation No 1255/1999, Art. 31(2)(c) and (3); Commission Regulation No 909/2005) (see paras 21, 38, 48-49, 69, 72, 74, 94-96)

Re:

APPLICATION for annulment of Commission Regulation (EC) No 909/2005 of 16 June 2005 fixing the export refunds on milk and milk products (OJ 2005 L 154, p. 10), in so far as its Annex includes Ceuta and Mellila among the destinations grouped together under the destination L 01.

Operative part

The Court:

1. Annuls Commission Regulation (EC) No 909/2005 of 16 June 2005 fixing the export refunds on milk and milk products, in so far as it mentions Ceuta et Melilla among the destinations grouped together under the destination L 01;
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Summary



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Approximation of laws – Article 95 EC – Approval procedure for derogating national provisions

(Art. 95(5) EC)

Summary

In order to introduce derogating national provisions on matters in respect of which a Community harmonisation measure has already been adopted, a Member State must, under Article 95(5) EC, be able to show that the national measures are based on new scientific evidence and respond to a problem which is specific to that State and which has appeared after the harmonisation measure’s adoption. That provision applies, in particular, to cases where a new phenomenon arises in all or part of a Member State’s territory, which has negative effects on the environment or the working environment and which could not be taken into account in the preparation of the harmonised rules and to which it is appropriate to apply a remedy at the outset at the national level, without waiting for an amendment to the Community legislation. Such an amendment could in fact be unsuitable to resolve the problem established, either because of the purely local nature of the phenomenon, or because of the particular characteristics which it exhibits locally and which are incompatible with the delays inherent in the negotiation and entry into force of new harmonised rules.

By referring to the case of a problem specific to a Member State which has arisen after the adoption of a Community harmonisation measure, Article 95(5) EC therefore excludes the possibility of national provisions being introduced based upon it which derogate from harmonised rules in order to deal with a general environmental danger in the Community. Any problem which arises in terms which are on the whole comparable throughout the Member States and which lends itself, therefore, to harmonised solutions at Community level is general in nature and is, consequently, not specific within the meaning of Article 95(5) EC.

It is therefore necessary, in order correctly to interpret Article 95(5) EC, to envisage the requirement of national specificity of a problem essentially from the angle of the aptness or inaptness of the harmonisation of the applicable Community rules to confront adequately the difficulties encountered locally, since the established inaptness of those rules justifies the introduction of national measures.

(see paras 59, 61-64)
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Subject of the case

Operative part



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Community trade mark

–

Definition and acquisition of the Community 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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 43, 47-48

)

Subject of the case

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 31 January 2006 (Case R 92/2004-4) on opposition proceedings between Demp BV and BAU HOW GmbH.

Information relating to the case

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Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Demp BV to pay the costs.
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Subject of the case

Operative part



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Community trade mark

–

Definition and acquisition of the Community 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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 71-72, 82

)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 17 January 2006 (Case R 263/2005-1) relating to opposition proceedings between Bodegas Roda SA and Castell del Remei SL.

Information relating to the case

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Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders the applicant to pay the costs.
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1. State aid – Prohibition – Exceptions – Scope – Restrictive interpretation – Economic disadvantages caused directly by natural disasters or other exceptional occurrences

(Art. 87(2)(b) EC)

2. State aid – Commission decision – Judicial review – Limits

(Arts 88(3) EC and 230 EC)

Summary

1. Since Article 87(2)(b) EC is an exception to the general principle, stated in Article 87(1) EC, that State aid is incompatible with the common market, it must be interpreted narrowly. Therefore, only damage caused by natural disasters or exceptional occurrences may be compensated for under that provision. There must be a direct link between the damage caused by the exceptional occurrence and the State aid and as precise an assessment as possible must be made of the damage suffered. It therefore follows that where an aid measure satisfies those conditions it must be declared compatible with the common market, even if the Commission adopted a different position in the context of an earlier notice concerning the measure in question. Accordingly, even if, in accordance with that communication, any compensation paid under Article 87(2)(b) EC must concern costs incurred during a defined period, aid compensating loss which arose after that period but having a direct causal connection with the exceptional occurrence concerned and being accurately evaluated must be held to be compatible with the common market.

(see paras 52-53)

2. The lawfulness of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted. No one, therefore, can rely before the Community judicature on matters of fact which were not put forward in the course of the pre-litigation procedure laid down in Article 88 EC.

(see para. 55)
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Subject of the case

Operative part



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Community trade mark

–

Observations of third parties and opposition

–

Examination of the opposition

–

Proof of use of the earlier mark

–

Genuine use (Council Regulation No 40/94, Art. 43(2) and (3) (see paras 38-44

)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 30 January 2006 (Case R 329/2005-1) relating to opposition proceedings between Cuadrado, SA and Sonia Rykiel création et diffusion de modèles.

Information relating to the case

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Operative part

Operative part

The Court:

1. Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 January 2006 (Case R 329/2005-1);

2. Orders OHIM to pay the costs.
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Community trade mark – Surrender, revocation and invalidity – Relative grounds of invalidity

(Council Regulation No 40/94, Arts 8(1)(b) and 52(1)(a))

Summary

The word mark O STORE should not have been registered as a Community trade mark in respect of ‘Retail and wholesale services, including on-line retail store services’ and services of ‘retail and wholesale of clothing, headwear, footwear, athletic bags, backpacks and knapsacks, and wallets’ falling within Class 35 of the Nice Agreement, because of the existence of the relative ground for refusal referred to in Article 8(1)(b) of Regulation No 40/94 on the Community trade mark, in so far as there is on French territory, for the average consumer, a likelihood of confusion within the meaning of that article between the trade mark O STORE and the word mark THE O STORE, registered previously in France in respect of goods falling within Classes 18 and 25 of that Agreement.

Although the nature, purpose and method of use of the services of ‘retail and wholesale of clothing, headwear, footwear, athletic bags, backpacks and knapsacks and wallets’ covered by the contested Community trade mark, on the one hand, and of goods covered by the earlier trade mark, that is ‘clothing, headwear, footwear, rucksacks, all-purpose sports bags, travelling bags, wallets’, on the other, differ, it is indisputable that those services and goods display similarities, having regard to the fact that they are complementary and that those services are generally offered in the same places as those where the goods are offered for sale. Also, on account of the very general wording, the ‘Retail and wholesale services, including on-line retail store services’ can include all goods, including those covered by the earlier mark. Therefore, those services display similarities to the goods concerned. In addition, the signs in dispute are very similar since they contain the identical element ‘o store’, the only difference being the omission, in the contested Community trade mark, of the non-distinctive article ‘the’.

It cannot be excluded that the goods in question are sold in the same sales outlets as those in which the retail services are offered; that could in particular be the case if the goods covered by the trade mark THE O STORE are sold by means of O STORE services covered by the contested Community trade mark, thereby creating a likelihood of confusion in consumers’ minds. Even supposing that the goods covered by the earlier trade mark THE O STORE are not sold by means of the O STORE services covered by the contested Community trade mark, the relevant public, when presented with retail services, concerning clothes or shoes in particular, and covered by the trade mark O STORE, could believe that those services are offered by the same undertaking as that which sells those same goods under the trade mark THE O STORE or by a related undertaking.

(see paras 45, 47, 57, 61, 71, 74-75)
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Subject of the case

Operative part



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Agriculture – Common organisation of the markets – Fruit and vegetables – Producers’ organisations (Council Regulations No 2988/95, Art. 2(1), and No 2200/96, Art. 13(2)) (see paras 39-47)

2. Agriculture – Common organisation of the markets – Fruit and vegetables –Regulation No 2200/96 (Council Regulation No 2200/96, Art. 30(1) and (2); Commission Regulation No 659/97, Art. 17(2)) (see paras 57-61)

3. Agriculture – EAGGF – Clearance of accounts – Disallowance of expenditure arising from irregularities in the application of the Community rules (see para. 65)

4. Agriculture – Common agricultural policy – EAGGF financing – Accounts clearance procedure – Conciliation procedure – Opinion of the conciliation body (see para. 68)

5. Agriculture – EAGGF – Granting of assistance and premiums – Obligation on Member States to organise an efficient system of administrative and on‑the‑spot controls (see para. 160)

6. Agriculture – Common agricultural policy – EAGGF financing – Principles – Refusal to finance irregular expenses (see paras 181-184)

7. Agriculture – EAGGF – Granting of assistance and premiums – Obligation on Member States to organise an efficient system of administrative and on‑the‑spot controls – Scope (Commission Regulation No 3887/92, Art. 6(1)) (see para. 195)

Subject of the case

Re:

APPLICATION for partial annulment of Commission Decision 2006/334/EC of 28 April 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2006 L 124, p. 21) in so far as it excludes certain expenditure incurred by the Italian Republic in the sectors of fruit and vegetables, milk and dairy products, arable farming, rural development as well as concerning payment deadlines.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders the Italian Republic to pay the costs.
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Subject of the case

Operative part



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Community trade mark

–

Definition and acquisition of the Community 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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 20, 33

)

Subject of the case

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 21 June 2006 (Joined Cases R 107/2005-2 and R 187/2005-2), concerning opposition proceedings between WHG Westdeutsche Handelsgesellschaft mbH and Giorgio Beverly Hills, Inc.

Information relating to the case

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Operative part

Operative part

The Court:

1. Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 21 June 2006 (Cases R 107/2005-2 and R 187/2005-2) in so far as it dismissed the appeal in Case R 187/2005-2;

2. Orders OHIM to bear its own costs and to pay those incurred by Giorgio Beverly Hills, Inc. during the proceedings before the Court of First Instance;

3. Orders WHG Westdeutsche Handelsgesellschaft mbH to bear its own costs and to pay those incurred by Giorgio Beverly Hills for the purposes of the proceedings before the Board of Appeal of OHIM.
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Subject of the case

Operative part



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Community trade mark

–

Surrender, revocation and invalidity

–

Absolute grounds of invalidity (Council Regulation No 40/94, Arts 7(1)(b) to (d) and 51(1)(a)) (see paras 31-41, 48, 53-55

)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 3 February 2006 (Case R 150/2005-1), relating to invalidity proceedings between TIM The International Music Company AG and TTV Tonträger-Vertrieb-2000 GmbH, on the one hand, and Past Perfect Ltd, on the other.

Information relating to the case

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Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders TIM The International Music Company AG and TTV Tonträger-Vertrieb-2000 GmbH to pay the costs.
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Subject of the case

Operative part



Keywords

Community trade mark

–

Definition and acquisition of the Community 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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 29, 42-43, 47

)

Subject of the case

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 20 September 2006 (Case R 29/2006-1) concerning opposition proceedings between Ercros, SA and Degussa GmbH.

Information relating to the case

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Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders Ercros, SA to pay the costs.
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Subject of the case

Operative part



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Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Single economic entity – Criteria for assessment (Arts 81 EC and 82 EC) (see paras 58-59, 61-62, 82)

2. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Horizontal cartel concerning prices (Council Regulation No 17, Art. 15(2); Commission Notice No 98/C 9/03, point 1 A) (see paras 102-107)

3. Competition – Fines – Amount – Determination – Criteria – Need to differentiate between the undertakings involved in the same infringement by reference to their overall turnover – None (Council Regulation No 1/2003, Art. 23(2); Commission Notice No 98/C 9/03, point 1 A, sixth para.) (see paras 110-112)

4. Competition – Fines – Amount – Determination – Turnover to be taken into account in calculating the fine (Council Regulation No 1/2003, Art. 23(2); Commission Notice No 98/C 9/03, point 1 A, sixth para.) (see para. 113)

5. Competition – Fines – Assessment by reference to the individual conduct of the undertaking – Irrelevant that another operator not penalised – (Council Regulation No 1/2003, Arts 7 and 23) (see paras 117-118)

6. Competition – Fines – Amount – Determination – Criteria – Assessment of the degree of cooperation provided by each of the undertakings during the administrative procedure (Council Regulation No 1/2003, Art. 23(2); Commission Notice No 2002/C 45/03, title B) (see paras 146-147, 150, 154‑155)

Subject of the case

Re:

APPLICATION for partial annulment of Commission Decision 2006/902/EC of 21 December 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Flexsys NV, Bayer AG, Crompton Manufacturing Company Inc. (former Uniroyal Chemical Company Inc.), Crompton Europe Ltd, Chemtura Corporation (former Crompton Corporation), General Química SA, Repsol Química SA and Repsol YPF SA (Case No COMP/F/C.38.443 — Rubber chemicals) (OJ 2006 L 353, p. 50), and, alternatively, the reduction of the fine imposed on the applicants.

Operative part

Operative part

The Court:

1. Dismisses the action;

2. Orders General Química, SA, Repsol Química, SA and Repsol YPF, SA to bear their own costs and pay the Commission’s costs.
Judgment of the Court of First Instance (Seventh Chamber) of 16 September 2009 — Hipp & Co v OHIM — Laboratorios Ordesa (Bebimil)

(Case T-221/06)

‛Community trade mark — Opposition procedure — Application for Community word mark Bebimil — Earlier Community and national word marks BLEMIL — Earlier national word mark BLEMIL 1 — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) — Likelihood of confusion’

Community trade mark — Definition and acquisition of the Community 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 (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 39-42, 70-74)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 2 June 2006 (Case R 571/2005-1), relating to opposition proceedings between Laboratorios Ordesa, SL and Hipp & Co. KG.

Information relating to the case

Applicant for the Community trade mark: Hipp & Co. KG Community trade mark sought: Community word mark Bebimil for goods in Classes 5, 29, 30 and 32 Proprietor of the mark or sign cited in the opposition proceedings: Laboratorios Ordesa, SL Mark or sign cited in opposition: Community word mark BLEMIL for goods in Classes 5 and 29 and national word marks BLEMIL and BLEMIL 1 Decision of the Opposition Division: Opposition partially upheld Decision of the Board of Appeal: Appeal dismissed

Operative part

The Court:

1. Dismisses the action;
Judgment of the Court of First Instance (Seventh Chamber) of 6 October 2009 — Germany v Commission

(Case T-21/06)

‛State aid — Digital terrestrial television — Aid granted by the German authorities to broadcasters which use the digital terrestrial television network (DVB-T) in Berlin-Brandenburg — Decision declaring the aid incompatible with the common market and ordering its recovery — Principles of sound administration and proportionality — Rights of the defence’

1. State aid — Prohibition — Exceptions — Discretion of the Commission — Judicial review — Limits — Possibility of adopting guidelines (Art. 87(3) EC) (see paras 50, 51)

2. State aid — Examination by the Commission — Discretion of the Commission — Principle of sound administration — Rights of the defence (see paras 77-79)

Re:

APPLICATION for annulment of Commission Decision 2006/513/EC of 9 November 2005 on the State Aid which the Federal Republic of Germany has implemented for the introduction of digital terrestrial television (DVB-T) in Berlin-Brandenburg (OJ 2006 L 200, p. 14).

Operative part

The Court:

1. Dismisses the action;
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Subject of the case

Operative part



Keywords

Procedure – 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 – Action seeking compensation for damage caused by an EU institution – No indications as to the character and extent of the damage and the causal link – Inadmissibility (Rules of Procedure of the General Court, Art. 44(1)(c)) (see paras 30-32)

2. European Communities’ public procurement – Tender procedure – Determination of the time allowed for the submission of requests for additional information – Time-limit for receipt of tenders not taken into account – Irregularity of the pre-litigation procedure – Effects – Annulment of the contested decision – Conditions – Burden of proof (see paras 61-68)

3. European Communities’ public procurement – Tender procedure – Obligation to comply with the principle of equal treatment of tenderers – No necessity to neutralise absolutely all the advantages of the contracting tenderer in place (see paras 74-77)

4. European Communities’ public procurement – Conclusion of a contract following a call for tenders – Discretion of the institutions – Judicial review – Limits (see paras 180, 195)

Subject of the case

Re:

APPLICATION for (i) annulment of the Commission’s decision of 19 June 2006 not to select the tender submitted by the consortium formed by the applicant and other companies in connection with a call for tenders for specification, development, maintenance and support of customs IT services relating to IT projects ‘CUST-DEV’ and to award the contract to another tenderer and (ii) damages.

Operative part

The Court:

1. Dismisses the action;

2. Orders Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to bear its own costs and to pay those incurred by the European Commission.