ddrg/super_eurlex huggingface dataset:
Having regard to the wording of Class 35, the concept of retail service, as interpreted by the Court of Justice in paragraph 34 of the judgment of 7 July 2005, Praktiker, C‑418/02, also includes a shopping arcade’s services in relation to sales. The concept of ‘a variety of services’, as mentioned in that paragraph, must also include the services organised by a shopping arcade in order to retain all the attractiveness and practical advantages of such a place of commerce, in accordance moreover with the actual words used in the wording of Class 35; the aim is to enable the customers interested by the various goods ‘to conveniently view and purchase [them] from a range of stores’ and thereby to increase the number of customers visiting that location interested in purchasing those goods, rather than see those goods purchased from ‘another competitor’ not having its sales outlet in the shopping arcade in question.

The proprietor of the earlier marks, including the word mark BURLINGTON and the word and figurative marks BURLINGTON ARCADE previously registered in the United Kingdom for services in Classes 35, 36 and 41 within the meaning of the Nice Agreement, and the EU figurative mark BURLINGTON ARCADE registered for the same services, has not submitted to the Board of Appeal or the General Court consistent evidence from which it may be concluded that the use of the figurative mark Burlington, whose registration as an EU trade mark for goods in Classes 3, 14, 18 and 25, takes unfair advantage of the distinctive character or the repute of the earlier trade marks.

Even though the applicant stresses the ‘near uniqueness’ of its earlier trade marks and their ‘significant and exclusive’ reputation, it must be found that it has not provided specific evidence capable of substantiating the fact that the use of the mark applied for would make its earlier marks less attractive, in particular in the light of the criteria according to which such deductions must be founded on ‘an analysis of the probabilities and by taking account of the normal practice in the relevant commercial sector as well as all the other circumstances of the case’.

The fact that another economic agent may be authorised to use a mark including the word ‘burlington’, for goods similar to those on sale in the previous proprietor of the earlier trade marks’ London arcade, is not such in itself as to affect, in the eyes of the average consumer, the commercial attractiveness of that place. Such a characteristic is closely connected with the ‘variety of [commercial] services’ performed by the tenants of the shops in that arcade, not solely with the arcade’s name, which is the same moreover — as the Board of Appeal correctly noted in the contested decision — as the names of other also very well-known places near that arcade, such as Burlington Gardens or Burlington House.

(see paras 43-45)
EU trade mark—Surrender, revocation and invalidity—Causes of revocation—Absence of genuine use of a trade mark—Proof of use of the earlier mark—Genuine use—Meaning—Criteria for assessment

(Council Regulation No 207/2009, Arts 15(1)(a) and 51(1)(a); Commission Regulation No 2868/95, Arts 1, Rule 22(3) and (4), and 40(5))

(see paras 33-37)
Judgment of the General Court (Third Chamber) of 28 February 2018 — dm-drogerie markt v EUIPO — Digital Print Group O. Schimek (Foto Paradies)

(Case T‑843/16)

(EU trade mark — Invalidity proceedings — EU word mark Foto Paradies — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001))

1. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Assessment of distinctive character—Criteria (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 15-18, 26)

2. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Marks constituted of advertising slogans—Distinctive character—Application of specific criteria for assessment—Not permissible (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 19, 20)

3. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Word mark Foto Paradies (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 27, 33, 39)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 15 September 2016 (R 1194/2015-1), relating to invalidity proceedings between Digital Print Group O. Schimek and dm-drogerie markt.

Operative part

The Court:

1. Dismisses the action;
EU trade mark—Appeals procedure—Action before the EU judicature—Limitation of the list of products and services after the decision of the Board of Appeal—Consequences

(Rules of Procedure of the General Court, Art. 188; Council Regulation No 207/2009, Art. 43(1))

(see paras 17-20)
EU trade mark—Observations of third parties and opposition—Examination of the opposition—Proof of use of the earlier mark—Genuine use—Meaning—Interpretation taking account of the rationale of Article 42(2) and (3) of Regulation No 207/2009

(Council Regulation No 207/2009, Recital 10 and Art. 42(2) and (3); Commission Regulation No 2868/95, Art. 1, rule 22(3))

(see para. 93)
EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an unregistered trade mark or other sign used in the course of trade—Geographical indications and designations of origin

(Council Regulation No 2081/92, Arts 13 and 14; Council Regulation No 40/94, Art. 142)

(see para. 24)
Judicial proceedings—Introduction of new pleas during the proceedings—Conditions—Pleas based on matters which have come to light in the course of the procedure

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

(see para. 40)
Economic, social and territorial cohesion—Structural assistance—European Union funding—Reduction of financial assistance on account of irregularities—Time limit for adoption of the decision by the Commission—Setting of the time limit according to the regulation in force at the time of the hearing of the Member State concerned by the Commission

(European Parliament and Council Regulation No 1303/2013, Arts 145(6), 152(1) and 154, second para.; Council Regulations No 1260/1999, Art. 39(3), and No 1083/2006, Arts 100(5), 105(1), and 108, second para.)

(see paras 39, 40)
Not being a party to the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, the European Atomic Energy Community, in the absence of any indication to the contrary, cannot be subject to the obligations contained in Regulation No 1367/2006 on the application of the provisions of that convention to Community institutions and bodies.

In that regard, the measures adopted under the EAEC Treaty are not necessarily subject to the obligations applicable within the framework of the European Union. The European Atomic Energy Community and the European Community, now the European Union, are indeed separate organisations established by separate treaties, with separate legal personalities and each subject to specific rules. Thus, the rules applicable within the framework of the European Atomic Energy Community are provided for by the EAEC Treaty. One such rule is Article 106a(1) EA, which, for the functioning of the European Atomic Energy Community, renders applicable certain provisions of the EU and FEU Treaties, in particular Article 15 TFEU, formerly Article 255 EC, which forms the basis of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. Based on a provision applicable to the European Atomic Energy Community, the regulation, which establishes general rules for access to documents of the institutions, is intended to apply without it being disputed by the applicant, to documents held by the institutions and bodies operating in that context.

Finally, Regulation No 1367/2006 refers specifically to the institutions and bodies of the European Community, without contemplating its application to other entities, for example, institutions or bodies under the European Atomic Energy Community.

(see paras 46-48, 50)
Agriculture—Uniform legislation—Protection of geographical indications and designations of origin for agricultural products and foodstuffs—Regulation No 1308/2013—Protection of registered names—Evocation of a protected geographical indication—Meaning—Scope

(European Parliament and Council Regulation No 1308/2013, Arts 99 and 103(2)(b))

(see paras 21, 41, 42)
Judgment of the General Court (Third Chamber) of 8 May 2018 –

Luxottica Group v EUIPO — Chen (BeyBeni)

(Case T‑721/16)

(European Union trade mark — Opposition proceedings — Application for the EU figurative mark BeyBeni — Earlier national figurative mark Ray-Ban — Relative ground for refusal — Detriment to reputation — Article 8(5) of Regulation (EC) No 207/2009 (now Article 8(5) of Regulation (EU) 2017/1001))

1. EU trade mark—Appeals procedure—Appeal brought against a decision of a unit of the Office ruling at first instance and referred to the Board of Appeal—Functional continuity between those two bodies—Examination of the appeal by the Board of Appeal—Scope (Council Regulation No 207/2009, Art. 76) (see para. 19)

2. EU trade mark—Decisions of the Office—Observance of the rights of the defence—Scope of the principle (Council Regulation No 207/2009, Art. 75, second sentence) (see paras 23, 24)

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 enjoying a reputation—Protection of well-known earlier mark extended to dissimilar goods or services—Conditions (Council Regulation No 207/2009, Art. 8(5)) (see para. 34)

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 enjoying a reputation—Protection of well-known earlier mark extended to dissimilar goods or services—Condition—Link between the marks—Criteria for assessment (Council Regulation No 207/2009, Art. 8(5)) (see paras 35, 36)

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 enjoying a reputation—Protection of well-known earlier mark extended to dissimilar goods or services—Conditions—Taking unfair advantage of the distinctive character or repute of the earlier mark—Detriment to the distinctive character or repute of the earlier mark—Relevant public (Council Regulation No 207/2009, Art. 8(5)) (see para. 43)

6. 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 enjoying a reputation—Protection of well-known earlier mark extended to dissimilar goods or services—Figurative marks BeyBeni and Ray-Ban (Council Regulation No 207/2009, Art. 8(5)) (see paras 45, 46, 49, 53, 68, 75, 77, 78, 87-89)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 8 June 2016 (Case R 675/2015-5), relating to opposition proceedings between Luxottica Group and Mr Chen.

Operative part

The Court:

1. The decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 8 June 2016 (Case R 675/2015-5), relating to opposition proceedings between Luxottica Group SpA and Xian Chen, is annulled;
European Parliament—Members—Payment of expenses and allowances—Recovery of sums unduly paid—Power of the Secretary-General of the Parliament

(Decisions of the Bureau of the Parliament concerning implementing measures for the Statute for Members of the European Parliament, Art. 68, and laying down the procedures for implementing Regulation No 2004/2003, Art. 8)

(see paras 49-52)
Judgment of the General Court (Fifth Chamber) of 13 July 2018 –

Pereira v Commission

(Case T‑606/16)

(Civil service — Officials — Non-promotion — 2015 promotion procedure — Decision not to promote the applicant to grade AST 7 — Obligation to state reasons — Comparative merits — Seniority in the grade — Accumulated merits — Manifest errors of assessment)

1. Officials—Promotion—Consideration of comparative merits—Consultation of candidates’ personal files—Consultation of the staff reports in the internal IT system—None—No effect on the proper conduct of the promotion procedure (Staff Regulations of Officials, Art. 45(1)) (see paras 33, 36)

2. Actions brought by officials—Prior administrative complaint—Rejection decision—Substitution of grounds for the contested decision (Staff Regulations of Officials, Arts 45 and 90) (see paras 44, 45)

3. 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 of Officials, Art. 45(1)) (see paras 49, 108, 109)

4. Officials—Promotion—Criteria—Merits—Taking account of seniority in grade—Subsidiary matter—Taking account of consistency of merits over time—Scope (Staff Regulations of Officials, Art. 45(1)) (see para. 62)

5. Officials—Promotion—Complaint by a candidate not promoted—Rejection decision—Obligation to state reasons—Scope (Art. 296 TFEU; Staff Regulations of Officials, Arts 25, second para., 45 and 90(2)) (see paras 76-79, 100)

6. Officials—Promotion—Consideration of comparative merits—Administration’s discretion—Judicial review—Limits (Staff Regulations of Officials, Art. 45(1)) (see paras 107, 110)

Re:

Application brought pursuant to Article 270 TFEU and seeking annulment of the Commission’s decision not to promote the applicant during the 2015 promotion procedure and, so far as necessary, of the decision rejecting his complaint.

Operative part

The Court:

1. Dismisses the action;
It follows that, first, a procedure rule of Parliament can provide for the possibility of penalising members for their comments only in the event that those comments undermine the proper functioning of the Parliament or pose a serious threat to society, such as incitement to violence or racial hatred. Secondly, the power, granted to parliaments, to impose disciplinary sanctions in order to ensure the proper conduct of their business or the protection of certain fundamental rights, principles or freedoms should be reconciled with the need to ensure respect for the freedom of expression of members of parliament.

The freedom of expression of members of parliament must be afforded greater protection in the light of the fundamental importance which Parliament plays in a democratic society. However, while it is true that speech in Parliament enjoys an elevated level of protection, in view of the close nexus between an effective political democracy and the operation of Parliament, the exercise of free speech in Parliament may have to yield on occasions to the legitimate interests of protecting the orderly conduct of parliamentary business as well as the protection of the rights of members of parliament.

Having regard to the particular importance of the freedom of expression of members of parliament and the strict limits on which restrictions may be imposed on that freedom, Rules 11 and 166 of the Rules of Procedure must be interpreted as preventing an MEP from being penalised for comments made in the course of his parliamentary functions, in the absence of exceptionally serious disorder during the session or disruption of the business of Parliament. In addition, both the first line of Rule 11(2) of the Rules of Procedure and Rule 166(2) of those rules cover the ‘conduct’ of MEPs, who must respect certain obligations and not compromise the smooth conduct of parliamentary business or disturb the peace and quiet of Parliament’s premises. By contrast, comments, remarks and speeches are not referred to and are therefore not likely to be subject, as such, to penalties. Lastly, an infringement of the principles set out in Rule 11 of the Rules of Procedure, to which Rule 166(1) thereof refers, if it were established, cannot, of itself, be penalised as such; it can only be penalised where it is accompanied by a disruption of the business of Parliament. It follows that, even if comments made in the course of parliamentary functions could be treated in the same way as conduct and that those comments could, on that basis, constitute an infringement of the principles set out in Rule 11(2) of the Rules of Procedure, they could not be subject to a penalty in the absence of exceptionally serious disorder or disruption of the business of Parliament.

(see paras 63, 65, 66, 68)
Judgment of the General Court (Eighth Chamber) of 19 September 2018 –

HD v Parliament

(Case T‑604/16)

(Civil service — Officials — Remuneration — Family allowances — Household allowance — Education allowance — Dependent child allowance — Conditions for granting — Deduction of an allowance of like nature received from another source — Recovery of undue payments — Decisions to end entitlement to certain allowances — Error of law — Manifest error of assessment)

1. EU institutions — Protection of individuals with regard to the processing of personal data — Regulation No 45/2001 — Processing of personal data — Information obligations in the case of data not collected from the person concerned — Infringement — Impact on the lawfulness of acts adopted on the basis of the data concerned — None (Art. 340 TFEU; European Parliament and Council Regulation No 45/2001, Arts 12(1) and 32) (see paras 70-73)

2. EU budget — Financial regulation — Powers and duties of the authorising officer — Power of the applicant for information from the national authorities — Included (European Parliament and Council Regulation No 966/2012, Art. 66) (see paras 79, 83, 85)

3. Officials — Recovery of undue payments — Conditions — Patent overpayment — Knowledge of the person concerned — Criteria (Staff Regulations of Officials, Arts 67(1)(c) and 85) (see paras 101-109, 113-115, 120)

4. Officials — Remuneration — Family allowances — Education allowance — Conditions for granting — Regular full-time attendance (Staff Regulations of Officials, Annex VII, Art. 3, first para.) (see paras 131-133)

Re:

Application under Article 270 TFEU seeking annulment, first, of the decisions of the Parliament of 21 September, 5 October, 27 November and 15 December 2015 recovering the amounts alleged to have been unduly received by the applicant in respect of the education allowance, secondly, of the decisions of the Parliament of 5, 13, 23 October, of the 5, 11 and 12 November 2015 recovering the amounts alleged to have been unduly received by her in respect of education allowance and dependent child allowance and depriving her of her right to household allowance and, thirdly, ‘in so far as necessary’, of the decision of 21 April 2016 rejecting her complaint.

Operative part

The Court:

1. Dismisses the action;
Judicial proceedings — Introduction of new pleas during the proceedings — Plea raised for the first time at the reply stage — Inadmissibility

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

(see paras 250, 251)
Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Amplification of an existing plea — Admissibility — Analogous solution for claims raised in support of a plea

(Rules of Procedure of the General Court, Arts 76(d) and 84(1))

(see para. 25)
EU law — Principles — Rights of defence — Right to effective judicial protection — Restrictive measures against Syria — Freezing of funds and restrictions on admission of persons, entities or organisations associated with the Syrian regime — Obligation to communicate new inculpatory evidence — Scope

(Charter of Fundamental Rights of the European Union, Arts 41(2), 47 and 52; Council Decisions (CFSP) 2016/850, (CFSP) 2017/917 and (CFSP) 2018/778)

(see paras 51-54, 57)
Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Rule of law intended to confer rights on individuals — Definition — Right to sound administration and duty of diligence — Included — General or individual nature of the act — Irrelevant

(Art. 340, 2nd para. TFEU; Charter of Fundamental Rights of the European Union, Art. 41)

(see paras 39, 41, 47-49)
Common foreign and security policy — Restrictive measures against Syria — Freezing of funds of persons, entities or bodies associated with the Syrian regime — Rights of the defence — Notification of inculpatory evidence — Subsequent decision maintaining the name of the applicant on the list of persons covered by those measures — Prior communication of new reasoning arising from a context known to the person concerned — New inculpatory evidence — None

(Charter of Fundamental Rights of the European Union, Art. 41; Council Decisions (CFSP) 2016/850, (CFSP) 2017/917 and (CFSP) 2018/778)

(see paras 55, 56, 58)
Judgment of the General Court (Eighth Chamber) of 15 June 2022 –

YY and ZA v Court of Justice of the European Union

(Case T‑545/16)

(Civil service – Officials – 2014 reform of the Staff Regulations – Reimbursement of annual travel expenses – Place of origin located in a third country – Flat-rate payment calculated on the basis of the distance separating the place of employment from the capital of the Member State of which the official is a national)

1. Actions brought by officials – Action against a decision rejecting a complaint – Effect – Disputed measure referred to the Court – Exception – Decision not confirmatory in character – Account taken of the reasoning therein (Staff Regulations of Officials, Arts 90 and 91) (see para. 22)

2. Freedom of movement for persons – Workers – Provisions of the Treaty – Scope – Movement of workers between a place of origin outside the EU and a place of employment within the EU – Precluded (Art. 45 TFEU) (see paras 32-36)

3. Officials – Reimbursement of expenses – Annual travel expenses – Conditions and procedures – Officials with their place of origin outside the EU – Calculation of travel expenses on the basis of the distance separating their place of employment from the capital of the Member State of which they are a national – Discrimination on grounds of nationality – None – Breach of principle of proportionality – None (Staff Regulations of Officials, as amended by Regulation No 1023/2013, Annex VII, Art. 8(2), second subpara.) (see paras 38-41, 47-54, 56, 59-63)

4. Acts of the institutions – Temporal application – Immediate application of the new rule to the future effects of a situation which arose under the old rule – Adoption of Regulation No 1023/2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants – Infringement of acquired rights – None (Staff Regulations of Officials, as amended by Regulation No 1023/2013, Annexes V, Art. 7, and VII, Art. 8) (see paras 64-66)

5. Officials – Reimbursement of expenses – Annual travel expenses – Conditions and procedures – Amendment of Staff Regulations leading to a reduction of annual travel expenses – Breach of principle of the protection of legitimate expectation – None (Staff Regulations of Officials, as amended by Regulation No 1023/2013, Annex VII, Art. 8) (see paras 67-71)

Operative part

The Court:

1. Dismisses the action;

2. Order YY and ZA to bear their own costs and to pay those incurred by the Court of Justice of the European Union;
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 38-42, 45, 47, 108)