ddrg/super_eurlex huggingface dataset:
Case T‑667/15

Bagni Delfino di Paperini Stefano & C. Sas

v

European Commission

‛Action for annulment — Communication from a member of the Commission in answer to a parliamentary question — Act not open to review — Manifest inadmissibility’

Summary — Order of the General Court (Second Chamber), 15 September 2016

Actions for annulment — Actionable measures — Definition — Measures producing binding legal effects — Communication from a member of the Commission in answer to a parliamentary question — Not included

(Art. 263 TFEU)

A Commission communication in the form of a written response to a parliamentary question seeking to obtain clarification as to the interpretation of the concept of ‘services’, within the meaning of Directive 2006/123 on services in the internal market, in the light of a judgment of a national court, is not in any way intended to produce binding legal effects, within the meaning of Article 263 TFEU. In that communication, the Commission took the view that it was unable to comment, since the national judgment in question did not relate to the application of EU law and was concerned only with national legislation.

Having regard to both the context, constituted by the parliamentary question, and the content and wording of that communication, it constitutes a reply to a parliamentary question which does not express any decision adopted by the Commission or, indeed, any opinion regarding the interpretation of Directive 2006/123.

Moreover, an annulment action does not lie either against an act of the Commission which reflects its intention to follow a particular line of conduct or against a simple written expression of opinion, such as reiteration by the Commission of its interpretation of the provisions of a secondary legislative act, since it is not capable of producing legal effects and is also not intended to produce such effects. In that context, even if the said communication sets out the interpretation by the Commission of Directive 2006/123, that communication would still not be intended to produce binding legal effects.

(see paras 12, 13, 16)
Officials — Notice of open competition — Languages of participation in tests — Limitation of the choice of second language — Discrimination based on language — Justification based on the interests of the service that new recruits be immediately operational — Unlawful

(Staff Regulations of Officials, Arts 1d and 28(f) and Annex III, Art. 1(1)(f); Council Regulation No 1, Art. 1)

(see paras 54-57, 63-65, 70, 105)
Order of the General Court (Sixth Chamber) of 28 November 2016 – Matratzen Concord v EUIPO (Ganz schön ausgeschlafen)

(Case T‑225/16)

(EU trade mark — Application for EU word mark Ganz schön ausgeschlafen — Mark consisting of an advertising slogan — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Action manifestly unfounded in law)

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—Aim—Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 16)

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 (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 17-19, 31)

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

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 (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 22)

5. 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 Ganz schön ausgeschlafen (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 24, 25, 28, 29)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 24 February 2016 (Case R 1234/2015-1) concerning an application for registration of the word mark Ganz schön ausgeschlafen as an EU trade mark.

Operative part

1. The action is dismissed.
Order of the General Court (Seventh Chamber) of 11 January 2017 —

Aydin v EUIPO — Kaporal Groupe (ROYAL & CAPORAL)

(Case T‑95/16)

(EU trade mark — Opposition proceedings — Application for EU word mark ROYAL & CAPORAL — Earlier EU word mark KAPORAL — Subsidiary action — Subject-matter of the action — No interest in bringing proceedings — Inadmissibility)

1. EU trade mark—Appeals procedure—Persons entitled to appeal and to be parties to the proceedings—Persons whose claims not upheld by a decision—Decision upholding an opposition to registration of a trade mark, based on the existence of the likelihood of confusion with an earlier mark, without recognising the latter as having enhanced distinctiveness—No interest in bringing proceedings—Inadmissibility (Council Regulation No 207/2009, Art. 65(4)) (see paras 29-34)

2. EU trade mark—Appeals procedure—Action before the EU judicature—Jurisdiction of the General Court—Declaratory judgments—Precluded (Council Regulation No 207/2009, Art. 65(3)) (see para. 43)

3. EU trade mark—Appeals procedure—Action before the EU judicature—Power of the General Court to alter the contested decision—Limits (Council Regulation No 207/2009, Art. 65(3)) (see para. 45)

Re:

First, action against the decision of the Second Board of Appeal of EUIPO of 11 December 2015 (Case R 867/2015-4), concerning opposition proceedings between Kaporal Groupe and Mr Aydin, and, second, subsidiary action against the same decision inasmuch as the Board of Appeal refused to take account of certain evidence produced by Kaporal Groupe and, as to the remainder, confirm the latter.

Operative part

1. The subsidiary action is dismissed as inadmissible.
Order of the General Court (Sixth Chamber) of 18 October 2016 —

Laboratoire de la mer v EUIPO — Boehringer Ingelheim Pharma (RESPIMER)

(Case T‑109/16)

‛EU trade mark — Opposition proceedings — Application for EU word mark RESPIMER — Earlier EU word mark RESPIMAT — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Action manifestly lacking any foundation in law’

1. 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. 19)

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 RESPIMER and RESPIMAT (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 24, 26, 27, 37-41, 46, 47)

3. EU trade mark — Appeals procedure — Action before the EU judicature — Application initiating proceedings — Formal requirements — Pleas in law not set out in the application — General reference to other documents — Inadmissibility (Rules of Procedure of the General Court, Art. 76(d)) (see para. 28)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 21 January 2016 (Case R 3109/2014-5), relating to opposition proceedings between Boehringer Ingelheim Pharma and Laboratoire de la mer.

Operative part

1. The action is dismissed.
Order of the General Court (First Chamber) of 26 June 2017 —

L’Oréal v EUIPO — Guinot (MASTER DUO)

(Case T‑182/16)

(EU trade mark — Opposition proceedings — Application for EU word mark MASTER DUO — Prior national figurative mark MASTERS COLORS PARIS — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Action manifestly unfounded in law — Article 126 of the Rules of Procedure)

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 18, 19)

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 mark MASTER DUO and figurative mark MASTERS COLORS PARIS (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 20, 29, 36, 39, 40, 45, 48, 57, 58)

3. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services—Similarity of the marks concerned—Criteria for assessment—Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 22, 27, 54)

4. EU trade mark—Procedural provisions—Examination of the facts of the Office’s own motion—Opposition proceedings—Examination restricted to the submissions of the parties—Well-known facts taken into account (Council Regulation No 207/2009, Art. 76(1)) (see para. 44)

5. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services—Likelihood of confusion with the earlier mark—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—Make-up industry (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 51, 52)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 23 February 2016 (Case R 2916/2014-5) concerning opposition proceedings between Guinot and L’Oréal.

Operative part

1. The action is dismissed.
Application for interim measures—Suspension of operation of a measure—Interim measures—Conditions for granting—Prima facie case—Urgency—Serious and irreparable damage—Cumulative nature—Order of examination and method of verification—Discretion of the court hearing the application for interim relief—Balancing of all the interests involved

(Arts 256(1) TFEU, 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 156)

(see paras 31-34)
Judicial proceedings—Application initiating proceedings—Formal requirements—Conditions relating to a signatory—Status of a third party in relation to the parties—Independent interpretation

(Statute of the Court of Justice, Art. 19, third and fourth paras; Rules of Procedure of the General Court, Art. 51(2) and (3))

(see paras 14-17)
Judicial proceedings—Application initiating proceedings—Formal requirements—Identification of the subject-matter of the dispute—Brief summary of the pleas in law on which the application is based—Similar requirements for submissions made in support of a plea

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

(see paras 43, 44)
Actions for damages—Limitation period—Point from which time starts to run—Liability for an individual measure—Date of appearance of the prejudicial effects of the act—Application in the event of an action for the lost profits of an unsuccessful tenderer in a public procurement procedure

(Art. 340, second para., TFEU; Statute of the Court of Justice, Arts 46 and 53, first para.)

(see paras 24, 25, 30)
Order of the General Court (Second Chamber) of 22 November 2017 — Digital Rights Ireland v Commission

(Case T‑670/16)

(Action for annulment — Area of freedom, justice and security — Protection of natural persons with regard to the processing of personal data — Transfer of personal data to the United States — Not-for-profit company incorporated under Irish law — No protection of personal data for legal persons — Controller — Action in the name of members and supporters — Action in the public interest — Inadmissible)

1. Actions for annulment—Natural or legal persons—Interest in bringing proceedings—Need for an actual and current interest—Assessment at the time when the action was lodged—Action capable of securing a benefit for the applicant—None—Inadmissibility (Art. 263, para. 4, TFEU; Commission Decision 2016/1250) (see paras 19, 20, 26-28, 36, 37, 41, 42)

2. Fundamental rights—Protection of personal data—Article 8 of the Charter of Fundamental Rights of the European Union—Scope—Information relating to an identified or identifiable natural person—Legal person with a legal name not identifying any natural person—Not included (Charter of Fundamental Rights of the European Union, Art. 8) (see paras 25, 26)

3. Actions for annulment—Natural or legal persons—Measures of direct and individual concern to them—Action brought by a legal person not being an association, not representing the interests of its members and supporters and not being in the general public interest—Inadmissibility (Art. 263, fourth para., TFEU; Commission Decision 2016/1250) (see paras 45-50)

Re:

APPLICATION based on Article 263 TFEU and seeking annulment of Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-U.S. Privacy Shield (OJ 2016 L 207, p. 1).

Operative part

1. The action is inadmissible.

2. There is no longer any need to adjudicate on the applications to intervene of the Czech Republic, the Federal Republic of Germany, Ireland, the United Kingdom of Great Britain and Northern Ireland, the United States of America, the Kingdom of the Netherlands, the French Republic, Business Software Alliance (BSA), Microsoft Corporation, La Quadrature du Net, French Data Network, Fédération des Fournisseurs d’Accès à Internet Associatifs and the Union fédérale des consommateurs — Que choisir (UFC — Que choisir).

3. Digital Rights Ireland Ltd shall pay the costs, with the exception of those relating to the applications to intervene.
Order of the General Court of 15 February 2019 –

Aresu v Commission

(Case T‑524/16 R)

(Interim measures — Civil Service — Officials — Reform of the Staff Regulations of 1 January 2014 — Reduced number of days of annual leave — Replacement of travelling time by home leave — Application for interim measures — No urgency)

1. Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Prima facie case — Urgency — Serious and irreparable damage — Cumulative nature — Order of examination and method of verification — Discretion of the court hearing the application for interim relief — Balancing of all the interests involved (Art. 256(1), Arts 278 and 279 TFEU; Rules of Procedure of the General Court, Art. 156(4)) (see paras 19-22)

2. Application for interim measures — Suspension of operation of a measure — Interim measures — Conditions for granting — Urgency — Serious and irreparable damage — Burden of proof — Purely hypothetical damage based on the happening of future and uncertain events — Insufficient to demonstrate urgency (Arts 278 and 279 TFEU) (see paras 32, 33)

Re:

Application based on Articles 278 and 279 TFEU seeking, first, the suspension of operation of the decision reducing the number of the applicant’s additional leave days from five to two and a half days, on the basis of Article 7 of Annex V to the Staff Regulations of Officials of the European Union, as amended by Regulation (EU, Euratom) No 1023/2013 of the Parliament and of the Council of 22 October 2013 (OJ 2013 L 287, p. 15), and, secondly, the adoption of interim measures to enable the applicant to continue to benefit, on a provisional basis, from the same number of additional leave days that he enjoyed, in the form of travelling time, before 1 January 2014, with retroactive effect from 1 January 2014 until the decision in the main proceedings is delivered or, if prior to the delivery of that decision, until the retirement date of the applicant.

Operative part

1. The application for interim measures is dismissed.
Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Clear and precise statement of the pleas relied on

(Rules of Procedure of the Civil Service Tribunal, Art. 50(1)(e))

(see paras 42, 43)
42

Third and last, mention must be made of the litigation relating to access to documents. As regards the protection of documents that are alleged to be confidential, the judge hearing an application for interim measures has taken care to observe that, even where it could not be established that the harm invoked was irreparable, the fact that his jurisdiction is ancillary and therefore limited, and that the procedure for interim measures is ancillary and provisional in relation to the main proceedings, precluded the possibility of his authorising the disclosure of certain individual items of information contained in those documents, when it could not be ruled out that the court hearing the substance of the case would prefer, for its part, to examine whether the documents at issue should, by reason of their very nature, be covered by a general presumption of confidentiality, a presumption which would exempt those documents from the obligation of partial disclosure. As a general rule, the judge hearing an application for interim measures, given his purely ancillary powers, cannot therefore authorise partial access, without depriving of practical effect such a judgment of the court hearing the substance of the case. However, since those considerations relating to the nature of the interim measures procedure are determinative of the final outcome of that procedure as such, they cannot be applied solely to the questions of the existence of a prima facie case and the weighing of interests, but must also enable the judge hearing the application for interim measures to apply directly, when appropriate, Articles 278 and 279 TFEU, which are provisions of primary law, which authorise an order for the suspension of operation of a measure if he considers ‘that circumstances so require’ and to prescribe interim measures that are ‘necessary’ (see, to that effect, orders of 25 July 2014 in Deza v ECHA, T‑189/14 R, not published, EU:T:2014:686, paragraphs 99 to 101, 104 and 105, and 1 September 2015 in Pari Pharma v EMA, T‑235/15 R, EU:T:2015:587, paragraphs 104 to 106, 109 and 110).
46

In the light of the foregoing, it follows that all the consequences connected to the combination of the two series of events described in paragraphs 31 and 32 above, even had it been shown that they were certain, far from covering a period of 15 years, would in fact be limited to the period preceding the date of delivery of the judgment of the General Court closing the main proceedings. In that regard, firstly, it is appropriate to note that, although the Republic of Poland did not find it appropriate to make an application for expedited procedure in respect of its main action, it is not excluded that the General Court may decide of its own motion to rule in that case in accordance with such a procedure, by virtue of Article 151(2) of the Rules of Procedure. Failing that, it is always possible, if the circumstances so require, to decide to rule in that case as a priority, in accordance with Article 67(2) of those Rules. Secondly, in its observations on the statement of the Federal Republic of Germany, the Republic of Poland points out that the harm to it results above all from the possible changes in the gas transit routes to the European Union. As it has been pointed out in paragraphs 35 and 36 above, not only legal documents which are currently in force form an obstacle to the materialisation of that theory until at least 2020, but, in addition, the existence of specific legal remedies, including the possibility of applying to the judge hearing applications for interim measures on the basis of new facts, guarantees the Republic of Poland effective legal protection in the event of infringement of those instruments. Accordingly, only the hypothesis described in paragraph 31 above, envisaged by the Republic of Poland, could potentially materialise during the period preceding the delivery of the judgment of the General Court closing the main proceedings. That hypothesis, consisting of the use of 90% of the transport capacities of the OPAL pipeline by Gazprom, cannot of itself cause the harm alleged by the Republic of Poland, namely the threat to the security of the gas supply in Poland. Consequently, although the effects of that hypothesis would be irreversible, the requirement that the existence, justifying the adoption of the interim measures sought, of a serious and irreparable harm to the Republic of Poland be demonstrated, has not been satisfied.
40

That finding cannot be called into question by the applicant’s argument that the extension of time on account of distance is not applicable in the present case, on the ground that the principle of equal treatment requires that Article 73(3) of the Rules of Procedure, which states that that period is not applicable where the lodging of the original act is preceded by sending it to the Registry by telefax, should be applied by analogy to the lodging of a document by way of the e-Curia application. Contrary to the applicant’s argument, the single extension of on account of distance of 10 days provided for by Article 60 of the Rules of Procedure applies to all the procedural time limits laid down by the Treaties, the Statute of the Court of Justice of the European Union and the Rules of Procedure, irrespective of the method of lodging the procedural document (paper version or by means of the e-Curia application). In the absence of any indications to the contrary in the Rules of Procedure concerning the lodging of an act through the e-Curia application, it must be stated that the extension on account of distance of 10 days laid down by Article 60 of the Rules of Procedure applies to the lodging of a plea of inadmissibility via the e-Curia application (see, to that effect, order of 23 March 2017, Gollnisch v Parliament, T‑624/16, not published, EU:T:2017:243, paragraphs 32 and 33).
Application for interim measures—Suspension of operation of a measure—Interim measures—Conditions for granting—Prima facie case—Urgency—Serious and irreparable damage—Cumulative nature—Order of examination and method of verification—Discretion of the court hearing the application for interim relief—Balancing of all the interests involved

(Arts 256(1) TFEU, 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 156(4), first sentence)

(see paras 15-18)