Rochem Group v EUIPO - Rochem Marine (R.T.S. ROCHEM Technical Services) (EU trade mark - Judgment) [2023] EUECJ T-546/21 (26 April 2023)

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(EU trade mark – Invalidity proceedings – EU figurative mark R.T.S. ROCHEM Technical Services – Earlier national figurative mark ROCHEM MARINE – Relative ground for invalidity – Proof of genuine use of the earlier mark – Articles 15 and 57(2) of Regulation (EC) No 207/2009 (now Articles 18 and 64(2) of Regulation (EU) 2017/1001))

Rochem Group AG, established in Zug (Switzerland), represented by K. Guridi Sedlak, lawyer,

European Union Intellectual Property Office (EUIPO), represented by D. Walicka, acting as Agent,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Rochem Marine Srl, established in Genoa (Italy), represented by R. Gioia and L. Mansi, lawyers,

having regard to the written part of the procedure, in particular the decision of 8 October 2021 rejecting the applicant’s request for a stay of proceedings,

1 By its action under Article 263 TFEU, the applicant, Rochem Group AG, seeks the annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 28 June 2021 (Case R 1544/2019-1) (‘the contested decision’).

2 On 7 November 2013, the German company R.T.S. ROCHEM Technical Services GmbH filed an application for registration of an EU mark with EUIPO pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).

4 The goods and services in respect of which registration was sought are in Classes 1, 2, 3, 11, 37, 40 and 42 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended.

5 On 16 May 2014, EUIPO granted the request for recordal of the change of ownership of the trade mark application from R.T.S. Rochem Technical Services GmbH to the applicant.

6 The mark for which registration was sought was registered on 13 July 2014 under number 012326609.

7 On 24 February 2017, the intervener, Rochem Marine Srl, filed an application for a declaration of invalidity of that mark.

8 The ground relied on in support of the application for a declaration of invalidity was the existence of a likelihood of confusion between the contested mark and an Italian mark registered by the intervener under Article 53(1)(a) of Regulation No 207/2009 (now Article 60(1)(a) of Regulation 2017/1001), read in conjunction with Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).

9 The application for a declaration of invalidity was based on the earlier Italian figurative mark reproduced below, which was filed on 11 October 2000, registered on 12 July 2004 under number 933481 and duly renewed on 7 October 2010 for the goods in Class 11 corresponding to the following description: ‘Desalination plants; grey water and black water treatment plants’;

10 At the request of the applicant, the intervener was asked by EUIPO to furnish proof of genuine use of the earlier mark relied on pursuant to Article 57(2) and (3) of Regulation No 207/2009 (now Article 64(2) and (3) of Regulation 2017/1001). The intervener complied with that request within the period laid down for that purpose by EUIPO.

11 By decision of 20 May 2019, the Cancellation Division declared that the contested mark was partially invalid, namely for the goods and services at issue in Classes 11 and 40, on grounds of a likelihood of confusion and rejected the remainder of the application on account of the difference between the goods at issue.

12 On 18 July 2019, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001) against the decision of the Cancellation Division.

13 On 22 November 2019, the intervener submitted its observations in reply to the appeal, producing further evidence of use of the earlier mark. That new evidence consisted of 22 invoices dated between 16 April 2009 and 27 November 2014, a picture of the exhibit space the intervener occupied at the Seafuture trade fair held in La Spezia (Italy) in 2016 and an invoice dated 14 April 2016 issued to the intervener relating to the cost of renting that space. On 25 November 2019, EUIPO declared that the written phase of the procedure was closed.

14 By decision of 20 February 2020, the First Board of Appeal of EUIPO upheld the decision of the Cancellation Division and dismissed the appeal.

15 By a communication dated 19 June 2020, the First Board of Appeal of EUIPO notified the applicant and the intervener that the decision of 20 February 2020 contained an error in the calculation of the earlier of two five-year reference periods applicable in the present case.

16 Accordingly, on 17 November 2020, the Board of Appeal revoked its decision of 20 February 2020.

17 By the contested decision, the First Board of Appeal dismissed the appeal against the Cancellation Division’s decision.

– order EUIPO to reject the application for a declaration of invalidity in its entirety;

20 Given the date on which the application for registration at issue was filed, namely 7 November 2013, which is decisive for the purposes of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, order of 5 October 2004, Alcon v OHIM, C‑192/03 P, EU:C:2004:587, paragraphs 39 and 40, and judgment of 23 April 2020, Gugler France v Gugler and EUIPO, C‑736/18 P, not published, EU:C:2020:308, paragraph 3 and the case-law cited).

21 As regards the substantive rules, the references made by the applicant and the intervener in their written pleadings to Article 8(1)(b), Article 18, Article 60(1)(a) and Article 64(2) and (3) of Regulation 2017/1001 must be understood as referring, respectively, to Article 8(1)(b), Article 15, Article 53(1)(a) and Article 57(2) and (3) of Regulation No 207/2009, the wording of which is identical.

22 In so far as procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the dispute is governed by the procedural provisions of Regulation 2017/1001. Furthermore, having regard to the fact that the request for proof of use of the earlier mark was lodged before 1 October 2017, the procedural provisions of Article 10 of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation (EU) 2017/1001 of the European Parliament and of the Council on the European Union trade mark, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1) do not apply in the present case, with the result that it is the provisions of Rule 22 of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1), as amended, which applied to the submission of proof of use of the earlier mark.

23 In support of its action, the applicant raises, in essence, a single plea in law, alleging infringement of Article 15 and Article 57(2) and (3) of Regulation No 207/2009.

24 In support of its action, the applicant submits that EUIPO erred in its assessment of the probative value of the proof of use submitted by the intervener on the ground that the 22 invoices, dated 16 April 2009 to 27 November 2014, attached to its observations of 22 November 2019 in response to the appeal, have been forged in the light of the errors vitiating them which relate to the intervener’s share capital, address and email address. Accordingly, the applicant submits that those invoices should be refused as evidence.

25 In support of its claims, the applicant relies on additional documents (Annexes A.13, A.14 and A.17 to A.21) which, according to EUIPO and the intervener, have been submitted for the first time before the Court.

26 EUIPO and the intervener contend that those arguments and evidence are relied on by the applicant for the first time before the Court and are therefore inadmissible.

27 Given that the intervener has acknowledged before the Court that the invoices submitted before the Board of Appeal did not correspond to the heading of those invoices when they were issued, that fact may be deemed to have been established. Consequently, the Court does not have to rule on whether the applicant’s argument and the evidence (Annexes A.13, A.14 and A.17 to A.21) in support of that argument are admissible.

The single plea in law, alleging infringement of Article 15 and Article 57(2) and (3) of Regulation No 207/2009

28 The existence of a likelihood of confusion is not disputed by the applicant. It merely claims that the earlier mark has not been used.

29 The applicant submits, in essence, that EUIPO erred, in breach of Article 15 and Article 57(2) and (3) of Regulation No 207/2009, when assessing the probative value of the proof of use submitted by the intervener, as that proof does not demonstrate genuine use of the earlier mark. The applicant’s main complaints relate to the fact that some of the documents are not provided in Italian and are undated, that the number of orders is extremely low, that the sign has been used as a company name and not as a trade mark, that it has not been affixed and that the evidence does not relate to the relevant goods.

30 EUIPO and the intervener dispute the applicant’s arguments and submit that the Board of Appeal was correct in finding that the evidence adduced by the intervener was sufficient to demonstrate use of the earlier mark in Italy for the goods covered by it for the two reference periods, during which the earlier mark was protected.

31 As a preliminary point, it must be borne in mind that, according to Article 57(2) of Regulation No 207/2009, if the proprietor of the EU trade mark so requests, the proprietor of an earlier EU trade mark, being a party to the invalidity proceedings, is to furnish proof that, during the period of five years preceding the date of the application for a declaration of invalidity, the earlier EU trade mark has been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered and which the proprietor of that earlier trade mark cites as justification for its application, or that there are proper reasons for non-use, provided the earlier EU trade mark has at that date been registered for not less than five years. According to Article 57(3) of Regulation No 207/2009, the abovementioned paragraph 2 also applies to earlier national trade marks.

32 It should be noted that, under Rule 22(3) and (4) of Regulation No 2868/95 (now Article 10(3) and (4) of Delegated Regulation 2018/625), proof of use of an earlier mark must concern the place, time, extent and nature of use of the mark and it is, in principle, to be limited to the submission of supporting documents and items such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements, and statements in writing as referred to in Article 78(1)(f) of Regulation No 207/2009 (now Article 97(1)(f) of Regulation 2017/1001).

33 In the interpretation of the notion of genuine use, account must be taken of the fact that the rationale for the requirement that the earlier mark must have been put to genuine use is not to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade mark protection to the case where large-scale commercial use has been made of the marks (judgments of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 38, and of 2 February 2016, Benelli Q. J. v OHIM – Demharter (MOTOBI B PESARO), T‑171/13, EU:T:2016:54, paragraph 68).

34 There is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark (judgments of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43, and of 8 June 2017, W. F. Gözze Frottierweberei and Gözze, C‑689/15, EU:C:2017:434, paragraph 37).

35 To examine whether an earlier trade mark has been put to genuine use, an overall assessment must be carried out, which takes into account all the relevant factors of the particular case. That assessment entails a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa. In addition, the turnover and the volume of sales of the goods under the earlier trade mark cannot be assessed in absolute terms but must be looked at in relation to other relevant factors, such as the volume of business, production or marketing capacity or the degree of diversification of the undertaking using the trade mark and the characteristics of the goods or services on the relevant market (see judgment of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 42 and the case-law cited).

36 Moreover, genuine use of a trade mark cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of effective and sufficient use of the trade mark on the market concerned (judgment of 16 June 2015, Polytetra v OHIM – EI du Pont de Nemours (POLYTETRAFLON), T‑660/11, EU:T:2015:387, paragraph 47).

37 Genuine use of the mark presupposes that the mark is used publicly and outwardly, and not just within the undertaking concerned (see, to that effect, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 37). However, outward use of a trade mark is not necessarily equivalent to use directed towards end consumers. Genuine use of the mark relates to the market on which the proprietor of that mark pursues its commercial activities and on which it hopes to put its mark to use. Accordingly, taking the view that outward use of a mark, for the purposes of the case-law, must consist of use aimed at end consumers would effectively mean that marks used only in inter-corporate relations are excluded from the protection afforded by Regulation No 207/2009. The relevant public to which marks are addressed does not comprise only end consumers, but also specialists, industrial customers and other professional users (see judgment of 4 April 2019, Hesse and Wedl & Hofmann v EUIPO (TESTA ROSSA), T‑910/16 and T‑911/16, EU:T:2019:221, paragraph 38 and the case-law cited).

38 It is in the light of those considerations that the applicant’s single plea in law must be examined.

39 It should be noted at the outset, as the Board of Appeal did, that, in view of the date on which the application for registration of the contested mark was filed, namely 7 November 2013, and the date of filing of the application for a declaration of invalidity directed against the contested mark, namely 24 February 2017, it follows from Article 57(2) of Regulation No 207/2009, read in conjunction with Article 42(2) of that regulation, that the reference periods ran from 7 November 2008 to 6 November 2013 and from 24 February 2012 to 23 February 2017, which is not disputed by the applicant.

40 In the present case, as is apparent from paragraph 4 of the contested decision, the intervener produced, before the Cancellation Division, the following evidence in order to prove genuine use of the earlier mark:

– an extract from the website www.rochem.dk relating to its history and main activities;

– five invoices and one delivery note issued in the period from 9 December 2010 to 29 January 2016;

– documentation on trade fairs and exhibitions which it attended, namely Ecomondo Rimini (Italy) 2007, 2008, 2009, 2010; Navdex Abu Dhabi (United Arab Emirates) 2011; and Sea Trade Genova (Italy) 2002 and 2004;

– an article on the ERSAI 400 project from the publication Tecnologie e trasporti Mare of May/June 2008;

– technical sheets and a 2015 installation manual on the Bio-Filt Rochem product for the Italian Navy;

41 Furthermore, as has been pointed out in paragraph 13 above, the intervener produced, before the Board of Appeal, the following additional evidence of use of the earlier mark:

– a photograph of the exhibit space occupied by the intervener at the Seafuture trade fair held in La Spezia in 2016;

– an invoice dated 14 April 2016 relating to the cost of renting that exhibit space.

42 It is common ground between the parties that the copies of the 22 invoices dated 16 April 2009 to 27 November 2014 produced by the intervener before EUIPO refer to data relating to the intervener’s company at the time when the invoices were extracted from the management system and not those in existence at the time the original documents were issued. There is therefore a difference between the invoices as they were issued and the invoices as submitted to EUIPO.

43 All the 22 invoices, as submitted to EUIPO, reproduce the earlier mark in the upper right-hand corner in large print. However, the parties agree that only 16 of the original invoices reproduce the earlier mark in the upper right-hand corner. The other six original invoices dated 31 January 2014 to 27 November 2014 contain the signs APTwater or ULTURA in the upper right-hand corner, the term ‘Rochem’ appearing only in small characters at the bottom of the page.

44 In the first place, as regards the place of use, the Board of Appeal found, in paragraph 37 of the contested decision, that it was clear from the invoices, mostly addressed to Italian undertakings, that the place of use of the earlier mark was Italy. It stated that the addresses on those invoices corroborated the information from the advertising material, the comments on the ERSAI 400 project in the Technologie e trasporti Mare publication, the technical drawings and the 2015 installation manual, as well as evidence of its participation in trade fairs in Italy, such as the invoice relating to attendance at the Seafuture trade fair held in La Spezia in 2016, drawn up in Italian.

45 The applicant asserts that the intervener’s webpages and the technical drawings for customers are not specifically directed at the Italian consumer, since their content is not drawn up in Italian.

46 In that regard, it is common ground that the invoices produced as proof of use of the earlier mark before the Cancellation Division and before the Board of Appeal were addressed to various retail customers established in Italy. That proof is corroborated, as the Board of Appeal rightly pointed out, by the existence of numerous other items of evidence in Italian. It is true that on the pages of the intervener’s website the technical drawings are not reproduced in Italian. However, this does not cast doubt on the fact that the relevant market is indeed Italy.

47 Consequently, the Board of Appeal was right in finding, in paragraph 37 of the contested decision, that the items of evidence related to use of the earlier mark in Italy.

48 In the second place, as regards the applicant’s argument that the evidence is undated or does not fall within the relevant period, it is true, as is apparent from the contested decision, that certain documents on which the Board of Appeal based its assessment according to which genuine use of the earlier mark had been proved do not fall within the relevant period. That is the case for the extract from the page from the intervener’s website, the documentation on trade fairs and exhibitions attended by the intervener, advertising material and technical sheets.

49 Although those documents do not, in themselves, make it possible to conclude that there has been genuine use of the earlier mark, such evidence, far from being irrelevant, must be taken into account and should be evaluated in conjunction with the rest of the evidence, inasmuch as they can offer ex post facto proof of real and genuine commercial exploitation of the mark (see judgment of 16 June 2015, POLYTETRAFLON, T‑660/11, EU:T:2015:387, paragraph 54 and the case-law cited).

50 It follows that, in so far as the Board of Appeal did not base its assessment of the genuine use of the earlier mark solely on the documents referred to in paragraph 48 above, but took those items of evidence into consideration in conjunction with other items of evidence dated and falling within the reference periods in order to find that genuine use of that mark had been proved, it did not err in law in taking into account the evidence referred to in paragraph 48 above.

51 Furthermore, the way in which the applicant analysed the evidence is incompatible, first, with the principle that the evidence must be assessed globally and, second, with the fact that, when assessing whether there has been genuine use of the trade mark, regard must be had to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark is real (judgments of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 38, and of 16 November 2011, Buffalo Milke Automotive Polishing Products v OHIM – Werner & Mertz (BUFFALO MILKE Automotive Polishing Products), T‑308/06, EU:T:2011:675, paragraph 60).

52 It follows that the applicant’s argument that certain items of evidence cannot be taken into account on the ground that they do not bear a date or do not relate to the reference periods or do not mention the earlier mark cannot succeed.

53 In the third place, as regards the extent of use, the applicant claims that the number of orders is extremely low, even though the relevant periods range from 2008 to 2017. As regards the five invoices submitted before the Cancellation Division, the applicant challenges their probative value on the ground that they refer only to two orders invoiced by the intervener.

54 As the intervener rightly pointed out, that argument is being put forward for the first time before the Court and cannot therefore be taken into account (see, to that effect, judgment of 14 May 2009, Fiorucci v OHIM – Edwin (ELIO FIORUCCI), T‑165/06, EU:T:2009:157, paragraph 22 and the case-law cited).

55 In any event, as regards the five invoices submitted before the Cancellation Division, the Board of Appeal rightly found, in paragraph 39 of the contested decision, that those invoices constitute use which, objectively, is such so as to create or preserve an outlet for the goods at issue and entails a volume of sales which, in relation to the period and frequency of use, is not so low that it may be concluded that the use is merely token, minimal or notional for the sole purpose of preserving the rights conferred by the mark.

56 Furthermore, those invoices were supplemented by the 22 invoices produced before the Board of Appeal, 16 of which contain the earlier mark in the upper right-hand corner.

57 At the hearing, the applicant submitted that the fact that the six invoices dated from 31 January 2014 to 27 November 2014 do not include the earlier mark in the upper right-hand corner is significant, given that, in the contested decision, EUIPO specifically referred to three of those six invoices in support of its claim that the intervener had issued invoices for high amounts during the second reference period.

58 Even if the six invoices dated 31 January 2014 to 27 November 2014, which do not include the earlier mark in the upper right-hand corner, are not taken into account, the Court finds that proof of the extent of use is provided by other invoices attesting to sales of goods covered by the earlier mark for high amounts during the second reference period, for example invoice No 298 of 21 August 2012, invoice No 484 of 7 December 2012 and invoice No 1 of 29 January 2016. Therefore, the fact that the six invoices dated from 31 January 2014 to 27 November 2014 do not include the earlier mark in the upper right-hand corner is irrelevant in that regard.

59 It follows that the applicant’s argument that the number of orders is extremely low must, in any event, be rejected. Moreover, it should be added that the purpose of the requirement of genuine use is not to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade mark protection to the case where large-scale commercial use has been made of the marks, as has been recalled in paragraph 33 above.

60 In the fourth place, as regards the nature of use, the applicant does not dispute the presence of the earlier mark in the upper right-hand corner on the majority of the invoices, on the photographs of trade fair stands, on the technical sheets and in the installation manual. However, according to the applicant, that sign refers to the intervener’s name and does not constitute use of a trade mark for the goods protected. The applicant also adds that the invoices refer to goods and installations which do not relate to the earlier mark but to the mark BIO-FILT.

61 In that respect, where a trade mark is also a company name, it does not preclude the company name from being used as a trade mark (see, to that effect, judgment of 27 September 2007, La Mer Technology v OHIM – Laboratoires Goëmar (LA MER), T‑418/03, not published, EU:T:2007:299, paragraph 74). However, it should be noted that the purpose of a company name is to identify a company and not, in itself, to distinguish goods or services. Therefore, there is use in relation to goods or services where a third party affixes the sign constituting its company name to the goods which it markets or where, even if the sign is not affixed, the third party uses that sign in such a way that a link is established between the sign which constitutes the company and the goods marketed or the services provided by the third party (see, to that effect, judgment of 11 September 2007, Céline, C‑17/06, EU:C:2007:497, paragraphs 21 to 23).

62 It should be noted that the earlier mark is displayed, in large letters, in the upper right-hand corner of most of the invoices. Those invoices therefore establish a clearly perceptible link between the earlier mark and the goods mentioned in the invoices. In addition, other items of evidence also establish such a link. For example, the earlier mark also appears at the top of the technical sheets on water design and waste water treatment as well as in the 2015 installation manual for BIO-FILT products.

63 As regards the applicant’s argument that the failure to affix the earlier mark to the goods precludes proof of use of the earlier mark for those goods, it is necessary to recall the principle set out in paragraph 61 above, according to which it is not necessary for the earlier mark to be affixed to goods in order for it to be put to genuine use in relation to those goods. It is sufficient that the use of the earlier mark establishes a link between the mark and the marketing of those goods. The presence of the earlier mark in the invoices, technical sheets and the 2015 installation manual establishes such a link in the present case.

64 In the fifth place, as regards the applicant’s argument that, during the relevant period, the intervener used the mark BIO-FILT to identify its goods, it must be noted, as the intervener did, that the earlier mark covers the whole line of the intervener’s grey water and black water treatment plants, whereas BIO-FILT is a mark which is suitable only for the designation of some of the goods offered.

65 Rule 22(3) and (4) of Regulation No 2868/95 does not require the intervener to prove use of the earlier mark alone, independently of any other mark. It is therefore irrelevant that the intervener used the earlier mark and the mark BIO-FILT together to identify its goods on the invoices.

66 It follows from all of the foregoing that the Board of Appeal did not make an error of assessment in finding that proof of genuine use of the earlier mark had been adduced in the present case.

67 Consequently, the single plea in law must be rejected and, therefore, the action must be dismissed in its entirety, without it being necessary to rule on the admissibility of Annexes A.15 and A.16.

68 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by EUIPO and the intervener, in accordance with the form of order sought by them.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Rochem Group v EUIPO - Rochem Marine (R.T.S. ROCHEM Technical Services) (EU trade mark - Judgment) [2023] EUECJ T-546/21 (26 April 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/T54621.html Cite as: ECLI:EU:T:2023:221, [2023] EUECJ T-546/21, EU:T:2023:221

Court of Justice of the European Communities (including Court of First Instance Decisions)