ddrg/super_eurlex huggingface dataset:
3.

EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Applicant in bad faith when lodging the trade mark application — Criteria for assessment — Taking into account of all relevant factors at the time of filing the application for registration — Applicant’s knowledge that a third party is using an identical or similar sign — Intention of the applicant — Degree of legal protection of the signs at issue — Commercial logic underlying the registration of the contested sign as an EU trade mark — Chronology of events characterising the filing of the trade mark application — Origin of the sign at issue and its use since its creation (Council Regulation No 207/2009, Art. 52(1)(b)) (see paras 31-35)
Officials — Non-contractual liability of the institutions — Conditions — Compensation for loss caused to an official or member of staff — Administration’s duty to have regard for the interests of officials — Scope

(Arts 268, 270 and 340, 2nd para. TFEU; Staff Regulations of Officials, Arts 90 and 91)

(see para. 78)
Agriculture — EAGF and EAFRD financing — Clearance of accounts — Disallowance of expenses arising from irregularities in applying EU rules — Challenge by the Member State concerned — Burden of proof — Shared by the Commission and the Member State

(European Parliament and Council Regulation No 1306/2013, Art. 52(1) and (2))

(see paras 19-21, 41, 105)
6.

Acts of the institutions – Statement of reasons – Obligation – Scope – Decision of the Single Resolution Board (SRB) on the calculation of the ex ante contributions to the Single Resolution Fund (SRF) – Opacity of the calculation of the ex ante contributions – Calculation relying in an interdependent manner on the confidential data of the other institutions – Infringement of the obligation to state reasons stemming, in respect of the part of the calculation relating to the risk adjustment, from the illegal nature, alleged by means of a plea in law, of Articles 4 to 7 and 9 of, and Annex I to, Delegated Regulation 2015/63 (Arts 296 and 277 TFEU; European Parliament and Council Regulation No 806/2014, Arts 67(4) and 70(2); Commission Regulation 2015/63, Arts 4 to 7 and 9 and Annex I; European Parliament and Council Directive 2014/59, Art. 103) (see paras 66, 69, 76, 81, 84, 98, 100, 102)
2

In the version applicable to the dispute, which resulted from the decision of the Board of Directors of the Bank of 4 June 2013 and entered into force on 1 July 2013, Article 41 of the EIB Staff Regulations provides: ‘Disputes of any nature between the Bank and individual members of staff shall be brought before the Court of Justice of the European Union. Any proceedings instituted by a member of staff in respect of an action of the Bank which would adversely affect him must be brought within three months. In addition to proceedings being instituted before the Court of Justice…, an amicable settlement shall be sought, prior to the institution of any proceedings, before the Bank’s Conciliation Board in respect of disputes other than such as arise from application of the disciplinary measures provided for under Article 38. The request for conciliation must be made within three months of the day of the occurrence of the facts or of the notification of the actions giving rise to the dispute. The Conciliation Board shall consist of three members. When the Board is obliged to meet, one of its members shall be nominated by the President of the Bank, another by the official concerned, both nominations being made within one week of one party so requesting the other. The third member, who shall be the Chairman of the Board, shall be nominated by the first two nominees within one week of their being nominated. He need not be a member of the Bank. If, within one week following their nomination, the first two members are unable to agree on the nomination of the Chairman, such nomination shall be undertaken by the President of the Court of Justice of the European Union. The conciliation procedure shall be deemed to have failed if: – the President of the Court of Justice has not nominated the Chairman [of the Conciliation Board] within four weeks of communication of the President of the Bank’s petition to this effect; – the Conciliation Board does not reach a settlement acceptable to both sides within two weeks of its formation.’
35

That finding is not affected by the applicant’s arguments in the reply, in which, whilst acknowledging that under the current case-law of the EU Courts its second head of claim is not admissible, it nonetheless contends that the consequence of this is that the effective exercise of its right to an internal review and to effective judicial protection is likely to be delayed in an unacceptable manner, and ultimately be made impossible. According to the applicant, it is therefore appropriate, in the interests of the effective application of Regulation No 1367/2006 and in order to protect its rights, that examination of the merits of its complaints against Implementing Regulation 2016/1056 should be the subject of the present proceedings before the Court. That argument must be rejected. By giving the party making the request the right to institute proceedings before the Court of Justice of the European Union, Article 12 of Regulation No 1367/2006 relates only to the decision which the Commission adopted in response to the request for internal review. Contrary to what the applicant maintains, the judgment of 15 December 2016, TestBioTech and Others v Commission (T‑177/13, not published, EU:T:2016:736), relied on by the applicant in that regard, confirms that, although it is inherent in a request for internal review of an administrative act that the party requesting the review is challenging the lawfulness or merits of the measure, that does not mean that the party making the request is entitled, in the course of its action for annulment of the refusal to conduct a review, to put forward arguments directly challenging the lawfulness or merits of the measure (judgment of 15 December 2016, TestBioTech and Others v Commission, T‑177/13, not published, EU:T:2016:736, paragraph 56).
15

EUIPO disputes the applicant’s arguments. It is of the view that the core of the dispute is whether the contested mark was, at the time of its filing, descriptive in territories situated outside Bulgaria, in particular in the neighbouring countries of Greece and Romania. It states that the contested decision is not vitiated by any error in finding that the evidence on the file suffices to establish that at the date of application for registration of the contested mark it was likely that a considerable, or at least, a non-negligible portion of the relevant public in Greece and Romania, would make an association between the sign DEVIN, understood as the name of a spa town in Bulgaria, and the geographical origin of the designated goods, in particular waters included in Class 32. It contends that the Board of Appeal is not precluded by precedent from drawing inferences to find that a significant part of the Greek or Romanian public associated the word ‘devin’ with the geographical origin of the goods concerned. It asserts that, on the basis of the evidence produced, the Board of Appeal was justified in taking the view that the ‘undoubted reputation’ of Devin as a spa town with natural healing waters did not stop at the Bulgarian boarder, but extended to neighbouring countries and that it was reasonable to assume that awareness of Devin by consumers outside Bulgaria is considerable. According to EUIPO, the applicant is wrong to believe that ‘the town of Devin is protected somehow by natural fortification, without information, and that all this would make it almost inaccessible’. For its part, it is of the view that the low numbers of the registered visits of Greek and Romanian tourists in hotels in the town of Devin, its small size and its geographical location cannot invalidate the contested decision. It concludes that the Board of Appeal rightly protected the general interest in preserving the availability of a geographical name such as that of the spa town of Devin.
74

Furthermore, judicial review of compliance with the European Union legal order is ensured, as can be seen from Article 19(1) TEU, not only by the Court of Justice but also by the courts and tribunals of the Member States (see judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 45 and the case-law cited). In the present case, as the Council stated, one of the principal complaints invoked by the applicants is that they did not have the right to vote in the referendum of 23 June 2016 or during the election of the parliamentarians who adopted the European Union (Notification of Withdrawal) Act 2017. Those UK citizen voting procedures and, indeed, the notification of intention to withdraw, were open to challenge before the UK courts, which may, where appropriate, refer questions to the Court for a preliminary ruling on the interpretation of the Treaties, pursuant to Article 267 TFEU. In that regard, it must be noted that a number of cases on the legality of the procedures and acts of the UK authorities implementing the withdrawal procedure provided for by Article 50 TEU have been brought before the UK courts. By a judgment of 28 April 2016, the High Court of Justice (England and Wales), Queen’s Bench Division (Administrative Court) ruled on the application by which Mr H. Shindler and other applicants challenged the legality of the referendum of 23 June 2016, claiming that UK citizens resident in another EU Member State for more than 15 years were deprived of their right to vote by the so-called ‘15 years rule’, in breach of EU law. As was noted at the hearing, the same court, by a judgment of 12 June 2018, also dismissed an application by which Ms E. Webster and other applicants called into question the United Kingdom’s conduct of the negotiations for a withdrawal agreement, in the light of the alleged lack of a decision to withdraw taken in accordance with the United Kingdom’s constitutional requirements.
44

The Commission submits that, in actions for damages, compensatory interest is intended primarily to provide compensation for the damage caused by inflation between the event causing the damage and payment of compensation and, in so far as possible, to provide restitution for the victim (the principle of restitutio in integrum). The award of compensatory interest is thus subject to the conditions for non-contractual liability being met, which is not the position in the present case. In any event, that interest must be calculated on the basis of the damage actually sustained, which is normally determined using the rate of inflation recorded for the period in question by Eurostat in the Member State in which the applicant is established. In the present case, during the reference period of 13 March 2015 to 1 February 2017, the rate of inflation in Spain was 0%. Even if compensatory interest were to be calculated on the basis of the ECB refinancing rate (see paragraph 24 above) and not on that of the rate of inflation, the applicable refinancing rate is the rate in force during the reference period, which was set at a rate of 0% on 16 March 2016, and not the rate of 0.05% applicable since 9 March 2015. There is no question of an increase of 2 percentage points since, unlike default interest, compensatory interest is not intended to place a greater burden on the debtor with a view to avoiding or limiting a delay in the performance of its payment obligation. The Commission submits that the applicant did not sustain damage as a result of the provisional payment of the fine and the need to find other sources of finance at a cost. As regards the default interest payable following a delay in complying with the obligation to pay a specific amount, the Commission states, in essence, that default interest must be calculated from the date of the judgment imposing that obligation until the date on which payment is made in full. Unlike compensatory interest, the interest rate applicable to default interest is the ECB refinancing rate plus 2 percentage points. The increase of 3.5 percentage points requested by analogy to the interest rate applied in the event of non-payment of the fine specified in the 2014 decision cannot therefore be agreed to.
147

It is apparent from the case file that the EEAS replied to the applicant’s request for authorisation by letter of 5 May 2013, within the period of four months provided for in Article 90(1) of the Staff Regulations. In that letter, which opened with a brief clarification of the scope of Article 17a of the Staff Regulations, the EEAS authorised the applicant to disclose the documents concerned only in so far as this would enable him to obtain assistance in the context of his medical file. Having regard to the principle of confidentiality laid down in Article 17 of the Staff Regulations, that authorisation should have been interpreted strictly. Therefore, in the context of the applicant’s request and of the reply that he received, any disclosure of the documents in question that was not strictly related to the applicant’s personal assistance (social, medical, psychological or legal) in the context of his medical file was precluded. In the event of uncertainty, it was incumbent on the applicant to check with the EEAS that a planned disclosure was indeed covered by the limited authorisation he had been granted. That was all the more so since that authorisation was accompanied by a reminder of his obligations under the Staff Regulations, in particular the obligation to refrain from any unauthorised disclosure of information received in the line of duty and to respect the principles of loyalty and impartiality.
75

Moreover, regarding the downstream market, even assuming that, as the applicant claims, for the final consumer, sports content is not wholly interchangeable, it must be borne in mind that, according to recitals 55 and 56 of the contested decision, the relevant market is possibly that of the retail supply of pay TV services and not that of the retail supply of pay TV sports content, even less that of the supply of pay TV football content. The sports content broadcast by channels Ziggo Sport Totaal and Fox Sports is part of an overall package of TV services offered to end consumers comprising various elements, of which sports content is but one component, even if it may be important for attracting customers. Therefore, from the perspective of the average end consumer of TV services in general, there is no indication that an overall package of TV services incorporating the channel Ziggo Sport Totaal is not comparable to an overall package of TV services incorporating the channel Fox Sports, despite the fact that the sports content of those two channels is not identical. Furthermore, even though it may be desirable from a commercial point of view for a retail TV services provider to be able to offer its subscribers the Ziggo Sport Totaal and Fox Sports channels, it should be recalled that, according to recital 504 of the contested decision, only a small minority of respondents to the market investigation believed that it was necessary to offer all of the premium pay TV sports channels available in the Netherlands.
17

By letter of 4 December 2017, at the request of the Ombudsman, with whom Trasys had lodged its complaint, EASA provided some additional information, stating that, in the course of the evaluation process, doubts had been raised as regards the question of the abnormally low prices proposed by the four tenderers, such as the daily prices for certain specific profiles, which appeared to be substantially lower than current market prices for an equivalent service, and that two further exchanges had taken place in order to clarify that question as regards those tenderers. EASA explained to the Ombudsman that, besides asking some specific questions, it had requested that the tenderers provide evidence that their prices complied with the applicable environmental, social and labour laws and that the services were provided at rates comparable to those stated in the tenders. EASA also stated that all the tenderers had replied, submitting evidence such as, in particular, payment receipts, invoices and contract references for services provided in a similar environment. Moreover, all the tenderers confirmed their compliance with national labour and social security laws for the entire duration of the contract, and provided EASA with calculations as evidence which EASA submitted to the Ombudsman in a confidential annex. EASA explained that the evaluation committee had accepted the prices given in the financial offers, taking into account the declarations made by the tenderers and the documentation and cost calculation formulas submitted in support of those declarations, because there was neither sufficiently strong evidence nor any proof to justify the rejection of the three highest-ranking tenders. EASA also mentioned that it had carefully considered Trasys’ letter of 6 September 2017, but had concluded that that letter was based on assumptions and did not contain sufficient evidence.
36

On 29 July 2016, the Commission adopted Decision (EU) 2017/1861 on State aid SA 33983 (2013/C) (ex 2012/NN) (ex 2011/N) — Italy — Compensation to Sardinian airports for public service obligations (SGEI) (OJ 2017 L 268, p. 1; ‘the contested decision’), the operative part of which reads as follows: ‘Article 1 1. The scheme that Italy established by … Law [No 10/2010] does not involve State aid within the meaning of Article 107(1) [TFEU] in favour of SOGEAAL …, SOGAER … and GEASAR … 2. The scheme that Italy established by Law No 10/2010 constitutes State aid for the purposes of Article 107(1) of the Treaty in favour of Ryanair/AMS, easyJet, Air Berlin, Meridiana, Alitalia, Air Italy, [the applicant], Wizzair, Norwegian, JET2.COM, Niki, Tourparade, Germanwings, Air Baltic and Vueling, in so far as it relates to the operations of those airlines at Cagliari-Elmas airport and Olbia airport. 3. The State aid referred to in paragraph 2 has been put into effect by Italy in breach of Article 108(3) [TFEU]. 4. The State aid referred to in paragraph 2 is incompatible with the internal market. Article 2 1. Italy shall recover the State aid referred to in Article 1(2) from the beneficiaries. 2. Taking into account that Ryanair and AMS constitute a single economic unit for the purpose of the present decision they shall be jointly liable for repayment of the State aid received by either of them. 3. The sums to be recovered shall bear interest from the date on which they were put at the disposal of the beneficiaries until their actual recovery. … 5. Italy shall cancel all outstanding payments of the aid referred to in Article 1(2) with effect from the date of adoption of this Decision. Article 3 1. Recovery of the aid referred to in Article 1(2) shall be immediate and effective. 2. Italy shall ensure that this Decision is implemented within 4 months following the date of its notification of this Decision. Article 4 1. Within 2 months following notification of this Decision, Italy shall submit the following information: – the list of beneficiaries that have received aid under the scheme referred to in Article 1(2) and the total amount of aid received by each of them under the scheme, – the total amount (principal and recovery interests) to be recovered from each beneficiary, – a detailed description of the measures already taken and planned to comply with this Decision, – documents demonstrating that the beneficiaries have been ordered to repay the aid. 2. Italy shall keep the Commission informed of the progress of the national measures taken to implement this Decision until recovery of the aid referred to in Article 2 has been completed. It shall immediately submit, on simple request of the Commission, information on the measures already taken and planned to comply with this Decision. It shall also provide detailed information concerning the amounts of aid and recovery interest already recovered from the beneficiaries. Article 5 This Decision is addressed to the Italian Republic.’
Judgment of the General Court (Third Chamber) of 15 November 2018 –

LMP Lichttechnik v EUIPO (LITECRAFT)

(Case T‑140/18)

(EU trade mark — Application for EU word mark LITECRAFT — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EU) 2017/1001))

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 — Meaning (European Parliament and Council Regulation No 2017/1001, Art. 7(1)(c)) (see paras 13-15)

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 — Word mark LITECRAFT (European Parliament and Council Regulation No 2017/1001, Art. 7(1)(c)) (see paras 20-23)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 8 January 2018 (Case R 699/2017-2) relating to an application for registration of the word sign LITECRAFT as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — General reference to documents annexed to the application — Inadmissibility

(Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 177(1)(d))

(see para. 45)
EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Overlap of the scope of the grounds set out in Articles 7(1)(b) and 7(1)(c) of Regulation No 2017/1001

(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b) and (c))

(see para. 40)