ddrg/super_eurlex huggingface dataset:
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 25-28)
Judgment of the General Court (Sixth Chamber) of 13 December 2017 — Oltis Group v Commission

(Case T‑497/15)

(Research and development — Framework Programme for Research and Innovation 2014-2020 (Horizon 2020) — Stimulation and coordination of EU research and innovation investments in the rail sector — Establishment of the Shift2Rail Joint Undertaking — Associate membership of the Shift2Rail Joint Undertaking — Call for expressions of interest — Rejection of candidature — Obligation to state reasons — Manifest error of assessment — Misuse of powers)

1. Acts of the institutions—Statement of reasons—Obligation—Scope—Assessment of the duty to state reasons by reference to the circumstances of the case (Arts 263, fourth para. TFEU and 296 TFEU) (see para. 20)

2. Research and technological development—Framework Programme for Research and Innovation (Horizon 2020)—Stimulation and coordination of EU research and innovation investments in the rail sector—Establishment of the Shift2Rail Joint Undertaking—Evaluation of the applications for associate membership of the joint undertaking—Commission decision—No requirement to use a specific format (Council Regulation No 642/2014, Art. 4(2)) (see para. 26)

3. Research and technological development—Framework Programme for Research and Innovation (Horizon 2020)—Stimulation and coordination of EU research and innovation investments in the rail sector—Establishment of the Shift2Rail Joint Undertaking—Evaluation of the applications for associate membership of the joint undertaking—Commission decision—Judicial review—Limits (Council Regulation No 642/2014, Art. 4(2)) (see para. 32)

4. Actions for annulment—Pleas in law—Misuse of powers—Meaning (Art. 263 TFEU) (see para. 52)

Re:

Action based on Article 263 TFEU and seeking annulment of Commission Decision Ares (2015) 2691017 of 26 June 2015 concerning the request for a review of the rejection of the applicant’s application to become an associate member of the Shift2Rail Joint Undertaking.

Operative part

The Court:

1. Dismisses the action;
Agriculture — Common agricultural policy — Organic production and labelling of organic products — Regulation No 834/2007 — Aquaculture husbandry — Regulation No 1358/2014 — Fish production — Situation of producers using whole fish and histidine and situation of producers injecting reproductive hormones — Breach of the principle of equal treatment — None

(Charter of Fundamental Rights of the European Union, Arts 20 and 21; Commission Regulations No 889/2008 and No 710/2009, as amended by Regulation No 1358/2014, Art. 25e)

(see paras 99, 100, 111, 118, 121, 122, 127)
Judgment of the General Court (Sixth Chamber) of 10 June 2020 –

Spliethoff’s Bevrachtingskantoor v Commission

(Case T‑564/15 RENV)

(Financial assistance in the field of Connecting Europe Facility (CEF) – Transport sector for the period 2014-2020 – Calls for proposals – Decision establishing the list of proposals selected – Rejection of the proposal – Manifest errors of assessment – Equal treatment – Obligation to state reasons)

1. Economic, social and territorial cohesion – Structural assistance – European Union funding – Major projects – Assessment – Discretion of the Commission – Criteria for the grant of financing (see paras 61-63, 80)

2. Economic, social and territorial cohesion – Structural assistance – European Union funding – Major projects – Assessment – Discretion of the Commission – Proposal rejected as it was not comparable to the accepted proposals – Burden of proof – No breach of the principle of equal treatment (see paras 88-93, 97)

3. Economic, social and territorial cohesion – Structural assistance – European Union funding – Major projects – Assessment – Discretion of the Commission – Sufficient and comprehensible nature of the reasons that led the Commission not to accept the rejected proposal – No infringement of the duty to state reasons (see paras 119, 120)

Re:

Action under Article 263 TFEU for the annulment of Commission Implementing Decision C(2015) 5274 final of 31 July 2015 establishing the list of proposals selected for receiving EU financial assistance in the field of Connecting Europe Facility (CEF) – Transport sector, following the calls for proposals launched on 11 September 2014 based on the Multi-Annual Work Programme.

Operative part

The Court:

1. Dismisses the action;

2. Orders the European Commission to pay its own costs as well as those incurred by Spliethoff’s Bevrachtingskantoor BV relating to the appeal proceedings before the Court of Justice, in Case C‑635/16 P, and relating to the initial proceedings before the General Court, in Case T‑564/15;
25

In the first place, as regards the argument that, in general, a claim in respect of which EFSA has issued a positive opinion must be authorised, it should be observed that it is apparent from Article 18(4) of Regulation No 1924/2006 that, in taking a decision on a health claim application, the Commission must take three factors into account, namely, first, the scientific assessment in EFSA’s opinion; second, any relevant provisions of EU law; and, third, other legitimate factors relevant to the matter under consideration. As is apparent from the second subparagraph of Article 18(3) of Regulation No 1924/2006, read with Article 16(3) of that regulation, EFSA’s opinion does not include the second and third factors mentioned above. According to those provisions, in order to prepare its opinion, EFSA is required only to verify that the health claim is substantiated by scientific evidence and that the wording of the health claim complies with the criteria laid down in Regulation No 1924/2006. In particular, in practical terms, EFSA must ensure that the health claims are based on and substantiated by generally accepted scientific evidence, in accordance with Article 6(1) of that regulation. Consequently, there is no basis on which to conclude that the Commission was required to include the health claims at issue in the list of permitted claims solely because EFSA had issued positive opinions. Conversely, although, according to recital 17 of Regulation No 1924/2006, scientific substantiation should be the main aspect to be taken into account for the use of nutrition and health claims, when taking a decision in accordance with Article 18(4) of Regulation No 1924/2006, the Commission was also required to take into account any relevant provisions of EU law and other legitimate factors relevant to the matter under consideration. In addition, the fact that the Commission is not obliged to follow EFSA’s decision is confirmed by Article 18(5) of Regulation No 1924/2006, under which a health claim may also be authorised where EFSA issues an opinion that does not support the inclusion of the claim in the list referred to in Article 13(3) of that regulation. The applicant’s argument must therefore be rejected.
54

In the second place, recital 92 of the contested decision clearly omits to state what the Commission explained belatedly — and in a way that could not remedy the inadequacy of its reasoning or total failure to state reasons (see the case-law cited in paragraph 46 above) — only in the course of the proceedings, by providing substantive additional reasons, namely that, unlike the other undertakings involved, Hamelin’s business concerned the production of more than just one product and the adjustment of the basic amount for that company was justified, in any event, on equitable grounds and the need to redress the balance between the various fines (see paragraphs 34 and 35 above). Accordingly, in the light of those further explanations, contrary to the impression that might be given by recital 91 of the contested decision, the decisive factor in the Commission’s appraisal when adjusting the basic amounts was not the fact that there were ‘differences between the parties in view of their individual participation in the infringement’, which, in the case of Hamelin, was only slightly less, as it participated in the infringement for a period of 4.416 years, as opposed to 4.5 years in the case of the other undertakings concerned. Furthermore, contrary to what the applicants would appear to have understood, that recital cannot be construed as referring to the lesser degree of participation in the infringement by Mayer-Kuvert alone, as that had already given rise to a 10% reduction for mitigating circumstances, for the purpose of paragraph 29 of the Guidelines (recitals 85 and 87 of the contested decision), that is, before the contested adjustments were made to the basic amounts, as set out in recitals 88 et seq. of the contested decision.
62

It is true, as EUIPO submits, referring to the case-law resulting from the judgment of 16 September 2009, Zero Industry v OHIM — zero Germany (zerorh+) (T‑400/06, not published, EU:T:2009:331, paragraph 73), that the mere fact that a number of trade marks covering the goods at issue contain the same word is not enough to establish that the distinctive character of that element has been weakened because of its frequent use in the field concerned, even if the goods covered by those marks are themselves identical or there is a link between them. It is necessary to take into account the actual use of the marks on the market and not the abstract coexistence on the register of marks with an element in common (see, to that effect, judgment of 24 November 2005, GfK v OHIM — BUS (Online Bus), T‑135/04, EU:T:2005:419, paragraph 68). However, as the applicant correctly points out, the evidence contained in Annex 1, an annex which was submitted during the administrative proceedings, namely extracts from a number of websites of various undertakings offering consumers in the European Union wines covered by trade marks that include the words ‘sol’, ‘sole’, ‘soleil’ or ‘sun’ and various images of the sun, makes it possible to conclude that EU consumers in general, and the relevant public in particular, are in fact frequently exposed to such marks, with the result that the association between the concept of the sun, on the one hand, and wine, on the other hand, is not unfamiliar to them. The evidence which the applicant has put before the Court makes it possible to reach that conclusion without it being necessary to examine whether, as the applicant submits, the relationship between the concept of the sun and wine is a well-known fact.
23

In recital 96 of the contested regulation, the Commission states that the investigation did not reveal any transhipment practices of Chinese-origin products via Pakistan, and in recitals 98 and 99 of that regulation it outlines the anomalies which it revealed in the course of that investigation, which are set out in paragraphs 13 and 15 above. Next, in recitals 100 and 101 of the contested regulation, it deals with the issue of the evidentiary value of the ‘Form A’ certificates of origin and the proportion of raw materials from China used for the manufacture of bicycle parts in Sri Lanka. Those recitals are drafted as follows: ‘100 After disclosure, the [applicant] disagreed with the Commission’s assessment that the [“Form A”] certificates of origin submitted for the bicycle parts purchased from Sri Lanka could not be considered sufficient evidence to demonstrate the origin of the bicycle parts. The [applicant] argued that the costs statements were prepared by a firm of chartered accountants and that the importers should be able to rely on [“Form A”] certificates of origin issued by the Sri Lankan Department of Commerce. The [applicant] confirmed that the costs statements were not supported by real manufacturing costs for parts but a mere projection of future costs valid for about 1 year. Moreover, the [applicant] claimed that Article 13(2)(b) of the basic regulation is not a rule of origin and, therefore, that it cannot be applied to assess the origin of the bicycle parts purchased from Sri Lanka. 101 As explained in recital 98, the [“Form A”] certificates of origin were not considered sufficient evidence to demonstrate the origin of the bicycle parts purchased from Sri Lanka because they were not issued on the basis of actual manufacturing costs but on a projection of manufacturing costs for the future which does not provide any guarantees that the bicycle parts were indeed manufactured in compliance with the projected costs. Moreover, it should be made clear that the Commission is not disputing in general the methodology for the issuance of the [“Form A”] certificates of origin in Sri Lanka, which is beyond the scope of this investigation, but only assessing whether the conditions of Article 13(2) of the basic regulation are met in the present case. In these circumstances, while noting that Article 13(2)(b) of the basic regulation is indeed not as such a rule of origin, the Commission was justified in considering that as these parts were manufactured for more than 60% with raw materials from China and the value added was less than 25% of the manufacturing costs, it could conclude that these parts themselves come from China. Therefore, all the above claims were rejected.’
48

The applicants, supported by the Republic of Malta and Stiftung Universität Lüneburg, claim that, by their assessment, the independent experts authorised by the EIT went beyond the merely advisory role legally attributed to them. According to the applicants, those experts were given the power to preselect proposals and, accordingly, were able to eliminate the proposal submitted by the Kenup consortium without a decision being taken by the governing board and without that board’s having examined it. Although experts play an important role in assessing KIC proposals, the selection and designation of those proposals fall within the sole competence of the governing board, with no possibility of delegation, on account of the fundamental importance of that decision. Still less can the preselection decision made by the experts be attributed to the governing board, since it did not, in breach of Regulation No 1290/2013, appoint the experts, who received no instruction, guidance or monitoring from the governing board, those tasks, in the present case, having been performed by the authorising officer, that is to say the director of the EIT. In that regard, the applicants claim that the director of the EIT exercised undue influence on the evaluation procedure. Finally, the applicants submit that, although the experts had broad discretion, the governing board was not entitled to rely on their evaluation without checking it.
Judgment of the General Court (First Chamber) of 24 January 2017 — Solenis Technologies v EUIPO (STRONG BONDS. TRUSTED SOLUTIONS.)

(Case T‑96/16)

(EU trade mark — Application for the EU word mark STRONG BONDS. TRUSTED SOLUTIONS. — Absolute ground for refusal — No distinctive character — Article 7(1)(b) and (2) of Regulation (EC) No 207/2009)

1. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Concept — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 14-17)

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 para. 18)

3. 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 — Flattering promotional formula (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 19)

4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Word mark STRONG BONDS. TRUSTED SOLUTIONS. (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 21, 28-30)

Re:

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 3 December 2015 (Case R 613/2015-2), concerning an application for registration of the word sign STRONG BONDS. TRUSTED SOLUTIONS. as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Second Chamber) of 3 April 2017 —

Cop v EUIPO — Conexa (AMPHIBIAN)

(Case T‑215/16)

(EU trade mark — Invalidity proceedings — International registration designating the European Union — Figurative mark AMPHIBIAN — Absolute grounds for refusal — Distinctive character — Lack of descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

1. EU trade mark—Appeals procedure—Action before the EU judicature—Condition of admissibility—Grounds of appeal directed only against decisions of the Boards of Appeal (Council Regulation No 207/2009, Art. 65(1)) (see para. 12)

2. EU trade mark—Appeals procedure—Action before the EU judicature—Jurisdiction of the General Court—Re-evaluation of the facts in the light of evidence produced for the first time before it—Precluded (Council Regulation No 207/2009, Art. 65) (see para. 18)

3. Community trade mark—Appeals procedure—Action before the EU judicature—Legality of the decision of a Board of Appeal—Account taken, for the purposes of applying EU law, of national legislation, case-law or academic writing—Lawfulness (Council Regulation No 207/2009, Art. 65) (see para. 21)

4. EU trade mark—Definition and acquisition of the EU trade mark—Prior registration of the trade mark in certain Member States—Effect (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—Aim—Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 33)

6. 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—Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 34-37)

7. EU trade mark—Surrender, revocation and invalidity—Absolute grounds for invalidity—Registration contrary to Article 7(1)(c) of Regulation No 207/2009—Figurative mark AMPHIBIAN (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 39-47, 55)

8. EU trade mark—Procedural provisions—Examination of the facts of the Office’s own motion—Invalidity proceedings concerning absolute grounds for refusal—Examination restricted to the submissions of the parties (Council Regulation No 207/2009, Arts 7(1), 52, 55 and 76(1)) (see paras 49-51)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 7 March 2016 (Case R 1984/2015-4) relating to invalidity proceedings between Cop and Conexa.

Operative part

The Court:

1. Dismisses the action;
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)
Judgment of the General Court (Third Chamber) of 14 February 2017 — Pandalis v EUIPO — LR Health & Beauty Systems (Cystus)

(Case T‑15/16)

(EU trade mark — Revocation proceedings — EU word mark Cystus — Partial revocation — Article 51(1)(a) of Regulation (EC) No 207/2009 — No genuine use of the mark)

1. 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 para. 23)

2. Actions for annulment — Grounds — Misuse of powers — Concept (Art. 263 TFEU) (see para. 33)

3. EU trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Genuine use — Concept — Criteria for assessment (Council Regulation No 207/2009, Art. 51(1)(a), and (2)) (see paras 39, 40)

4. EU trade mark — Surrender, revocation and invalidity — Examination of the application — Proof of use of the earlier mark — Genuine use — Concept — Criteria for assessment — Requirement of solid and objective evidence (Council Regulation No 207/2009, Art. 51(1)(a), and (2)) (see para. 41)

5. EU trade mark — Surrender, revocation and invalidity — Causes of revocation — Absence of genuine use of a trade mark — Word mark Cystus (Council Regulation No 207/2009, Art. 51(1)(a), and (2)) (see paras 43-47, 57-60)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 30 October 2015 (Case R 2839/2014-1), relating to revocation proceedings between LR Health & Beauty Systems and Mr Pandalis.

Operative part

The Court:

1. Dismisses the action;
Officials — Members of the temporary staff — Recruitment — Renewal of a fixed-term contract — Administration’s discretion — Administration’s duty to have regard for the interests of officials — Account taken of the interests of the staff member concerned — Judicial review — Limits

(Conditions of Employment of Other Servants of the European Communities, Art. 8)

(see paras 71-74)
EU trade mark — Surrender, revocation and invalidity — Causes of revocation — No genuine use of a trade mark — Use of the mark in a form differing by elements not altering the distinctive character of the mark — Figurative mark GOLD MOUNT

(Council Regulation No 207/2009, Arts 15(1), second subpara., (a), and 51(1)(a))

(see paras 28, 29)
Judicial proceedings — Costs — Taxation — Taxation not capable of taking place until after the decision closing the proceedings

(Rules of Procedure of the General Court, Art. 170)

(see para. 20)