ddrg/super_eurlex huggingface dataset:
JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

8 January 2003

Joined Cases T-94/01, T-152/01 and T-286/01

Astrid Hirsch and Others

v

European Central Bank

‛Officials — Members of staff of the European Central Bank — Article 19 of the Conditions of Employment — Education allowance — Refusal to grant it to members of staff not entitled to the expatriation allowance under Article 17 of those conditions — Principle of nondiscrimination’

Full text in German II-1

Full text in English II-27

Application for:

annulment, in Case T-94/01, of the decision of the European Central Bank of 25 September 2000 refusing to grant the applicant an education allowance to cover the costs of attendance by her son at the International School Frankfurt, in Case T-52/0, of the decision of the European Central Bank of 5 February 200 refusing to grant the applicant an education allowance in respect of his two sons and, in Case T-286/0, of the decision of the European Central Bank of 6 June 200 refusing to grant the applicant an education allowance in respect of his children.

Held:

Cases T-94/01, T-152/01 and T-286/01 are joined for the purposes of judgment. In Case T-94/01: the decision of the European Central Bank of 25 September 2000 is annulled; the remainder of the action is dismissed; the European Central Bank is ordered to pay the costs. In Case T-152/01: the decision of the European Central Bank of 15 February 2001 is annulled; the remainder of the action is dismissed; the European Central Bank is ordered to pay the costs. In Case T-286/01: the decision of the European Central Bank of 6 June 2001 is annulled; the remainder of the action is dismissed; the European Central Bank is ordered to pay the costs.

Summary
JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)

19 March 2003

Joined Cases T-188/01, T-189/01 and T-190/01

Vassilios Tsarnavas

v

Commission of the European Communities

‛Officials — Admissibility — Promotion — Consideration of comparative merits of officials from different services’

Full text in French II-495

Application for:

the annulment of the decisions of the Commission not to promote the applicant in the 1998, 1999 and 2000 promotions procedures.

Held:

The decisions of the Commission not to promote the applicant in the 1998, 1999 and 2000 promotions procedures are annulled. The application in Case T-190/01 is dismissed as inadmissible. The Commission is ordered to pay the costs in Cases T-188/01 and T-189/01. The parties are ordered to bear their own costs in Case T-190/01.

Summary

Officials — Promotion — Consideration of comparative merits — Rules — Discretion of the administration — Need for the Promotion Committee to consider all officials eligible for promotion in the institution, even though prior consideration within the various administrative units is permissible

In the case of acts or decisions drawn up in a procedure involving several stages, and particularly at the end of an internal procedure, it is only those measures which definitively determine the position of the institution upon the conclusion of that procedure which are open to challenge and not intermediate measures whose purpose is to prepare for the final decision. In the case of the promotions procedure, it is the list of officials promoted which constitutes the act that is open to challenge. It is on publication of that list that the officials who considered themselves eligible for promotion learn, in a manner which is final and not open to doubt, of the assessment of their respective merits, and that their legal position is affected. It follows that, in a case where an official disputes the list of officials put forward for promotion, the Promotion Committee's decision not to uphold his objection, even if it may have some influence on the promotion decision, constitutes a preparatory act which does not adversely affect an official within the meaning of Article 90(2) of the Staff Regulations. Nor is the official concerned adversely affected by the letter in which the chairman of the Promotion Committee informs him, after the list of officials promoted has been published, of the Committee's decision not to uphold his objection. (see paras 72-73, 78, 80) See: T-17/90, T-28/91 and T-17/92 Camara Alloisio and Others v Commission [1993] ECR II-841, para. 39; T-144/95 Michael v Commission [1996] ECRSC I-A-529 and II-1429, para. 30; T-187/98 Cubero Vermurie v Commission [2000] ECRSC I-A-195 and II-885, para. 28
Keywords

Summary



Keywords

1. Community trade mark – Observations of third parties and opposition – Examination of the opposition – Scope – Similarity of the goods and services concerned – Analysis to be made in relation to all the goods and services covered by registration

(Council Regulation No 40/94, Art. 8(1)(b))

2. Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the holder of an earlier identical or similar mark registered for identical or similar goods or services – Risk of confusion with the earlier mark – Word marks ‘M+M EUROdATA’ and ‘EURODATA TV’

(Council Regulation No 40/94, Art. 8(1)(b))

Summary

1. In opposition proceedings brought by the holder of an earlier mark, on the basis of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark, the examination of any similarity between the goods and services concerned must be carried out with reference to the list of services registered in respect of each sign in question. In this regard, the contemplated use in a particular sector or on a particular market of a trade mark for which registration is sought cannot be taken into account where that registration cannot entail a restriction to that effect.

(see para. 58)

2. For the target public, consisting of people in business likely to be interested in and attentive to the signs in question, there is no likelihood of confusing the word sign ‘M+M EUROdATA’, which it is sought to register as a Community trade mark for ‘market research, market analysis and trade research, services offering advice to businesses in the sphere of marketing and distribution’ and ‘seminars and other kinds of continuing training in marketing and distribution’ services falling within Classes 35 and 41 under the Nice Agreement with the trade mark ‘EURODATA TV’ previously registered in France as an international trade mark for ‘Gathering and supply of commercial information, more especially opinion surveys and polls in the audiovisual realm’ services under Class 35, and in Ireland for ‘Gathering and supply of commercial information’; commercial enquiries; advertising services; advising and assisting industrial or commercial undertakings; preparation and supply of trade statistics; marketing studies; market research and analysis’, falling within Class 35 under the Nice Agreement.

Although the services covered by the application for a trade mark under Class 35 are identical to those protected by the earlier mark under the same class, and the services covered by the application for a trade mark under Class 41 are similar to those protected by the earlier mark under Class 35, the visual, aural and conceptual differences between the signs at issue constitute sufficient grounds for holding that there is no likelihood of confusion in the mind of the targeted public.

(see paras 52, 57, 60, 63, 74, 80, 85)
Case T-237/01





Alcon Inc.

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)





«(Community trade mark – Annulment proceedings – BSS – Article 51 of Regulation (EC) No 40/94 – Absolute ground for refusal – Article 7(1)(d) of Regulation No 40/94 – Distinctive character acquired through use – Articles 7(3) and 51(2) of Regulation No 40/94)»

Judgment of the Court of First Instance (Second Chamber), 5 March 2003

Summary of the Judgment

1.. Community trade mark – Definition and acquisition of a Community trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications which have become customary in the current language or in the bona fide and established practices of the trade – Customary nature – Assessment criteria

(Council Regulation No 40/94, Art. 7(1)(d))

2.. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of distinctive character, descriptive and customary marks – Exception – Acquisition of distinctiveness through use – Assessment criteria

(Council Regulation No 40/94, Art. 7(1)(b), (c) and (d) and (3))

3.. Community trade mark – Definition and acquisition of a Community trade mark – Absolute grounds for refusal – Customary mark – Exception – Acquisition of distinctiveness through use – Determined by reference to the perception of the target public – Initiatives taken by the proprietor – Condition for their being taken into account

(Council Regulation No 40/94, Art. 7(1)(d) and (3))

4.. Community trade mark – Withdrawal, annulment and invalidity – Grounds for absolute invalidity – Registration contrary to Article 7(1)(d) of Regulation No 40/94 – No acquisition of distinctiveness through use – BSS

(Council Regulation No 40/94, Arts 7(1)(d) and (3), 51(1)(a) and 51(2))

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Case T-93/01





A. Seisenbacher GmbH

v

Commission of the European Communities





«(Arbitration clause – Contract for improvement work on the Commission building in Kiev (Ukraine) – Additional clauses – Parties to the contract)»

Judgment of the Court of First Instance (Second Chamber), 11 June 2003

Summary of the Judgment
Case T-217/01





Forum des migrants de l'Union européenne

v

Commission of the European Communities





«(Community financial support – Operating costs – Decision to terminate financial support – Principle of sound financial management – Interpretation of the conditions of support – Rights of the defence – Protection of legitimate expectations)»

Judgment of the Court of First Instance (Fourth Chamber), 9 April 2003

Summary of the Judgment

1.. Community law – Principles – Rights of the defence – Compliance when the Commission adopts a decision to terminate Community financial support



2.. Acts of the institutions – Statement of reasons – Obligation – Scope – Reference to a document annexed – Whether permissible

(Art. 253 EC)

3.. Community law – Principles – Protection of legitimate expectations – Protection refused to person committing a manifest infringement of the rules in force



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2.

3.
Case T-47/01





Co-Frutta Soc. coop. rl

v

Commission of the European Communities





«(Action for annulment – Access to documents – Decision 94/90/ECSC, EC, Euratom – Refusal – Authorship rule – Misuse of powers)»

Judgment of the Court of First Instance (Fifth Chamber), 16 October 2003

Summary of the Judgment

1.. Actions for annulment – Actionable measures – Definition – Measures with binding legal effects – Preparatory measures – Exclusion – Secretary-General's decision replacing an initial statement of position in the context of an application for access to Commission documents – Included

(Art. 230 EC; Commission Decision 94/90, Art. 2(2))

2.. Commission – Right of public access to Commission documents – Decision 94/90 – Exceptions to the principle of access to documents – Authorship rule – Scope – Collection by the Commission, in a single computer database, of data notified by the Member States

(Commission Decision 94/90)

3.. Commission – Right of public access to Commission documents – Decision 94/90 – Exceptions to the principle of access to documents – Authorship rule – To be narrowly construed – Documents on which the decision-making process is based

(Commission Decision 94/90)

4.. Commission – Right of public access to Commission documents – Decision 94/90 – Exceptions to the principle of access to documents – Authorship rule – Documents from the Member States – Difficulties in gaining access to documents by applying to the Member States – Not relevant

(Commission Decision 94/90)

5.. Commission – Right of public access to Commission documents – Decision 94/90 – Exceptions to the principle of access to documents – Authorship rule – Possibility of relying on Regulation No 1049/2001 to justify a strict construction of that rule – Not possible

(Regulation No 1049/2001 of the European Parliament and of the Council; Commission Decision 94/90)

6.. Commission – Right of public access to Commission documents – Decision 94/90 – Review of initial refusal – Discrepancy in the reasoning – Misuse of powers – None

(Art. 230 EC; Commission Decision 94/90)

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5.

6.
Joined Cases T-64/01 and T-65/01





Afrikanische Frucht-Compagnie GmbH and Internationale Fruchtimport Gesellschaft Weichert & Co.

v

Council of the European Union and Commission of the European Communities





«(Common organisation of the markets – Bananas – Imports from ACP States and third countries – Reference quantity – Regulations (EC) Nos 1924/95 and 2362/98 – Action for compensation)»

Judgment of the Court of First Instance (Fifth Chamber), 10 February 2004

Summary of the Judgment

1.. Non-contractual liability – Conditions – Sufficiently serious breach of a superior rule of law for the protection of individuals – No discretion for institution – Mere infringement of Community law sufficient

(Art. 288, second para., EC)

2.. Agriculture – Common organisation of the markets – Bananas – Import arrangements – Tariff quota – Opening and allocation of the quota – Transitional measures as a result of the accession of Austria, Finland and Sweden – Regulation No 1924/95 – Application only within the context of the arrangement established by Regulation No 1442/93 – Application until abolition of the latter regulation

(Council Regulation No 404/93; Commission Regulations Nos 1442/93, 1924/95, Art. 6, and 2362/98)

3.. Agriculture – Common organisation of the markets – Bananas – Import arrangements – Tariff quota – Opening and allocation of the quota – Allocation of rights to import licences – Determination of criteria – Principle of the protection of legitimate expectations – Infringement – None

(Council Regulation No 404/93; Commission Regulation No 1442/93)

4.. Agriculture – Common organisation of the markets – Bananas – Import arrangements – Tariff quota – Opening and allocation of the quota – Regulation No 2362/98 – Taking into account of imports actually carried out during a reference period prior to its publication – Infringement of the principle of legal certainty – None

(Commission Regulations Nos 1442/93 and 2362/98)

5.. Agriculture – Common organisation of the markets – Bananas – Import arrangements – Tariff quota – Regulations – Procedure by which they are drawn up – Distinction between basic regulations and implementing regulations – Powers conferred by the Council on the Commission in general terms – Lawfulness

(EC Treaty, Art. 155, fourth indent (now Art. 211, fourth indent, EC); Council Regulation No 404/93, Art. 19(1))

6.. Non-contractual liability – Conditions – Lawful act – Real damage, causal link and unusual and special damage – Cumulative nature

(Art. 288, second para., EC)

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JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

18 November 2003

Case T-13/02

Falk-Ulrich von Hoff

v

European Parliament

‛Officials — Temporary staff — Installation allowance — Change in place of employment — Default interest’

Full text in German II-1387

Application for:

first, annulment of the decision of the European Parliament of 17 April 2001 refusing to grant the applicant an installation allowance in connection with the change in his place of employment and, second, an order that the European Parliament pay to the applicant an installation allowance amounting to two months' basic salary, together with interest at 8% from the date of the application.

Held:

The decision of the Parliament of 17 April 2001 refusing to grant the applicant an installation allowance is annulled. The Parliament is ordered to pay the applicant the installation allowance provided for by Article 5 of Annex VII to the Staff Regulations, amounting to two months' basic salary, together with default interest from 24 January 2002. The interest rate to be applied shall be two points higher than the rate fixed by the European Central Bank for principal refinancing operations applicable during the period concerned. The Parliament is ordered to bear all the costs.

Summary

Officials — Reimbursement of expenses — Installation allowance — Change in place of employment — Family having established its residence at the new place of employment by reason of the change, but prior to it — No effect

(Staff Regulations, Art. 20; Annex VII, Art. 5(2) and (4))

Under the terms of Article 5(2) of Annex VII to the Staff Regulations an installation allowance is payable where an official is transferred to a new place of employment and is thereby obliged to change his place of residence in order to comply with Article 20 of the Staff Regulations. That provision refers to the causal link that must exist between the official's change of post and his change of residence. However, it does not establish a predetermined time sequence for the respective dates of, first, the adoption or implementation of the decision to change the place of employment and, second, the actual change of residence. Thus, where it is as a result of the imminence of the official's posting to a new place of employment that his family takes up residence there, his family may physically move to the new residence before the formal decision on the posting is adopted, without having the effect of depriving the official of the allowance in question pursuant to the rule, set out in Article 5(4), that the official is not entitled to the installation allowance if he is posted to the place where his family resides.

(see paras 34. 38. 46)
JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

30 September 2003

Case T-302/02

Michael Kenny

v

Court of Justice of the European Communities

‛Officials — Appointment — Discretion of the appointing authority — Interests of the service’

Full text in French II-1137

Application for:

annulment of the decision of the appointing authority of 11 March 2002 rejecting the applicant's candidature for the administrator's post referred to in notice of vacancy CJ 62/01.

Held:

The action is dismissed. The parties are ordered to bear their own costs.

Summary

Officials — Notice of vacant post — Purpose — Consideration of comparative merits — Discretion of the appointing authority — Limits — Compliance with the conditions laid down in the notice of vacancy — Consideration of the personality of candidates — Permissible — Judicial review — Limits

Officials — Decision affecting the administrative status of an official — Consideration of documents not contained in personal file — Not permissible — Limits — Consideration, for transfer or promotion, of comparative assessment of the abilities of candidates carried out by immediate superiors on the basis of facts known to those concerned and which they could have disputed

In a promotion procedure, and similarly in a transfer procedure, the appointing authority is required to make its choice on the basis of a consideration of the comparative merits of the candidates and of the reports on them. To that end, it has power under the Staff Regulations to undertake such consideration according to the procedure or method which it considers to be the most appropriate, which may include an interview between the candidate and his potential immediate superior, when the candidate may be asked questions deemed to be relevant; the review by the Court must be confined to whether it has exercised its power in a manifestly erroneous manner. (see para. 24) See: 62/75 De Wind v Commission (1976) ECR 1167. para. 17: T-53/91 Mergen v Commission [1992] ECR II-2041. para. 30
JUDGMENT OF THE COURT OF FIRST INSTANCE (Single Judge)

10 December 2003

Case T-173/02

Pierre Tomarchio

v

Commission of the European Communities

‛Officials — Classification in grade — Rejection of an application for reclassification under Article 31(2) of the Staff Regulations’

Full text in French II-1567

Application for:

annulment of the Commission's decision rejecting the applicant's application for regrading in the higher grade of his career bracket of recruitment.

Held:

The Commission's decision of 27 July 2001 rejecting the applicant's application for regrading in the higher grade of his career bracket of recruitment is annulled. The Commission is ordered to pay all the costs.

Summary

Officials — Competition — Conditions of admission — Category B posts — Requirement of prior completion of full secondary education and possession of a leaving certificate giving access to university — Stricter requirement than that for the performance of category B duties — Permissible — Condition — Express reference in notice of competition (Staff Regulations, Art. 5(1)) Officials — Recruitment — Classification in grade — Factors to be taken into consideration — Application for reclassification — Account taken of studies completed before recruitment, but for which a diploma was not awarded until after recruitment — Permissible (Staff Regulations, Art. 31(2))
Keywords

Summary



Keywords

1. Community trade mark – Definition and acquisition of the Community trade mark – Signs capable of constituting a mark – Signs also used as advertising slogans – Condition – Distinctive character

(Council Regulation No 40/94, Art. 7(1)(b))

2. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character – Word sign ‘Mehr für Ihr Geld’

(Council Regulation No 40/94, Art. 7(1)(b))

Summary

1. Registration, under Regulation No 40/94 on the Community trade mark, of a trade mark which consists of signs or indications that are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by that mark is not excluded as such by virtue of such use. However, a sign which fulfils functions other than that of a trade mark in the traditional sense of the term is distinctive for the purposes of Article 7(1)(b) of Regulation No 40/94 only if it may be perceived immediately as an indication of the commercial origin of the goods or services in question, so as to enable the relevant public to distinguish, without any possibility of confusion, the goods or services of the owner of the mark from those of a different commercial origin.

(see para. 25)

2. Under Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, the word sign ‘Mehr für Ihr Geld’, registration of which is sought for cleaning materials and food for everyday consumption in Classes 3, 29 and 30 of the Nice Agreement, is devoid of any distinctive character. The mark applied for will be perceived immediately by the target public, which is German-speaking, as a mere promotional formula or a slogan which indicates that the goods in question offer consumers an advantage in terms of quantity and/or quality as against competing goods. In that regard, the element ‘Mehr’ (‘more’) is laudatory for the sake of advertising, the purpose being to highlight the positive qualities of the goods or services for the presentation of which that element is used.

(see paras 27, 29, 34)