ddrg/super_eurlex huggingface dataset:
115

The Commission points out that the purpose of the investigation in the present case was to examine whether there was any State aid resulting from the compensation granted by Madrid City Council following its failure to comply with the 1998 implementation agreement, to determine whether a prudent market economy operator would have accepted full liability without prior legal advice, given the many legal uncertainties, and to ascertain whether the debt agreed upon by that city council corresponded to the financial exposure which that operator would have accepted for the specific value of plot B-32 in 2011. The decision initiating the procedure and the contested decision were clear in that regard. According to the Commission, it is also necessary to assess the reasons stated for the contested decision having regard to its context and it was not required to reply to all the arguments put forward during the administrative procedure by an interested party. It asserts that, in accordance with the case-law, it stated sufficient reasons for that decision. It adds that the purpose of the investigation was not to determine whether the applicant had received unlawful aid having regard to all the commitments made in the 2011 settlement agreement. It contends that the cases relied upon by the applicant are not relevant and, if the applicant had received a lesser benefit than that which had been agreed upon, it could have claimed the value fixed in the 2011 settlement agreement, which it did not do.
245

Thus, the decision of 16 June 2015 states, inter alia: ‘In addition, with regard to the request for clarification of the legal basis for the dispensation formulated by your lawyers in the letter of 3 June 2015, please note that the EIB, as any other EU institution, enjoys large discretionary powers with regard to the organisation and management of its staff. These include the power to issue a dispensation from service, in particular, in accordance with the case-law, when its administration is faced with incidents incompatible with the good order and tranquillity of the service. The EIB is required to intervene with all the necessary vigour and respond with the rapidity and solicitude required by the circumstances of the case with a view to ascertaining the facts and, consequently, taking the appropriate action in full knowledge of the facts. Accordingly, in such circumstances as in the case at hand, the [EIB], on the one hand, took the urgent interim administrative measures it deemed necessary to restore serene working conditions in accordance with requirements of good administration and duty of care. These measures were adopted with the diligence required from the [EIB] when treating cases concerning individuals. On the other hand, the [EIB] has rapidly tried to establish the relevant facts with regard to the reported situations or accusations in order to decide further measures. Given the nature of the incidents in the present case, the [EIB] has proceeded with particular care. … The present confirmation of your dispensation is principally based on: (a) strong interest of the service which requires [a] formal protective measure from the side of the [EIB] to tackle the situation at your workplace where the relationship between you and your management had become so intolerable that a normal functioning of the service was no longer possible. A restoration of the functioning of the division could no longer be achieved without a separation between you and your direct hierarchy; (b) duty to take into account [the] interest of your management which had felt threatened by your behaviour and were not able to carry out their professional activities any more when you were present in the [EIB]; (c) duty to take into account your interests in the sense that the administration has an obligation not to expose you to the persons against whom you brought allegations.’
55

Secondly, the applicant submits that the Commission misinterprets his email of 4 January 2016 as being based solely on the contract of 16 May 2014 and disregards his argument that it was as a result of his contract of 10 June 2008, and not that of 16 May 2014, that he was in office on 31 December 2013, within the meaning of Article 1(1) of the CEOS. He also submits that the contract of 16 May 2014 did not constitute a new entry into service or a discontinuity in his employment with the result that Articles 21 and 22 of Annex XIII to the Staff Regulations would cease to apply to him. To argue, as the Commission does, that the initial applicability of Articles 21 and 22 of Annex XIII to the Staff Regulations requires not only that the person concerned is in service or in office on the day prior to the entry into force of the new rules, but also that he or she is in service after that date, or that the application of those articles is to be assessed on the basis of the administrative position or contract of the person concerned when his or her situation changes, constitutes an error of law. It is also legally incorrect to consider that any change of status or contract puts an end to being in service or in office, or leads to a break in the continuity of service or duties.
EU budget – Financial regulation – Implementation of the budget – Prohibition on financial actors from taking any measures of implementation where there is a conflict of interests – Concept of conflict of interest – Sharing by an EU official of a commonality of interests with the founder of a company – Included

(Council Regulation No 1605/2002, Art. 52(2); Staff Regulations of Officials, Arts 11 and 12)

(see paras 148-152)
Judgment of the General Court (Sixth Chamber) of 13 December 2017 — Coedo Suárez v Council

(Case T‑4/17)

(Civil service — Civil servants — Automatic retirement — Application for recognition of the occupational origin of the invalidity — Classification of the claim — Reasonable period — Irregularity of the prior administrative procedure — Inadmissibility — Liability)

1. Officials—Pensions—Invalidity pension—Establishing whether a disease results from an official’s occupation—Requirement for an application to this effect from the interested party—No possibility for the administration to make a determination of its own motion (Staff Regulations, Art. 78, fifth para.) (see paras 28, 29, 35)

2. Officials—Social security—Invalidity pension—Declaration of invalidity and its occupational origin—Competence of the Medical Committee—Judicial review—Limits (Staff Regulations, Art. 78) (see para. 30)

3. Officials—Social security—Insurance against the risk of accident and of occupational disease—Invalidity—Separate schemes—Single concept of occupational disease—Recognition of the occupational origin of the disease by the Invalidity Committee—No obligation on the Medical Committee to recognise that same origin (Staff Regulations, Arts 73 and 78) (see para. 32)

4. Actions brought by officials—Prior administrative complaint—Distinction from a request under Article 90(1) of the Staff Regulations—Distinction a matter for assessment by the court (Staff Regulations, Art. 90(1) and (2)) (see para. 35)

5. Officials—Pensions—Invalidity pension—Establishing whether a disease results from an official’s occupation—Requirement for an application to this effect from the interested party—Duty to act within a reasonable time—Criteria for assessment—Point from which time begins to run (Staff Regulations, Arts 73, 78,fifth para. and 90(1), and Annex VIII) (see paras 41-48)

6. Officials—Social security—Insurance against the risk of accident and of occupational disease—Invalidity—Separate schemes—Single concept of occupational disease—Simultaneous applications made under each scheme—Lawfulness (Staff Regulations, Arts 73 and 78) (see para. 52)

7. Officials—Administration’s duty to have regard for the interests of officials—Principle of sound administration—Scope—No obligation for the administration to set aside the time limits for lodging a complaint or bringing an action (Staff Regulations, Arts 90 and 91) (see paras 59, 64)

8. Officials—Non-contractual liability of the institutions—Conditions—Unlawfulness—Damage—Causal link—Cumulative conditions (Art. 340, second para. TFEU) (see para. 70)

Re:

Application based on Article 270 TFEU and seeking, first, annulment of the Council decision of 4 March 2016 refusing to recognise the occupational origin of the applicant’s invalidity and, second, compensation for the damage allegedly suffered by the applicant.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Third Chamber) of 23 January 2018 — avanti v EUIPO (avanti)

(Case T‑250/17)

(EU trade mark — Application for the EU figurative mark avanti — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001))

1. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Meaning—Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 12-15, 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—Flattering promotional formula (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 16)

3. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Figurative mark Avanti (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 19-21, 24-27)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 14 February 2017 (Case R 801/2016-5), concerning an application for registration of the figurative sign Avanti as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
Judgment of the General Court (Seventh Chamber) of 4 May 2018 –

Bernard Krone Holding v EUIPO (Coil Liner)

(Case T‑188/17)

(EU trade mark — Application for EU word mark Coil Liner — Absolute grounds for refusal — Descriptive character — No distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and (c) of Regulation (EU) 2017/1001) — Obligation to state reasons — Article 75, first sentence, of Regulation No 207/2009 (now Article 94(1) of Regulation 2017/1001))

1. EU trade mark—Procedural provisions—Statement of reasons for decisions—Article 75, first sentence, of Regulation No 207/2009—Scope identical to that of Article 296 TFEU (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see para. 21)

2. Actions for annulment—Pleas in law—Infringement of essential procedural requirements—Inadequate statement of reasons—To be considered of the Court’s own motion—Obligation to comply with the audi ateram partem principle (Arts 263 TFEU and 296 TFEU) (see para. 22)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 9 January 2017 (Case R 443/2016 –1) concerning an application for registration of the word mark Coil Liner as an EU trade mark.

Operative part

The Court:

1. Annuls paragraph 2 of the operative part of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 January 2017 (Case R 443/2016–1);
EU trade mark—Surrender, revocation and invalidity—Absolute grounds for invalidity—Registration contrary to Article 7(1)(b) and (c) of Regulation No 207/2009—Word mark TSA LOCK

(Council Regulation No 207/2009, Art. 7(1)(b) and (c))

(see paras 29, 33-40, 50-54)
Case T‑258/17

Sergej Arbuzov

v

Council of the European Union

(Common foreign and security policy — Restrictive measures taken in view of the situation in Ukraine — Freezing of funds — List of persons, entities and bodies subject to the freezing of funds and economic resources — Maintenance of the applicant’s name on the list — Obligation to state reasons — Manifest error of assessment)

Summary — Judgment of the General Court (Sixth Chamber), 6 June 2018

Acts of the institutions — Statement of reasons — Obligation — Scope — Restrictive measures against certain persons and entities in view of the situation in Ukraine — Freezing of funds of persons involved in the misappropriation of public funds — Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him — Whether summary statement of reasons sufficient — Limits — Statement of reasons not capable of consisting of a general and stereotyped formulation (Art. 296, second para. TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Council Decision (CFSP) 2017/381)

European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures taken having regard to the situation in Ukraine — Ambit of the review — Proof the measure well-founded — Obligation on the competent EU authority to establish, in the event of challenge, that the grounds held against the persons or entities concerned well-founded (Charter of Fundamental Rights of the European Union, Arts 41 and 47; Council Decision (CFSP) 2017/381)

Common foreign and security policy — Restrictive measures against certain persons and entities in view of the situation in Ukraine — Freezing of funds of persons involved in the misappropriation of public funds — Nature of those measures — Purely protective measures — No criminal character (Arts 21(2)(b) TEU and 29 TEU; Council Decisions 2014/119/CFSP, Recitals 1 and 2 and (CFSP) 2017/381)
Judgment of the General Court (First Chamber) of 3 July 2018 –

Vienna International Hotelmanagement v EUIPO (Vienna House and VIENNA HOUSE)

(Cases T‑402/17 and T‑403/17)

(EU trade mark — Applications for EU word mark Vienna House and figurative mark VIENNA HOUSE — Absolute ground for refusal — Descriptive character — Not distinctive — Article 7(1(b) and (c) of Regulation (EC) No 207/2009 (now Article 7(1(b) and (c) of Regulation 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—Aim—Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 23)

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—Assessment of the descriptive nature of a sign—Criteria (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 24, 25, 27, 43, 44)

3. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Meaning—Neologism consisting of elements descriptive of characteristics of the goods or services concerned—Whether included where the nature of the combination is not unusual (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 26)

4. EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service—Word marks Vienna House and figurative marks VIENNA HOUSE (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 34, 38, 45, 48)

5. 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—Not included (Council Regulation No 207/2009, Art. 65) (see para. 36)

6. EU trade mark—Decisions of the Office—Legality—Examination by the EU judicature—Criteria (Council Regulation No 207/2009) (see para. 47)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 25 April 2017 (Cases R 333/2016-4 and R 332/2016-4) concerning applications for registration of, on the one hand, the word sign Vienna House and, on the other, the figurative sign VIENNA HOUSE as EU trade marks.

Operative part

The Court:

1. Orders the joinder of Cases T‑402/17 and T‑403/17 for the purposes of the present judgment;

2. Dismisses the actions;
Judgment of the General Court (First Chamber) of 12 June 2018 –

Fenyves v EUIPO (Blue)

(Case T‑375/17)

(EU trade mark — Application for the EU figurative mark Blue — Absolute ground for refusal — Descriptive character — No distinctive character — Article 7(1)(c) and (2) of Regulation (EC) No 207/2009 (now Article 7(1)(c) and (2) of Regulation (EU) 2017/1001) — Article 7(1)(b) of Regulation No 207/2009 (now Article 7(1)(b) of Regulation 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 (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 14, 15, 28)

2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods or services — Aim — Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 22)

3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods or services — Figurative mark Blue (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 33, 37, 42, 43, 46)

4. EU trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — EUIPO’s previous decision-making practice — Principle of legality (Council Regulation No 207/2009) (see paras 39-41)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 27 March 2017 (Case R 1974/2016-5), relating to an application for registration of the figurative sign Blue as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;
The institutions have a wide discretion in deciding upon the criteria of ability required for the posts to be filled and in specifying, on the basis of those criteria and in the interests of the service, the conditions and procedure for organising a competition. However, the exercise of the discretion enjoyed by the institutions with respect to the holding of competitions, in particular as regards setting the conditions for admission, must be compatible with the mandatory provisions of the first paragraph of Article 27 and of Article 29(1) of the Staff Regulations. The terms in which the first paragraph of Article 27 of the Staff Regulations defines the aim of any recruitment and in which Article 29(1) of the Staff Regulations lays down the framework of the procedures to be followed to fill vacant posts are mandatory. That power must therefore always be exercised in the light of the requirements of the positions to be filled and, more generally, of the interests of the service.

Specifically as regards conditions limiting the registration of candidates for a competition, although such conditions are indeed liable to restrict the ability of the institutions to recruit the best candidates for the purposes of the first paragraph of Article 27 of the Staff Regulations, it does not follow that any condition containing such a restriction is contrary to that provision. The administration’s discretion in the organisation of competitions, and more generally in the interests of the service, allows the institution to impose the conditions which it considers to be appropriate and which, while restricting access of candidates to a competition, and thus, necessarily the number of candidates registered, do not, however, entail the risk of compromising the objective of ensuring the registration of candidates of the highest standard of ability, efficiency and integrity within the meaning of the first paragraph of Article 27 of the Staff Regulations.

Accordingly, it is only conditions limiting access of candidates to a competition that entail a risk of compromising the objective of ensuring the registration of candidates of the highest standard that are held to be contrary to the first paragraph of Article 27 of the Staff Regulations.

Furthermore, in view of the institutions’ wide discretion in this field, review by the General Court of whether the institution has complied with the condition relating to the interests of the service must be confined to the question of whether the institution remained within reasonable and proper bounds and did not manifestly misuse its discretion.

(see paras 36-38, 40, 41)
It is apparent from the applicable case-law of the Court, by analogy, to Article 51(1)(b) of Regulation No 207/2009 on the European Union trade mark that that article addresses the situation where the mark is no longer capable of fulfilling its function of an indication of origin.

Among the various functions of a trade mark, that of an indication of origin plays an essential part. It serves to identify the goods or services covered by the mark as originating from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings. That undertaking is that under the control of which the goods or services are marketed.

That essential function of trade marks has been incorporated by the European Union legislature into Article 4 of Regulation No 207/2009, which provides that signs capable of being represented graphically may constitute a trade mark provided that they are capable of distinguishing the goods or services of one undertaking from those of other undertakings.

Thus, while Article 7 of Regulation No 207/2009 specifies circumstances in which the mark is from the outset incapable of fulfilling its function of an indication of origin, Article 51(1)(b) of that regulation concerns the situation in which the use of a mark has become so widespread that the sign constituting that mark has come to designate the kind, the type or the nature of the goods or services covered by the registration rather than the specific goods or services originating from a particular undertaking. The mark, having become the common name of a product, has therefore lost its distinctive character, with the result that it no longer fulfils that function.

The rights conferred on the proprietor of a mark under Article 9 of Regulation No 207/2009 may then be revoked provided, first, that that mark has become, in the trade, a common name for a product or service for which it is registered and, second, that that transformation is due to acts or inactivity of that proprietor. Those conditions are cumulative.

(see paras 22-26)
EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Separate examination of the various grounds for refusal—Overlapping of the scope of the grounds set out in Article 7(1)(b) and (c) and (3) of Regulation No 207/2009

(Council Regulation No 207/2009, Art. 7(1)(b) and c))

(see para. 42)
EU budget — Financial regulation — Award of pre-financing — Obligation to lodge a bank guarantee — Inapplicability in the event of low value grants — Concept of low value grants

(European Parliament and Council Regulation No 966/2012, Art. 134(1); Commission Regulation No 1268/2012, Arts 185 and 206(1))

(see paras 23-27)
EU trade mark — Procedural provisions — Statement of reasons for decisions — First sentence of Article 75 of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU

(Art. 296 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(2)(c); Council Regulation No 207/2009, Art. 75, first sentence)

(see para. 66)