# Official Journal C 462/12 D

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 462 |
| | |
| English edition | Information and Notices | Volume 5912 December 2016 |

ISSN 1977-091X

Official Journal

of the European Union

C 462

English edition

Information and Notices

Volume 5912 December 2016

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2016/C 462/01 | Last publications of the Court of Justice of the European Union in the Official Journal of the European Union | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2016/C 462/01

Last publications of the Court of Justice of the European Union in the Official Journal of the European Union

Official Journal of the European Union

1

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| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2016/C 462/02 | Case C-601/14: Judgment of the Court (Grand Chamber) of 11 October 2016 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2004/80/EC — Article 12(2) — National compensation schemes for victims of violent intentional crime guaranteeing fair and appropriate compensation — National scheme not covering all violent intentional crimes committed on the national territory) | 2 |
| 2016/C 462/03 | Case C-92/15: Judgment of the Court (Eighth Chamber) of 12 October 2016 (request for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium) — Sven Mathys v De Grave Antverpia NV (Reference for a preliminary ruling — Directive 96/75/EC — Systems of chartering and pricing in inland waterway transport — Scope — Article 1(b) — Carrier — Article 2 — Freedom to conclude contracts and negotiate prices) | 3 |
| 2016/C 462/04 | Case C-166/15: Judgment of the Court (Third Chamber) of 12 October 2016 (request for a preliminary ruling from the Rīgas apgabaltiesas Krimināllietu tiesu kolēģija — Latvia) — Criminal proceedings against Aleksandrs Ranks, Jurijs Vasiļevičs (Reference for a preliminary ruling — Intellectual property — Copyright and related rights — Directive 91/250/EEC — Article 4(a) and (c) — Article 5(1) and (2) — Directive 2009/24/EC — Article 4(1) and (2) — Article 5(1) and (2) — Legal protection of computer programs — Resale of used licensed copies of computer programs on non-original material media — Exhaustion of the distribution right — Exclusive right of reproduction) | 3 |
| 2016/C 462/05 | Case C-185/15: Judgment of the Court (Third Chamber) of 12 October 2016 (request for a preliminary ruling from the Vrhovno sodišče — Slovenia) — Marjan Kostanjevec v F&S Leasing GmbH (Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Article 6(3) — Definition of counterclaim — Claim based on unjust enrichment — Payment of a sum due under a decision that has been set aside — Temporal application) | 4 |
| 2016/C 462/06 | Case C-231/15: Judgment of the Court (Second Chamber) of 13 October 2016 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — Prezes Urzędu Komunikacji Elektronicznej, Petrotel sp. z o.o. w Płocku v Polkomtel sp. z o.o. (Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/21/EC — Article 4(1) — Right of appeal against a decision taken by a national regulatory authority — Effective appeal mechanism — Decision of a national regulatory authority to continue to apply pending the outcome of the appeal — Temporal effects of a decision of a national court annulling a decision of a national regulatory authority — Possibility of annulling a decision of the national regulatory authority with retroactive effect — Principles of legal certainty and protection of legitimate expectations) | 5 |
| 2016/C 462/07 | Case C-242/15 P: Judgment of the Court (Sixth Chamber) of 12 October 2016 — Land Hessen v Pollmeier Massivholz GmbH & Co. KG, European Commission (Appeal — State aid — State measures concerning the establishment of a sawmill in the Land of Hessen — Decision finding no State aid — Failure to initiate the formal investigation procedure — Serious difficulties — Calculation of the aid element of State guarantees — Commission Notice on State aid in the form of guarantees) | 5 |
| 2016/C 462/08 | Case C-277/15: Judgment of the Court (First Chamber) of 13 October 2016 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Servoprax GmbH v Roche Diagnostics Deutschland GmbH (Reference for a preliminary ruling — Approximation of laws — In vitro diagnostic medical devices — Directive 98/79/EC — Parallel imports — Translation by the importer of the information and instructions for use provided by the manufacturer — Supplementary conformity assessment procedure) | 6 |
| 2016/C 462/09 | Case C-294/15: Judgment of the Court (Second Chamber) of 13 October 2016 (request for a preliminary ruling from the Sąd Apelacyjny w Warszawie — Poland) — Edyta Mikołajczyk v Marie Louise Czarnecka, Stefan Czarnecki (Reference for a preliminary ruling — Judicial cooperation in civil matters — Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility — Regulation (EC) No 2201/2003 — Article 1(1)(a) — Material scope — Action for annulment of marriage brought by a third party after the death of one of the spouses — Article 3(1) — Jurisdiction of the courts of the Member State of residence of the applicant — Scope) | 6 |
| 2016/C 462/10 | Case C-303/15: Judgment of the Court (First Chamber) of 13 October 2016 (request for a preliminary ruling from the Sąd Okręgowy w Łodzi — Poland) — Naczelnik Urzędu Celnego I w Łodzi v G. M., M. S. (Reference for a preliminary ruling — Technical regulations in the gambling sector — Directive 98/34/EC — Concept of technical regulation — Obligation on Member States to notify the European Commission of all draft technical regulations — Inapplicability of rules classifiable as technical regulations not notified to the Commission) | 7 |
| 2016/C 462/11 | Case C-340/15: Judgment of the Court (Third Chamber) of 12 October 2016 (request for a preliminary ruling from the Bundesfinanzgericht — Austria) — Christine Nigl and Others v Finanzamt Waldviertel ((Reference for a preliminary ruling — Taxation — Value added tax — Sixth Directive 77/388/EEC — Article 4(1) and (4) — Directive 2006/112/EC — Articles 9 and 11 — Concept of taxable person — Civil-law partnerships selling their products under a common trade mark and through a limited company — Concept of independent undertaking — Refusal of the status of taxable person — Retroactivity — Sixth Directive 77/388 — Article 25 — Directive 2006/112 — Articles 272 and 296 — Flat-rate scheme for farmers — Exclusion from the flat-rate scheme — Retroactivity) | 8 |
| 2016/C 462/12 | Case C-510/16: Request for a preliminary ruling from the Conseil d’État (France) lodged on 29 September 2016 — Carrefour Hypermarchés SAS, Fnac Paris, Fnac Direct, Relais Fnac, Codirep, Fnac Périphérie v Minister for Finance and Public Accounts | 9 |
| 2016/C 462/13 | Case C-516/16: Request for a preliminary ruling from the Bundesverwaltungsgericht (Austria) lodged on 3 October 2016 — Erzeugerorganisation Tiefkühlgemüse e. Gen. v Agrarmarkt Austria | 10 |
| 2016/C 462/14 | Case C-518/16: Request for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 4 October 2016 — ZPT AD v Narodno sabranie na Republika Bulgaria, Varhoven administrativen sad, Natsionalna agentsia za prihodite | 12 |
| | General Court |
| 2016/C 462/15 | Case T-515/12: Judgment of the General Court of 27 October 2016 — El Corte Inglés v EUIPO — English Cut (The English Cut) (EU trade mark — Opposition proceedings — Application for EU word mark The English Cut — Earlier EU figurative and national word marks El Corte Inglés — Relative ground for refusal — Article 8(5) of Regulation (EC) No 207/2009 — Reputation) | 14 |
| 2016/C 462/16 | Case T-787/14 P: Judgment of the General Court of 27 October 2016 — ECB v Cerafogli (Appeal — Civil service — ECB Staff — Access to documents — Documents relating to the dispute between the parties in the proceedings — Partial refusal of access — Rule of correspondence between the application and the complaint — Plea of illegality) | 14 |
| 2016/C 462/17 | Case T-123/15: Judgment of the General Court of 28 October 2016 — Unicorn v EUIPO — Mercilink Equipment Leasing (UNICORN-čerpací stanice) (EU trade mark — Opposition proceedings — Application for the EU word mark UNICORN-čerpací stanice — Earlier national word and figurative marks UNICORN — Relative ground for refusal — Reputation — Article 8(5) of Regulation (EC) No 207/2009) | 15 |
| 2016/C 462/18 | Case T-124/15: Judgment of the General Court of 28 October 2016 — Unicorn v EUIPO — Mercilink Equipment Leasing (UNICORN) (EU trade mark — Opposition proceedings — Application for the EU figurative mark UNICORN — Earlier national word and figurative marks UNICORN and earlier national figurative mark representing a unicorn’s head — Relative ground for refusal — Reputation — Article 8(5) of Regulation (EC) No 207/2009) | 16 |
| 2016/C 462/19 | Case T-125/15: Judgment of the General Court of 28 October 2016 — Unicorn v EUIPO — Mercilink Equipment Leasing (UNICORN) (EU trade mark — Opposition proceedings — Application for the EU figurative mark UNICORN — Earlier national word and figurative marks UNICORN and earlier national figurative mark representing a unicorn’s head — Relative ground for refusal — Reputation — Article 8(5) of Regulation (EC) No 207/2009) | 16 |
| 2016/C 462/20 | Case T-153/15: Judgment of the General Court of 26 October 2016 — Hamcho and Hamcho International v Council (Common foreign and security policy — Restrictive measures against Syria — Freezing of funds — Annulment of the earlier measures by a judgment of the General Court — New measures including the names of the applicants on the lists — Action for annulment — Article 76(d) of the Rules of Procedure — Content of the application — Admissibility — Obligation to state reasons — Burden of proof — Right to property — Freedom to conduct business) | 17 |
| 2016/C 462/21 | Case T-154/15: Judgment of the General Court of 26 October 2016 — Jaber v Council (Common Foreign and Security Policy — Restrictive measures taken against Syria — Freezing of funds — Annulment of prior measures by a judgment of the General Court — New measures including the applicant's name on the lists — Action for annulment — Article 76(d) of the Rules of Procedure — Content of the application — Admissibility — Obligation to state reasons — Burden of proof — Right to property — Freedom to conduct a business) | 18 |
| 2016/C 462/22 | Case T-155/15: Judgment of the General Court of 26 October 2016 — Kaddour v Council (Common Foreign and Security Policy — Restrictive measures taken against Syria — Freezing of funds — Annulment of prior measures by a judgment of the General Court — New measures including the applicant's name on the lists — Action for annulment — Article 76(d) of the Rules of Procedure — Content of the application — Admissibility — Obligation to state reasons — Burden of proof — Right to property — Freedom to conduct a business) | 18 |
| 2016/C 462/23 | Case T-201/15: Judgment of the General Court of 28 October 2016 — Unicorn v EUIPO — Mercilink Equipment Leasing (UNICORN) (EU trade mark — Invalidity proceedings — EU word mark UNICORN — Earlier national word and figurative marks UNICORN — Article 53(1)(a) and Article 8(5) of Regulation (EC) No 207/2009 — Reputation) | 19 |
| 2016/C 462/24 | Case T-309/15 P: Judgment of the General Court of 27 October 2016 — CW v Parliament (Appeal — Civil service — Officials — Psychological harassment — Duty of the administration to provide assistance — Article 24 of the Staff Regulations — Request for assistance — Provisional distancing measures — Duty to have regard for the welfare of staff — Responsibility — Claim for damages — Decision rejecting the administrative complaint — Distortion of the evidence — Error of law) | 20 |
| 2016/C 462/25 | Case T-493/15 P: Judgment of the General Court of 27 October 2016 — Commission v CX (Appeal — Civil Service — Officials — Disciplinary procedure — Disciplinary sanction — Removal from post — Right to be heard — Article 22 of Annex IX to the Staff Regulations — Errors of law — Distortion of the evidence — Incomplete examination of the facts and evidence) | 20 |
| 2016/C 462/26 | Case T-625/15: Judgment of the General Court of 27 October 2016 — Spa Monopole v EUIPO — YTL Hotels & Properties (SPA VILLAGE) (European Union trade mark — Opposition proceedings — Application for the European Union word mark SPA VILLAGE — Earlier Benelux word mark SPA — Relative ground for refusal — Article 8(5) of Regulation (EC) No 207/2009) | 21 |
| 2016/C 462/27 | Case T-7/16: Judgment of the General Court of 28 October 2016 — LA TARTE TROPÉZIENNE v EUIPO (LA TARTE TROPÉZIENNE 1955. SAINT-TROPEZ) (European Union trade mark — International registration designating the European Union — Figurative mark LA TARTE TROPÉZIENNE 1955. SAINT-TROPEZ — Absolute ground for refusal — Article 7(1)(c) of Regulation (EC) No 207/2009) | 22 |
| 2016/C 462/28 | Case T-29/16: Judgment of the General Court of 27 October 2016 — Caffè Nero Group v EUIPO (CAFFÈ NERO) ((EU trade mark — Application for the EU word mark CAFFÈ NERO — Absolute grounds for refusal — No distinctive character — Descriptiveness — Mark of such a nature as to deceive the public — Article 7(1)(b), (c) and (g) of Regulation (EC) No 207/2009) | 22 |
| 2016/C 462/29 | Case T-37/16: Judgment of the General Court of 27 October 2016 — Caffè Nero Group v EUIPO (CAFFÈ NERO) (EU trade mark — Application for the EU figurative mark CAFFÈ NERO — Absolute grounds for refusal — No distinctive character — Descriptiveness — Mark of such a nature as to deceive the public — Article 7(1)(b), (c) and (g) of Regulation (EC) No 207/2009) | 23 |
| 2016/C 462/30 | Case T-671/15: Order of the General Court of 19 October 2016 — E-Control v ACER (Action for annulment — Energy — Regulation (EC) No 713/2009 — Regulation (EC) No 714/2009 — Opinion of ACER — National regulatory authorities’ decisions approving the methods of allocation of cross-border electricity transmission capacity — Central-East Europe region — Compatibility — Act not open to challenge — Inadmissibility) | 23 |
| 2016/C 462/31 | Case T-109/16: Order of the General Court of 18 October 2016 — Laboratoire de la mer v EUIPO — Boehringer Ingelheim Pharma (RESPIMER) (EU trade mark — Opposition proceedings — Application for EU word mark RESPIMER — Earlier EU word mark RESPIMAT — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Action manifestly lacking any foundation in law) | 24 |
| 2016/C 462/32 | Case T-636/16: Action brought on 5 September 2016 — Starbucks and Starbucks Manufacturing Emea v Commission | 25 |
| 2016/C 462/33 | Case T-700/16: Action brought on 30 September 2016 — Laboratorios Ern v EUIPO — Ascendo Medienagentur (SLIMDYNAMICS) | 26 |
| 2016/C 462/34 | Case T-709/16: Action brought on 6 October 2016 — La Patrouille v EUIPO — Alpha Industries (Representation of an angular figure) | 26 |
| 2016/C 462/35 | Case T-710/16: Action brought on 6 October 2016 — La Patrouille v EUIPO — Alpha Industries (AEROBATIX) | 27 |
| 2016/C 462/36 | Case T-712/16: Action brought on 5 October 2016 — Deutsche Lufthansa v Commission | 28 |
| 2016/C 462/37 | Case T-714/16: Action brought on 7 October 2016 — Asolo v EUIPO — Red Bull (FLÜGEL) | 29 |
| 2016/C 462/38 | Case T-716/16: Action brought on 10 October 2016 — Pfizer and Pfizer Santé Familiale v Commission | 29 |
| 2016/C 462/39 | Case T-718/16: Action brought on 4 October 2016 — Mad Dogg Athletics v EUIPO — Aerospinning Master Franchising (SPINNING) | 30 |
| 2016/C 462/40 | Case T-722/16: Action brought on 12 October 2016 — Mapei v EUIPO — Steenfabrieken Vandersanden (zerø) | 31 |
| 2016/C 462/41 | Case T-723/16: Action brought on 12 October 2016 — Mapei v EUIPO — Steenfabrieken Vandersanden (RE-CONzerø) | 32 |
| 2016/C 462/42 | Case T-725/16: Action brought on 13 October 2016 — Palos Caravina v CdT | 32 |
| 2016/C 462/43 | Case T-726/16: Action brought on 13 October 2016 — VFP v Commission | 33 |
| 2016/C 462/44 | Case T-727/16: Action brought on 10 October 2016 — Repower v EUIPO — repowermap (REPOWER) | 34 |
| 2016/C 462/45 | Case T-730/16: Action brought on 13 October 2016 — Espírito Santo Financial Group v ECB | 35 |
| 2016/C 462/46 | Case T-731/16: Action brought on 10 October 2016 — Perifereia Stereas Elladas v Commission | 36 |
| 2016/C 462/47 | Case T-734/16: Action brought on 19 October 2016 — Argyraki v Commission | 36 |
| 2016/C 462/48 | Case T-739/16: Action brought on 25 October 2016 — Akant Monika i Zbigniew Harasym v EUIPO — Hunter Douglas Holding (COSIMO) | 37 |
| 2016/C 462/49 | Case T-741/16: Action brought on 21 October 2016 — Changmao Biochemical Engineering v Commission | 38 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2016/C 462/02

Case C-601/14: Judgment of the Court (Grand Chamber) of 11 October 2016 — European Commission v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2004/80/EC — Article 12(2) — National compensation schemes for victims of violent intentional crime guaranteeing fair and appropriate compensation — National scheme not covering all violent intentional crimes committed on the national territory)

2

2016/C 462/03

Case C-92/15: Judgment of the Court (Eighth Chamber) of 12 October 2016 (request for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium) — Sven Mathys v De Grave Antverpia NV (Reference for a preliminary ruling — Directive 96/75/EC — Systems of chartering and pricing in inland waterway transport — Scope — Article 1(b) — Carrier — Article 2 — Freedom to conclude contracts and negotiate prices)

3

2016/C 462/04

Case C-166/15: Judgment of the Court (Third Chamber) of 12 October 2016 (request for a preliminary ruling from the Rīgas apgabaltiesas Krimināllietu tiesu kolēģija — Latvia) — Criminal proceedings against Aleksandrs Ranks, Jurijs Vasiļevičs (Reference for a preliminary ruling — Intellectual property — Copyright and related rights — Directive 91/250/EEC — Article 4(a) and (c) — Article 5(1) and (2) — Directive 2009/24/EC — Article 4(1) and (2) — Article 5(1) and (2) — Legal protection of computer programs — Resale of used licensed copies of computer programs on non-original material media — Exhaustion of the distribution right — Exclusive right of reproduction)

3

2016/C 462/05

Case C-185/15: Judgment of the Court (Third Chamber) of 12 October 2016 (request for a preliminary ruling from the Vrhovno sodišče — Slovenia) — Marjan Kostanjevec v F&S Leasing GmbH (Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Article 6(3) — Definition of counterclaim — Claim based on unjust enrichment — Payment of a sum due under a decision that has been set aside — Temporal application)

4

2016/C 462/06

Case C-231/15: Judgment of the Court (Second Chamber) of 13 October 2016 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — Prezes Urzędu Komunikacji Elektronicznej, Petrotel sp. z o.o. w Płocku v Polkomtel sp. z o.o. (Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/21/EC — Article 4(1) — Right of appeal against a decision taken by a national regulatory authority — Effective appeal mechanism — Decision of a national regulatory authority to continue to apply pending the outcome of the appeal — Temporal effects of a decision of a national court annulling a decision of a national regulatory authority — Possibility of annulling a decision of the national regulatory authority with retroactive effect — Principles of legal certainty and protection of legitimate expectations)

5

2016/C 462/07

Case C-242/15 P: Judgment of the Court (Sixth Chamber) of 12 October 2016 — Land Hessen v Pollmeier Massivholz GmbH & Co. KG, European Commission (Appeal — State aid — State measures concerning the establishment of a sawmill in the Land of Hessen — Decision finding no State aid — Failure to initiate the formal investigation procedure — Serious difficulties — Calculation of the aid element of State guarantees — Commission Notice on State aid in the form of guarantees)

5

2016/C 462/08

Case C-277/15: Judgment of the Court (First Chamber) of 13 October 2016 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Servoprax GmbH v Roche Diagnostics Deutschland GmbH (Reference for a preliminary ruling — Approximation of laws — In vitro diagnostic medical devices — Directive 98/79/EC — Parallel imports — Translation by the importer of the information and instructions for use provided by the manufacturer — Supplementary conformity assessment procedure)

6

2016/C 462/09

Case C-294/15: Judgment of the Court (Second Chamber) of 13 October 2016 (request for a preliminary ruling from the Sąd Apelacyjny w Warszawie — Poland) — Edyta Mikołajczyk v Marie Louise Czarnecka, Stefan Czarnecki (Reference for a preliminary ruling — Judicial cooperation in civil matters — Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility — Regulation (EC) No 2201/2003 — Article 1(1)(a) — Material scope — Action for annulment of marriage brought by a third party after the death of one of the spouses — Article 3(1) — Jurisdiction of the courts of the Member State of residence of the applicant — Scope)

6

2016/C 462/10

Case C-303/15: Judgment of the Court (First Chamber) of 13 October 2016 (request for a preliminary ruling from the Sąd Okręgowy w Łodzi — Poland) — Naczelnik Urzędu Celnego I w Łodzi v G. M., M. S. (Reference for a preliminary ruling — Technical regulations in the gambling sector — Directive 98/34/EC — Concept of technical regulation — Obligation on Member States to notify the European Commission of all draft technical regulations — Inapplicability of rules classifiable as technical regulations not notified to the Commission)

7

2016/C 462/11

Case C-340/15: Judgment of the Court (Third Chamber) of 12 October 2016 (request for a preliminary ruling from the Bundesfinanzgericht — Austria) — Christine Nigl and Others v Finanzamt Waldviertel ((Reference for a preliminary ruling — Taxation — Value added tax — Sixth Directive 77/388/EEC — Article 4(1) and (4) — Directive 2006/112/EC — Articles 9 and 11 — Concept of taxable person — Civil-law partnerships selling their products under a common trade mark and through a limited company — Concept of independent undertaking — Refusal of the status of taxable person — Retroactivity — Sixth Directive 77/388 — Article 25 — Directive 2006/112 — Articles 272 and 296 — Flat-rate scheme for farmers — Exclusion from the flat-rate scheme — Retroactivity)

8

2016/C 462/12

Case C-510/16: Request for a preliminary ruling from the Conseil d’État (France) lodged on 29 September 2016 — Carrefour Hypermarchés SAS, Fnac Paris, Fnac Direct, Relais Fnac, Codirep, Fnac Périphérie v Minister for Finance and Public Accounts

9

2016/C 462/13

Case C-516/16: Request for a preliminary ruling from the Bundesverwaltungsgericht (Austria) lodged on 3 October 2016 — Erzeugerorganisation Tiefkühlgemüse e. Gen. v Agrarmarkt Austria

10

2016/C 462/14

Case C-518/16: Request for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 4 October 2016 — ZPT AD v Narodno sabranie na Republika Bulgaria, Varhoven administrativen sad, Natsionalna agentsia za prihodite

12

General Court

2016/C 462/15

Case T-515/12: Judgment of the General Court of 27 October 2016 — El Corte Inglés v EUIPO — English Cut (The English Cut) (EU trade mark — Opposition proceedings — Application for EU word mark The English Cut — Earlier EU figurative and national word marks El Corte Inglés — Relative ground for refusal — Article 8(5) of Regulation (EC) No 207/2009 — Reputation)

14

2016/C 462/16

Case T-787/14 P: Judgment of the General Court of 27 October 2016 — ECB v Cerafogli (Appeal — Civil service — ECB Staff — Access to documents — Documents relating to the dispute between the parties in the proceedings — Partial refusal of access — Rule of correspondence between the application and the complaint — Plea of illegality)

14

2016/C 462/17

Case T-123/15: Judgment of the General Court of 28 October 2016 — Unicorn v EUIPO — Mercilink Equipment Leasing (UNICORN-čerpací stanice) (EU trade mark — Opposition proceedings — Application for the EU word mark UNICORN-čerpací stanice — Earlier national word and figurative marks UNICORN — Relative ground for refusal — Reputation — Article 8(5) of Regulation (EC) No 207/2009)

15

2016/C 462/18

Case T-124/15: Judgment of the General Court of 28 October 2016 — Unicorn v EUIPO — Mercilink Equipment Leasing (UNICORN) (EU trade mark — Opposition proceedings — Application for the EU figurative mark UNICORN — Earlier national word and figurative marks UNICORN and earlier national figurative mark representing a unicorn’s head — Relative ground for refusal — Reputation — Article 8(5) of Regulation (EC) No 207/2009)

16

2016/C 462/19

Case T-125/15: Judgment of the General Court of 28 October 2016 — Unicorn v EUIPO — Mercilink Equipment Leasing (UNICORN) (EU trade mark — Opposition proceedings — Application for the EU figurative mark UNICORN — Earlier national word and figurative marks UNICORN and earlier national figurative mark representing a unicorn’s head — Relative ground for refusal — Reputation — Article 8(5) of Regulation (EC) No 207/2009)

16

2016/C 462/20

Case T-153/15: Judgment of the General Court of 26 October 2016 — Hamcho and Hamcho International v Council (Common foreign and security policy — Restrictive measures against Syria — Freezing of funds — Annulment of the earlier measures by a judgment of the General Court — New measures including the names of the applicants on the lists — Action for annulment — Article 76(d) of the Rules of Procedure — Content of the application — Admissibility — Obligation to state reasons — Burden of proof — Right to property — Freedom to conduct business)

17

2016/C 462/21

Case T-154/15: Judgment of the General Court of 26 October 2016 — Jaber v Council (Common Foreign and Security Policy — Restrictive measures taken against Syria — Freezing of funds — Annulment of prior measures by a judgment of the General Court — New measures including the applicant's name on the lists — Action for annulment — Article 76(d) of the Rules of Procedure — Content of the application — Admissibility — Obligation to state reasons — Burden of proof — Right to property — Freedom to conduct a business)

18

2016/C 462/22

Case T-155/15: Judgment of the General Court of 26 October 2016 — Kaddour v Council (Common Foreign and Security Policy — Restrictive measures taken against Syria — Freezing of funds — Annulment of prior measures by a judgment of the General Court — New measures including the applicant's name on the lists — Action for annulment — Article 76(d) of the Rules of Procedure — Content of the application — Admissibility — Obligation to state reasons — Burden of proof — Right to property — Freedom to conduct a business)

18

2016/C 462/23

Case T-201/15: Judgment of the General Court of 28 October 2016 — Unicorn v EUIPO — Mercilink Equipment Leasing (UNICORN) (EU trade mark — Invalidity proceedings — EU word mark UNICORN — Earlier national word and figurative marks UNICORN — Article 53(1)(a) and Article 8(5) of Regulation (EC) No 207/2009 — Reputation)

19

2016/C 462/24

Case T-309/15 P: Judgment of the General Court of 27 October 2016 — CW v Parliament (Appeal — Civil service — Officials — Psychological harassment — Duty of the administration to provide assistance — Article 24 of the Staff Regulations — Request for assistance — Provisional distancing measures — Duty to have regard for the welfare of staff — Responsibility — Claim for damages — Decision rejecting the administrative complaint — Distortion of the evidence — Error of law)

20

2016/C 462/25

Case T-493/15 P: Judgment of the General Court of 27 October 2016 — Commission v CX (Appeal — Civil Service — Officials — Disciplinary procedure — Disciplinary sanction — Removal from post — Right to be heard — Article 22 of Annex IX to the Staff Regulations — Errors of law — Distortion of the evidence — Incomplete examination of the facts and evidence)

20

2016/C 462/26

Case T-625/15: Judgment of the General Court of 27 October 2016 — Spa Monopole v EUIPO — YTL Hotels & Properties (SPA VILLAGE) (European Union trade mark — Opposition proceedings — Application for the European Union word mark SPA VILLAGE — Earlier Benelux word mark SPA — Relative ground for refusal — Article 8(5) of Regulation (EC) No 207/2009)

21

2016/C 462/27

Case T-7/16: Judgment of the General Court of 28 October 2016 — LA TARTE TROPÉZIENNE v EUIPO (LA TARTE TROPÉZIENNE 1955. SAINT-TROPEZ) (European Union trade mark — International registration designating the European Union — Figurative mark LA TARTE TROPÉZIENNE 1955. SAINT-TROPEZ — Absolute ground for refusal — Article 7(1)(c) of Regulation (EC) No 207/2009)

22

2016/C 462/28

Case T-29/16: Judgment of the General Court of 27 October 2016 — Caffè Nero Group v EUIPO (CAFFÈ NERO) ((EU trade mark — Application for the EU word mark CAFFÈ NERO — Absolute grounds for refusal — No distinctive character — Descriptiveness — Mark of such a nature as to deceive the public — Article 7(1)(b), (c) and (g) of Regulation (EC) No 207/2009)

22

2016/C 462/29

Case T-37/16: Judgment of the General Court of 27 October 2016 — Caffè Nero Group v EUIPO (CAFFÈ NERO) (EU trade mark — Application for the EU figurative mark CAFFÈ NERO — Absolute grounds for refusal — No distinctive character — Descriptiveness — Mark of such a nature as to deceive the public — Article 7(1)(b), (c) and (g) of Regulation (EC) No 207/2009)

23

2016/C 462/30

Case T-671/15: Order of the General Court of 19 October 2016 — E-Control v ACER (Action for annulment — Energy — Regulation (EC) No 713/2009 — Regulation (EC) No 714/2009 — Opinion of ACER — National regulatory authorities’ decisions approving the methods of allocation of cross-border electricity transmission capacity — Central-East Europe region — Compatibility — Act not open to challenge — Inadmissibility)

23

2016/C 462/31

Case T-109/16: Order of the General Court of 18 October 2016 — Laboratoire de la mer v EUIPO — Boehringer Ingelheim Pharma (RESPIMER) (EU trade mark — Opposition proceedings — Application for EU word mark RESPIMER — Earlier EU word mark RESPIMAT — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Action manifestly lacking any foundation in law)

24

2016/C 462/32

Case T-636/16: Action brought on 5 September 2016 — Starbucks and Starbucks Manufacturing Emea v Commission

25

2016/C 462/33

Case T-700/16: Action brought on 30 September 2016 — Laboratorios Ern v EUIPO — Ascendo Medienagentur (SLIMDYNAMICS)

26

2016/C 462/34

Case T-709/16: Action brought on 6 October 2016 — La Patrouille v EUIPO — Alpha Industries (Representation of an angular figure)

26

2016/C 462/35

Case T-710/16: Action brought on 6 October 2016 — La Patrouille v EUIPO — Alpha Industries (AEROBATIX)

27

2016/C 462/36

Case T-712/16: Action brought on 5 October 2016 — Deutsche Lufthansa v Commission

28

2016/C 462/37

Case T-714/16: Action brought on 7 October 2016 — Asolo v EUIPO — Red Bull (FLÜGEL)

29

2016/C 462/38

Case T-716/16: Action brought on 10 October 2016 — Pfizer and Pfizer Santé Familiale v Commission

Pfizer and Pfizer Santé Familiale

Commission

29

2016/C 462/39

Case T-718/16: Action brought on 4 October 2016 — Mad Dogg Athletics v EUIPO — Aerospinning Master Franchising (SPINNING)

30

2016/C 462/40

Case T-722/16: Action brought on 12 October 2016 — Mapei v EUIPO — Steenfabrieken Vandersanden (zerø)

31

2016/C 462/41

Case T-723/16: Action brought on 12 October 2016 — Mapei v EUIPO — Steenfabrieken Vandersanden (RE-CONzerø)

32

2016/C 462/42

Case T-725/16: Action brought on 13 October 2016 — Palos Caravina v CdT

32

2016/C 462/43

Case T-726/16: Action brought on 13 October 2016 — VFP v Commission

33

2016/C 462/44

Case T-727/16: Action brought on 10 October 2016 — Repower v EUIPO — repowermap (REPOWER)

34

2016/C 462/45

Case T-730/16: Action brought on 13 October 2016 — Espírito Santo Financial Group v ECB

35

2016/C 462/46

Case T-731/16: Action brought on 10 October 2016 — Perifereia Stereas Elladas v Commission

36

2016/C 462/47

Case T-734/16: Action brought on 19 October 2016 — Argyraki v Commission

36

2016/C 462/48

Case T-739/16: Action brought on 25 October 2016 — Akant Monika i Zbigniew Harasym v EUIPO — Hunter Douglas Holding (COSIMO)

37

2016/C 462/49

Case T-741/16: Action brought on 21 October 2016 — Changmao Biochemical Engineering v Commission

38

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| EN | |
| --- | --- |

EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 12.12.2016 | EN | Official Journal of the European Union | C 462/1 |
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12.12.2016

EN

Official Journal of the European Union

C 462/1

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Last publications of the Court of Justice of the European Union in the Official Journal of the European Union

(2016/C 462/01)

Last publication

OJ C 454, 5.12.2016

Past publications

OJ C 441, 28.11.2016

OJ C 428, 21.11.2016

OJ C 419, 14.11.2016

OJ C 410, 7.11.2016

OJ C 402, 31.10.2016

OJ C 392, 24.10.2016

These texts are available on:

EUR-Lex: http://eur-lex.europa.eu

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 12.12.2016 | EN | Official Journal of the European Union | C 462/2 |
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12.12.2016

EN

Official Journal of the European Union

C 462/2

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Judgment of the Court (Grand Chamber) of 11 October 2016 — European Commission v Italian Republic

(Case C-601/14) (1)

((Failure of a Member State to fulfil obligations - Directive 2004/80/EC - Article 12(2) - National compensation schemes for victims of violent intentional crime guaranteeing fair and appropriate compensation - National scheme not covering all violent intentional crimes committed on the national territory))

(2016/C 462/02)

Language of the case: Italian

Parties

Applicant: European Commission (represented by: E. Traversa and F. Moro, acting as Agents)

Defendant: Italian Republic (represented by: G. Palmieri, acting as Agent, and by G. Palatiello and E. De Bonis, avvocati dello Stato)

Intervener in support of the applicant: Council of the European Union (represented by: E. Moro, M. Chavrier and K. Pleśniak, acting as Agents)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt all the measures necessary to guarantee the existence, in cross-border situations, of a compensation scheme for victims of all violent intentional crimes committed on its territory, the Italian Republic has failed to fulfil its obligations under Article 12(2) of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims; |
| --- | --- |

1.

Declares that, by failing to adopt all the measures necessary to guarantee the existence, in cross-border situations, of a compensation scheme for victims of all violent intentional crimes committed on its territory, the Italian Republic has failed to fulfil its obligations under Article 12(2) of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims;

| 2. | Orders the Italian Republic to bear its own costs and to pay those incurred by the European Commission; |
| --- | --- |

2.

Orders the Italian Republic to bear its own costs and to pay those incurred by the European Commission;

| 3. | Orders the Council of the European Union to bear its own costs. |
| --- | --- |

3.

Orders the Council of the European Union to bear its own costs.

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(1)  OJ C 89, 16.3.2015.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/3 |
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12.12.2016

EN

Official Journal of the European Union

C 462/3

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Judgment of the Court (Eighth Chamber) of 12 October 2016 (request for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium) — Sven Mathys v De Grave Antverpia NV

(Case C-92/15) (1)

((Reference for a preliminary ruling - Directive 96/75/EC - Systems of chartering and pricing in inland waterway transport - Scope - Article 1(b) - ‘Carrier’ - Article 2 - Freedom to conclude contracts and negotiate prices))

(2016/C 462/03)

Language of the case: Dutch

Referring court

Hof van beroep te Antwerpen

Parties to the main proceedings

Appellant: Sven Mathys

Respondent: De Grave Antverpia NV

Operative part of the judgment

In the context of inland waterway transport activities, Article 1(b) of Council Directive 96/75/EC of 19 November 1996 on the systems of chartering and pricing in national and international inland waterway transport in the Community, in so far as it defines a ‘carrier’ as an owner or an operator of one or more inland waterway vessels, and Article 2 of that directive, in so far as it states that, in that field, contracts are to be freely concluded between the parties concerned, must be interpreted as not precluding national legislation, such as that applicable to the dispute in the main proceedings, that would enable a person who does not correspond to that definition to conclude a contract of carriage as a carrier.

---

(1)  OJ C 155, 11.5.2015.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/3 |
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12.12.2016

EN

Official Journal of the European Union

C 462/3

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Judgment of the Court (Third Chamber) of 12 October 2016 (request for a preliminary ruling from the Rīgas apgabaltiesas Krimināllietu tiesu kolēģija — Latvia) — Criminal proceedings against Aleksandrs Ranks, Jurijs Vasiļevičs

(Case C-166/15) (1)

((Reference for a preliminary ruling - Intellectual property - Copyright and related rights - Directive 91/250/EEC - Article 4(a) and (c) - Article 5(1) and (2) - Directive 2009/24/EC - Article 4(1) and (2) - Article 5(1) and (2) - Legal protection of computer programs - Resale of ‘used’ licensed copies of computer programs on non-original material media - Exhaustion of the distribution right - Exclusive right of reproduction))

(2016/C 462/04)

Language of the case: Latvian

Referring court

Rīgas apgabaltiesas Krimināllietu tiesu kolēģija

Parties in the main proceedings

Aleksandrs Ranks, Jurijs Vasiļevičs

The other parties to the proceedings: Finanšu un ekonomisko noziegumu izmeklēšanas prokoratūra, Microsoft Corp.

Operative part of the judgment

Article 4(a) and (c) and Article 5(1) and (2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs must be interpreted as meaning that, although the initial acquirer of a copy of a computer program accompanied by an unlimited user licence is entitled to resell that copy and his licence to a new acquirer, he may not, however, in the case where the original material medium of the copy that was initially delivered to him has been damaged, destroyed or lost, provide his back-up copy of that program to that new acquirer without the authorisation of the rightholder.

---

(1)  OJ C 205, 22.6.2015.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/4 |
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12.12.2016

EN

Official Journal of the European Union

C 462/4

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Judgment of the Court (Third Chamber) of 12 October 2016 (request for a preliminary ruling from the Vrhovno sodišče — Slovenia) — Marjan Kostanjevec v F&S Leasing GmbH

(Case C-185/15) (1)

((Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EC) No 44/2001 - Article 6(3) - Definition of ‘counterclaim’ - Claim based on unjust enrichment - Payment of a sum due under a decision that has been set aside - Temporal application))

(2016/C 462/05)

Language of the case: Slovene

Referring court

Vrhovno sodišče

Parties to the main proceedings

Applicant: Marjan Kostanjevec

Defendant: F&S Leasing GmbH

Operative part of the judgment

Article 6(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the court designated by that provision as regards counterclaims has jurisdiction to hear a counterclaim seeking the reimbursement on the ground of unjust enrichment of a sum corresponding to the amount agreed in an extrajudicial settlement, where that claim is brought in fresh legal proceedings between the same parties, following the setting aside of the judgment delivered in the original proceedings between them, the enforcement of which gave rise to the extrajudicial settlement.

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(1)  OJ C 254, 3.8.2015.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/5 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/5

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Judgment of the Court (Second Chamber) of 13 October 2016 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — Prezes Urzędu Komunikacji Elektronicznej, Petrotel sp. z o.o. w Płocku v Polkomtel sp. z o.o.

(Case C-231/15) (1)

((Reference for a preliminary ruling - Electronic communications networks and services - Directive 2002/21/EC - Article 4(1) - Right of appeal against a decision taken by a national regulatory authority - Effective appeal mechanism - Decision of a national regulatory authority to continue to apply pending the outcome of the appeal - Temporal effects of a decision of a national court annulling a decision of a national regulatory authority - Possibility of annulling a decision of the national regulatory authority with retroactive effect - Principles of legal certainty and protection of legitimate expectations))

(2016/C 462/06)

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Appellants: Prezes Urzędu Komunikacji Elektronicznej, Petrotel sp. z o.o. w Płocku

Respondent: Polkomtel sp. z o.o.

Operative part of the judgment

Article 4(1), first subparagraph, first and third sentences, and second subparagraph, of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, is to be interpreted as meaning that a national court hearing an appeal against a decision of the national regulatory authority must be able to annul that decision with retroactive effect if it finds that to be necessary in order to provide effective protection for the rights of the undertaking which has brought the appeal.

---

(1)  OJ C 294, 7.9.2015.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/5 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/5

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Judgment of the Court (Sixth Chamber) of 12 October 2016 — Land Hessen v Pollmeier Massivholz GmbH & Co. KG, European Commission

(Case C-242/15 P) (1)

((Appeal - State aid - State measures concerning the establishment of a sawmill in the Land of Hessen - Decision finding no State aid - Failure to initiate the formal investigation procedure - Serious difficulties - Calculation of the aid element of State guarantees - Commission Notice on State aid in the form of guarantees))

(2016/C 462/07)

Language of the case: German

Parties

Appellant: Land Hessen (represented by: U. Soltész and A. Richter, Rechtsanwälte)

Other parties to the proceedings: Pollmeier Massivholz GmbH & Co. KG (represented by: J. Heithecker and J. Ylinen, Rechtsanwälte), European Commission (represented by: F. Erlbacher and C. Urraca Caviedes, Agents)

Operative part of the judgment

The Court:

| 1. | Dismisses the appeal; |
| --- | --- |

1.

Dismisses the appeal;

| 2. | Orders Land Hessen to pay the costs. |
| --- | --- |

2.

Orders Land Hessen to pay the costs.

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(1)  OJ C 236, 20.7.2015.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/6 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/6

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Judgment of the Court (First Chamber) of 13 October 2016 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Servoprax GmbH v Roche Diagnostics Deutschland GmbH

(Case C-277/15) (1)

((Reference for a preliminary ruling - Approximation of laws - In vitro diagnostic medical devices - Directive 98/79/EC - Parallel imports - Translation by the importer of the information and instructions for use provided by the manufacturer - Supplementary conformity assessment procedure))

(2016/C 462/08)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Servoprax GmbH

Defendant: Roche Diagnostics Deutschland GmbH

Operative part of the judgment

Article 9 of Directive 98/79/EC of the European Parliament and of the Council of 27 October 1998 on in vitro diagnostic medical devices must be interpreted as meaning that it does not require a parallel importer of a device for self-diagnosis for measuring blood sugar that bears a CE marking and that was the subject of a conformity assessment by a notified body to undertake a further assessment in order to certify the conformity of the labelling of that device and the instructions for its use as a result of their translation into the official language of the Member State of importation.

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(1)  OJ C 294, 7.9.2015.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/6 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/6

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Judgment of the Court (Second Chamber) of 13 October 2016 (request for a preliminary ruling from the Sąd Apelacyjny w Warszawie — Poland) — Edyta Mikołajczyk v Marie Louise Czarnecka, Stefan Czarnecki

(Case C-294/15) (1)

((Reference for a preliminary ruling - Judicial cooperation in civil matters - Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility - Regulation (EC) No 2201/2003 - Article 1(1)(a) - Material scope - Action for annulment of marriage brought by a third party after the death of one of the spouses - Article 3(1) - Jurisdiction of the courts of the Member State of residence of the ‘applicant’ - Scope))

(2016/C 462/09)

Language of the case: Polish

Referring court

Sąd Apelacyjny w Warszawie

Parties to the main proceedings

Applicant: Edyta Mikołajczyk

Defendants: Marie Louise Czarnecka, Stefan Czarnecki

Operative part of the judgment

| 1. | Article 1(1)(a) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that an action for annulment of marriage brought by a third party following the death of one of the spouses falls within the scope of Regulation No 2201/2003. |
| --- | --- |

1.

Article 1(1)(a) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that an action for annulment of marriage brought by a third party following the death of one of the spouses falls within the scope of Regulation No 2201/2003.

| 2. | The fifth and sixth indents of Article 3(1)(a) of Regulation No 2201/2003 must be interpreted as meaning that a person other than one of the spouses who brings an action for annulment of marriage may not rely on the grounds of jurisdiction set out in those provisions. |
| --- | --- |

2.

The fifth and sixth indents of Article 3(1)(a) of Regulation No 2201/2003 must be interpreted as meaning that a person other than one of the spouses who brings an action for annulment of marriage may not rely on the grounds of jurisdiction set out in those provisions.

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(1)  OJ C 311, 21.9.2015.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/7 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/7

---

Judgment of the Court (First Chamber) of 13 October 2016 (request for a preliminary ruling from the Sąd Okręgowy w Łodzi — Poland) — Naczelnik Urzędu Celnego I w Łodzi v G. M., M. S.

(Case C-303/15) (1)

((Reference for a preliminary ruling - Technical regulations in the gambling sector - Directive 98/34/EC - Concept of ‘technical regulation’ - Obligation on Member States to notify the European Commission of all draft technical regulations - Inapplicability of rules classifiable as technical regulations not notified to the Commission))

(2016/C 462/10)

Language of the case: Polish

Referring court

Sąd Okręgowy w Łodzi

Parties to the main proceedings

Applicant: Naczelnik Urzędu Celnego I w Łodzi

Defendants: G. M., M. S.

Intervener in support of the defendants: Colin Wiliams sp. z o.o.

Operative part of the judgment

Article 1 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, must be interpreted as meaning that a provision of national law, such as that at issue in the main proceedings, does not fall within the scope of the concept of a ‘technical regulation’, within the meaning of that directive, subject to obligatory notification under Article 8(1) of that directive, the penalty for failure to fulfil that obligation being that such a regulation is inapplicable.

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(1)  OJ C 311, 21.9.2015.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/8 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/8

---

Judgment of the Court (Third Chamber) of 12 October 2016 (request for a preliminary ruling from the Bundesfinanzgericht — Austria) — Christine Nigl and Others v Finanzamt Waldviertel

(Case C-340/15) (1)

(((Reference for a preliminary ruling - Taxation - Value added tax - Sixth Directive 77/388/EEC - Article 4(1) and (4) - Directive 2006/112/EC - Articles 9 and 11 - Concept of ‘taxable person’ - Civil-law partnerships selling their products under a common trade mark and through a limited company - Concept of ‘independent undertaking’ - Refusal of the status of taxable person - Retroactivity - Sixth Directive 77/388 - Article 25 - Directive 2006/112 - Articles 272 and 296 - Flat-rate scheme for farmers - Exclusion from the flat-rate scheme - Retroactivity))

(2016/C 462/11)

Language of the case: German

Referring court

Bundesfinanzgericht

Parties to the main proceedings

Applicants: Christine Nigl, Gisela Nigl sen., Gisela Nigl jun., Josef Nigl, Martin Nigl

Defendant: Finanzamt Waldviertel

Operative part of the judgment

| 1. | Article 4(1) and the first subparagraph of Article 4(4) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2004/66/EC of 26 April 2004, on the one hand, and the first subparagraph of Article 9(1) and Article 10 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, on the other, must be interpreted as meaning that multiple civil-law partnerships, such as those at issue in the main proceedings, which conduct themselves outwardly as such and independently in relation to their suppliers, public authorities and, to a certain extent, their customers, and each of which carries out its own production by using for the most part its means of production, but which market a large proportion of their products under a common trade mark through a limited company the shares in which are held by members of those civil-law partnerships and by other members of the family in question, must be regarded as independent undertakings which are taxable persons for value-added-tax purposes. |
| --- | --- |

1.

Article 4(1) and the first subparagraph of Article 4(4) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2004/66/EC of 26 April 2004, on the one hand, and the first subparagraph of Article 9(1) and Article 10 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, on the other, must be interpreted as meaning that multiple civil-law partnerships, such as those at issue in the main proceedings, which conduct themselves outwardly as such and independently in relation to their suppliers, public authorities and, to a certain extent, their customers, and each of which carries out its own production by using for the most part its means of production, but which market a large proportion of their products under a common trade mark through a limited company the shares in which are held by members of those civil-law partnerships and by other members of the family in question, must be regarded as independent undertakings which are taxable persons for value-added-tax purposes.

| 2. | Article 25 of Sixth Directive 77/388, as amended by Directive 2004/66, and Article 296 of Directive 2006/112 must be interpreted as not excluding the possibility of refusing the application of the common flat-rate scheme for farmers, laid down in those articles, to multiple civil-law partnerships, such as those at issue in the main proceedings, regarded as independent undertakings which are taxable persons for value-added-tax purposes and which cooperate with each other, on the ground that a limited company, an association of persons made up of that limited company and members of the civil-law partnerships in question could not be subject to that scheme, on account of the size of its operation or its legal form, even if those civil-law partnerships do not belong to a category of producers excluded from that flat-rate scheme, in so far as they are, owing to their links with that company or one of those associations, materially capable of assuming the administrative burden of the tasks arising from the application of the normal arrangements or the simplified scheme, this being a matter for the referring court to verify. |
| --- | --- |

2.

Article 25 of Sixth Directive 77/388, as amended by Directive 2004/66, and Article 296 of Directive 2006/112 must be interpreted as not excluding the possibility of refusing the application of the common flat-rate scheme for farmers, laid down in those articles, to multiple civil-law partnerships, such as those at issue in the main proceedings, regarded as independent undertakings which are taxable persons for value-added-tax purposes and which cooperate with each other, on the ground that a limited company, an association of persons made up of that limited company and members of the civil-law partnerships in question could not be subject to that scheme, on account of the size of its operation or its legal form, even if those civil-law partnerships do not belong to a category of producers excluded from that flat-rate scheme, in so far as they are, owing to their links with that company or one of those associations, materially capable of assuming the administrative burden of the tasks arising from the application of the normal arrangements or the simplified scheme, this being a matter for the referring court to verify.

| 3. | In the event that the common flat-rate regime for farmers has, in principle, to be excluded for civil-law partnerships such as those at issue in the main proceedings, such an exclusion would apply to the period prior to the date on which the appraisal on which it is based took place, provided that that appraisal occurs within the limitation period for action on the part of the tax authority and its effects do not apply retroactively to a date earlier than that on which the legal and factual elements on which it is based occurred. |
| --- | --- |

3.

In the event that the common flat-rate regime for farmers has, in principle, to be excluded for civil-law partnerships such as those at issue in the main proceedings, such an exclusion would apply to the period prior to the date on which the appraisal on which it is based took place, provided that that appraisal occurs within the limitation period for action on the part of the tax authority and its effects do not apply retroactively to a date earlier than that on which the legal and factual elements on which it is based occurred.

---

(1)  OJ C 328, 5.10.2015.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/9 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/9

---

Request for a preliminary ruling from the Conseil d’État (France) lodged on 29 September 2016 — Carrefour Hypermarchés SAS, Fnac Paris, Fnac Direct, Relais Fnac, Codirep, Fnac Périphérie v Minister for Finance and Public Accounts

(Case C-510/16)

(2016/C 462/12)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicants: Carrefour Hypermarchés SAS, Fnac Paris, Fnac Direct, Relais Fnac, Codirep, Fnac Périphérie

Defendant: Minister for Finance and Public Accounts

Questions referred

| 1. | In a situation in which an aid scheme is financed by allocated resources, where a Member State has regularly notified the Commission of legal changes having a significant impact on that scheme prior to their implementation, and in particular of changes relating to the method by which the scheme is financed, does a substantial increase in revenue from fiscal resources allocated to the scheme, compared to the projections submitted to the European Commission, constitute a significant change within the meaning of Article 88(3) of the EC Treaty, now Article 108 TFEU, which would require a new notification to be made? |
| --- | --- |

1.

In a situation in which an aid scheme is financed by allocated resources, where a Member State has regularly notified the Commission of legal changes having a significant impact on that scheme prior to their implementation, and in particular of changes relating to the method by which the scheme is financed, does a substantial increase in revenue from fiscal resources allocated to the scheme, compared to the projections submitted to the European Commission, constitute a significant change within the meaning of Article 88(3) of the EC Treaty, now Article 108 TFEU, which would require a new notification to be made?

| 2. | In the same situation, how is Article 4 of Commission Regulation (EC) No 794/2004 (1) to be applied, pursuant to which an increase in the original budget of an existing aid scheme exceeding 20 % constitutes a change to that aid scheme and, in particular:






  (a) | how does it combine with the obligation to notify the Commission in advance of an aid scheme, laid down in Article 88(3) of the EC Treaty, now Article 108 TFEU? |
| --- | --- | --- |

2.

In the same situation, how is Article 4 of Commission Regulation (EC) No 794/2004 (1) to be applied, pursuant to which an increase in the original budget of an existing aid scheme exceeding 20 % constitutes a change to that aid scheme and, in particular:

(a)

how does it combine with the obligation to notify the Commission in advance of an aid scheme, laid down in Article 88(3) of the EC Treaty, now Article 108 TFEU?

| (b) | if exceeding the 20 % threshold of the original budget of an existing aid scheme provided for under Article 4 of Commission Regulation (EC) No 794/2004 requires a new notification, must that threshold be assessed in relation to the amount of expenditure allocated or to the expenditure actually granted to the beneficiaries, excluding the sums placed in the reserve or those having been made subject to a levy for the benefit of the State? |
| --- | --- |

(b)

if exceeding the 20 % threshold of the original budget of an existing aid scheme provided for under Article 4 of Commission Regulation (EC) No 794/2004 requires a new notification, must that threshold be assessed in relation to the amount of expenditure allocated or to the expenditure actually granted to the beneficiaries, excluding the sums placed in the reserve or those having been made subject to a levy for the benefit of the State?

| (c) | assuming that compliance with the 20 % threshold must be assessed in relation to the expenditure dedicated to the aid scheme, must such an assessment be made by comparing the overall level of expenditure in the approval decision with the overall budget subsequently allocated to all aid schemes granted by the body responsible for such allocations, or by comparing the levels notified under each of the categories of aid identified in that decision with that body’s corresponding budget line? |
| --- | --- |

(c)

assuming that compliance with the 20 % threshold must be assessed in relation to the expenditure dedicated to the aid scheme, must such an assessment be made by comparing the overall level of expenditure in the approval decision with the overall budget subsequently allocated to all aid schemes granted by the body responsible for such allocations, or by comparing the levels notified under each of the categories of aid identified in that decision with that body’s corresponding budget line?

---

(1)  Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 2004 L 140, p. 1).

---

| 12.12.2016 | EN | Official Journal of the European Union | C 462/10 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/10

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Request for a preliminary ruling from the Bundesverwaltungsgericht (Austria) lodged on 3 October 2016 — Erzeugerorganisation Tiefkühlgemüse e. Gen. v Agrarmarkt Austria

(Case C-516/16)

(2016/C 462/13)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Appellant: Erzeugerorganisation Tiefkühlgemüse e. Gen.

Respondent: Agrarmarkt Austria

Questions referred

| I.1. | Do Articles 65, 66 and 69 of Commission Regulation (EC) No 1580/2007 (1) of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector and (since 23 June 2011) Articles 64, 65 and 68 of Commission Implementing Regulation (EU) No 543/2011 (2) of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors require that the decision approving the operational programme and the amounts of funds, or any amendment of that decision, and the decision on the ‘approved amount of aid’ be adopted not merely as notifications but formally as (at least provisionally) binding decisions that can be challenged by the applicant at the outset, that is to say irrespective of any challenge to the final decision (pursuant to Article 70 of Regulation 1580/2007 or Article 69 of Regulation No 543/2011) on the application for (closing) payment of the aid? |
| --- | --- |

I.1.

Do Articles 65, 66 and 69 of Commission Regulation (EC) No 1580/2007 (1) of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector and (since 23 June 2011) Articles 64, 65 and 68 of Commission Implementing Regulation (EU) No 543/2011 (2) of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors require that the decision approving the operational programme and the amounts of funds, or any amendment of that decision, and the decision on the ‘approved amount of aid’ be adopted not merely as notifications but formally as (at least provisionally) binding decisions that can be challenged by the applicant at the outset, that is to say irrespective of any challenge to the final decision (pursuant to Article 70 of Regulation 1580/2007 or Article 69 of Regulation No 543/2011) on the application for (closing) payment of the aid?

| I.2. | Are the provisions cited in Question I.1 to be interpreted as meaning that, at the time when such decisions are adopted, the value of the marketed production must also be fixed with binding effect (in the normative part of the decision)? |
| --- | --- |

I.2.

Are the provisions cited in Question I.1 to be interpreted as meaning that, at the time when such decisions are adopted, the value of the marketed production must also be fixed with binding effect (in the normative part of the decision)?

| I.3. | Is EU law, in particular Articles 69 and 70 of Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors, to be interpreted as meaning that a court required to rule on an appeal brought against a decision by which an administrative authority, in connection with a particular annual segment of the operational programme, gave a final adjudication on an application for the payment of financial assistance under Article 103 g(5) of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), in the version of Council Regulation (EC) No 361/2008 of 14 April 2008 amending Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (‘Single CMO Regulation’), is prevented from examining the question of the legality of the value-of-the-marketed-production calculation used as the basis for the ceiling on aid by a pre-existing final decision approving the operational programme and the amounts of funds and by the decision on the ‘approved amount of aid’? |
| --- | --- |

I.3.

Is EU law, in particular Articles 69 and 70 of Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors, to be interpreted as meaning that a court required to rule on an appeal brought against a decision by which an administrative authority, in connection with a particular annual segment of the operational programme, gave a final adjudication on an application for the payment of financial assistance under Article 103 g(5) of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), in the version of Council Regulation (EC) No 361/2008 of 14 April 2008 amending Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (‘Single CMO Regulation’), is prevented from examining the question of the legality of the value-of-the-marketed-production calculation used as the basis for the ceiling on aid by a pre-existing final decision approving the operational programme and the amounts of funds and by the decision on the ‘approved amount of aid’?

| I.4. | If Question I.1., I.2. or I.3. is answered in the negative, is Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), in particular Parts IX (‘Fruit and vegetables’, specifically in relation to ‘CN code ex 07 09 ... Other vegetables, fresh or chilled ...’) and X (‘Processed fruit and vegetable products’, in relation to ‘CN code ex 07 10 Vegetables ... frozen’) of Annex I thereto, to be interpreted as meaning that vegetable products that emerge from the sum of the processes that follow the harvest, namely cleaning, slicing, blanching and freezing, are to be classified not as products within the meaning of Part IX of Annex I but as products within the meaning of Part X of Annex I? |
| --- | --- |

I.4.

If Question I.1., I.2. or I.3. is answered in the negative, is Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), in particular Parts IX (‘Fruit and vegetables’, specifically in relation to ‘CN code ex 07 09 ... Other vegetables, fresh or chilled ...’) and X (‘Processed fruit and vegetable products’, in relation to ‘CN code ex 07 10 Vegetables ... frozen’) of Annex I thereto, to be interpreted as meaning that vegetable products that emerge from the sum of the processes that follow the harvest, namely cleaning, slicing, blanching and freezing, are to be classified not as products within the meaning of Part IX of Annex I but as products within the meaning of Part X of Annex I?

| I.5. | If Question I.4. is answered in the affirmative, is the concept of the ‘value of the marketed production’ used in Article 103d(2) of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), in the version of Council Regulation (EC) No 361/2008 of 14 April 2008 amending Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (‘Single CMO Regulation’), to be interpreted as meaning that that value is to be calculated in such a way as to take into account only the value of the production, minus the value corresponding to the processing stage, by deducting the value of the process whereby the harvested, cleaned, sliced and blanched vegetables are transformed into quick-frozen vegetables? |
| --- | --- |

I.5.

If Question I.4. is answered in the affirmative, is the concept of the ‘value of the marketed production’ used in Article 103d(2) of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), in the version of Council Regulation (EC) No 361/2008 of 14 April 2008 amending Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (‘Single CMO Regulation’), to be interpreted as meaning that that value is to be calculated in such a way as to take into account only the value of the production, minus the value corresponding to the processing stage, by deducting the value of the process whereby the harvested, cleaned, sliced and blanched vegetables are transformed into quick-frozen vegetables?

| I.6. | Is Article 51(7) of Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors to be interpreted as meaning that a producer organisation that has submitted an operational programme for the years 2010 to 2014 which, although approved before 20 January 2010, was later (on 13 December 2013) the subject of an amended approval inasmuch as the method of calculating the value of the marketed production for that programme was changed, can still rely, for the purposes of the detailed rules governing the calculation of the value of the marketed production, on the ‘legislation applicable in 2008’ even after that amendment to the operational programme (that is to say in connection with the aid to be paid in 2014)? |
| --- | --- |

I.6.

Is Article 51(7) of Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors to be interpreted as meaning that a producer organisation that has submitted an operational programme for the years 2010 to 2014 which, although approved before 20 January 2010, was later (on 13 December 2013) the subject of an amended approval inasmuch as the method of calculating the value of the marketed production for that programme was changed, can still rely, for the purposes of the detailed rules governing the calculation of the value of the marketed production, on the ‘legislation applicable in 2008’ even after that amendment to the operational programme (that is to say in connection with the aid to be paid in 2014)?

| I.7. | If Questions I.5. and I.6. are answered in the affirmative, are Article 52(6)(a) and Article 21(1)(i) of Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector invalid in so far as, pursuant to those provisions, the stages in the processing of harvested vegetables whereby those vegetables are transformed into ‘another product listed in Annex I to the EC Treaty’ are included in the calculation of the value of the marketed production? |
| --- | --- |

I.7.

If Questions I.5. and I.6. are answered in the affirmative, are Article 52(6)(a) and Article 21(1)(i) of Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector invalid in so far as, pursuant to those provisions, the stages in the processing of harvested vegetables whereby those vegetables are transformed into ‘another product listed in Annex I to the EC Treaty’ are included in the calculation of the value of the marketed production?

| I.8. | If Question I.6. is answered in the negative (and irrespective of the answers given to the other questions), is Article 50(3)(d) of Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors invalid? |
| --- | --- |

I.8.

If Question I.6. is answered in the negative (and irrespective of the answers given to the other questions), is Article 50(3)(d) of Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors invalid?

| II.1. | Is Article 103c of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), in the version of Council Regulation (EC) No 361/2008 of 14 April 2008 amending Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (‘Single CMO Regulation’) to be interpreted as meaning that an ‘operational programme in the fruit and vegetables sector’ allows only for the promotion of the production of products capable of being classified as products within the meaning of Part IX of Annex I, but not also the promotion of investments in the processing of such products? |
| --- | --- |

II.1.

Is Article 103c of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), in the version of Council Regulation (EC) No 361/2008 of 14 April 2008 amending Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (‘Single CMO Regulation’) to be interpreted as meaning that an ‘operational programme in the fruit and vegetables sector’ allows only for the promotion of the production of products capable of being classified as products within the meaning of Part IX of Annex I, but not also the promotion of investments in the processing of such products?

| II.2. | If Question II.1. is answered in the negative, under what conditions and to what extent does Article 103c of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), in the version of Council Regulation (EC) No 361/2008 of 14 April 2008 amending Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (‘Single CMO Regulation’), allow investments in processing to be promoted in this way? |
| --- | --- |

II.2.

If Question II.1. is answered in the negative, under what conditions and to what extent does Article 103c of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), in the version of Council Regulation (EC) No 361/2008 of 14 April 2008 amending Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (‘Single CMO Regulation’), allow investments in processing to be promoted in this way?

| II.3. | Is Article 60(7) of Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors invalid? |
| --- | --- |

II.3.

Is Article 60(7) of Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors invalid?

| III.1. | Is point 23 of Annex IX to Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors to be interpreted as meaning that the only reason for the exclusion of that promotion is the fact that it takes place on external premises? |
| --- | --- |

III.1.

Is point 23 of Annex IX to Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors to be interpreted as meaning that the only reason for the exclusion of that promotion is the fact that it takes place on external premises?

| III.2. | If Question III.1. is answered in the affirmative, is point 23 of Annex IX to Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors invalid? |
| --- | --- |

III.2.

If Question III.1. is answered in the affirmative, is point 23 of Annex IX to Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors invalid?

| III.3. | If Question III.1. is answered in the affirmative and Question III.2. in the negative, is the rule laid down in point 23 of Annex IX to Commission Implementing Regulation (EU) No 543/2011 a clear and unambiguous provision to the extent that the legitimate expectations of an economic operator who [engages in] the promotion of activities which, although performed on external premises, nonetheless form part of his business are not protected, despite the fact that that promotion was the subject of an assurance or approval given by the domestic authorities in full knowledge of the facts? |
| --- | --- |

III.3.

If Question III.1. is answered in the affirmative and Question III.2. in the negative, is the rule laid down in point 23 of Annex IX to Commission Implementing Regulation (EU) No 543/2011 a clear and unambiguous provision to the extent that the legitimate expectations of an economic operator who [engages in] the promotion of activities which, although performed on external premises, nonetheless form part of his business are not protected, despite the fact that that promotion was the subject of an assurance or approval given by the domestic authorities in full knowledge of the facts?

| IV. | Does the fact that the Court of Justice does not limit in a manner beneficial to the person concerned the effects of a judgment (within the meaning of the second paragraph of Article 264 TFEU) which, by virtue of a new interpretation of EU law or a declaration as to the invalidity of an act of EU law previously regarded as valid, is detrimental in law to that person, have the effect of preventing that person from relying on the principle of legal certainty in a particular case before a national court, where it is established that he is acting in good faith? |
| --- | --- |

IV.

Does the fact that the Court of Justice does not limit in a manner beneficial to the person concerned the effects of a judgment (within the meaning of the second paragraph of Article 264 TFEU) which, by virtue of a new interpretation of EU law or a declaration as to the invalidity of an act of EU law previously regarded as valid, is detrimental in law to that person, have the effect of preventing that person from relying on the principle of legal certainty in a particular case before a national court, where it is established that he is acting in good faith?

---

(1)  OJ 2007 L 350, p. 1.

(2)  OJ 2011 L 157, p. 1.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/12 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/12

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Request for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 4 October 2016 — ZPT AD v Narodno sabranie na Republika Bulgaria, Varhoven administrativen sad, Natsionalna agentsia za prihodite

(Case C-518/16)

(2016/C 462/14)

Language of the case: Bulgarian

Referring court

Sofiyski gradski sad

Parties to the main proceedings

Applicant: ZPT AD

Defendants: Narodno sabranie na Republika Bulgaria, Varhoven administrativen sad, Natsionalna agentsia za prihodite

Questions referred

| 1. | Do implementing provisions of EU law such as Regulation No 1998/2006 (1) have direct effect and apply directly, and, if so, does a provision of national law which narrows or restricts the applicable scope of the EU legal provisions infringe those principles? |
| --- | --- |

1.

Do implementing provisions of EU law such as Regulation No 1998/2006 (1) have direct effect and apply directly, and, if so, does a provision of national law which narrows or restricts the applicable scope of the EU legal provisions infringe those principles?

| 2. | Is State aid granted in the form of tax relief compatible with competition in the internal market, where such aid is invested in assets used for the manufacture of products, some of which are exported to third countries or to Member States? |
| --- | --- |

2.

Is State aid granted in the form of tax relief compatible with competition in the internal market, where such aid is invested in assets used for the manufacture of products, some of which are exported to third countries or to Member States?

| 3. | Does the manufacture of products for export through the use of assets obtained by means of State aid come within the scope of activity directly linked to the quantities exported within the meaning of Article 1(d) of Regulation No 1998/2006? If the answer is in the negative, are Member States entitled to provide in national legislation for additional restrictions on exporters of products manufactured using assets that are the result of tax relief investment? If the answer is in the affirmative, how does that rule relate to the provisions of Article 35 TFEU concerning the prohibition of quantitative restrictions on exports between Member States and all measures having equivalent effect and does it constitute discrimination and infringement of the free movement of goods? |
| --- | --- |

3.

Does the manufacture of products for export through the use of assets obtained by means of State aid come within the scope of activity directly linked to the quantities exported within the meaning of Article 1(d) of Regulation No 1998/2006? If the answer is in the negative, are Member States entitled to provide in national legislation for additional restrictions on exporters of products manufactured using assets that are the result of tax relief investment? If the answer is in the affirmative, how does that rule relate to the provisions of Article 35 TFEU concerning the prohibition of quantitative restrictions on exports between Member States and all measures having equivalent effect and does it constitute discrimination and infringement of the free movement of goods?

| 4. | Does Article 1 of Regulation No 1998/2006 allow a legal person to be refused recognition of the right to de minimis financial aid, arising from EU law, before the expiry of the four-year period laid down in national law, in which the investment should be made, solely on the ground that in that period it invested resources in, inter alia, independent, separate structures of its business from which exports were made? |
| --- | --- |

4.

Does Article 1 of Regulation No 1998/2006 allow a legal person to be refused recognition of the right to de minimis financial aid, arising from EU law, before the expiry of the four-year period laid down in national law, in which the investment should be made, solely on the ground that in that period it invested resources in, inter alia, independent, separate structures of its business from which exports were made?

---

(1)  Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid (OJ 2006 L 379, p. 5).

---

General Court

| 12.12.2016 | EN | Official Journal of the European Union | C 462/14 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/14

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Judgment of the General Court of 27 October 2016 — El Corte Inglés v EUIPO — English Cut (The English Cut)

(Case T-515/12) (1)

((EU trade mark - Opposition proceedings - Application for EU word mark The English Cut - Earlier EU figurative and national word marks El Corte Inglés - Relative ground for refusal - Article 8(5) of Regulation (EC) No 207/2009 - Reputation))

(2016/C 462/15)

Language of the case: Spanish

Parties

Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: J. L. Rivas Zurdo, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO) (represented by: J. Crespo Carrillo, acting as Agent)

Other party to the proceedings before the Board of Appeal of EUIPO: The English Cut, SL (Malaga, Spain)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 6 September 2012 (Case R 1673/2011-1), relating to opposition proceedings between El Corte Inglés and The English Cut.

Operative part of the judgment

The Court:

| 1) | Dismisses the action; |
| --- | --- |

1)

Dismisses the action;

| 2) | Orders El Corte Inglés, SA to bear its own costs and those incurred by the European Union Intellectual Property Office (EUIPO). |
| --- | --- |

2)

Orders El Corte Inglés, SA to bear its own costs and those incurred by the European Union Intellectual Property Office (EUIPO).

---

(1)  OJ C 26, 26.1.2013.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/14 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/14

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Judgment of the General Court of 27 October 2016 — ECB v Cerafogli

(Case T-787/14 P) (1)

((Appeal - Civil service - ECB Staff - Access to documents - Documents relating to the dispute between the parties in the proceedings - Partial refusal of access - Rule of correspondence between the application and the complaint - Plea of illegality))

(2016/C 462/16)

Language of the case: English

Parties

Appellant: European Central Bank (represented initially by E. Carlini, M. López Torres and F. Malfrère, and subsequently by E. Carlini and F. Malfrère, acting as Agents, assisted by B. Wägenbaur, lawyer)

Other party to the proceedings: Maria Concetta Cerafogli (Rome, Italy) (represented by: S. Pappas, lawyer)

Intervener in support of the applicant: European Commission (represented initially by J. Currall and G. Gattinara, and subsequently by G. Gattinara, acting as Agents)

Re:

Appeal brought against the judgment of the European Union Civil Service Tribunal (Second Chamber) of 18 September 2014 in Cerafogli v ECB (F-26/12, EU:F:2014:218) seeking to have that judgment set aside.

Operative part of the judgment

The Court:

| 1. | Dismisses the appeal; |
| --- | --- |

1.

Dismisses the appeal;

| 2. | Orders the European Central Bank (ECB) to bear its own costs and to pay those incurred by Ms Maria Concetta Cerafogli; |
| --- | --- |

2.

Orders the European Central Bank (ECB) to bear its own costs and to pay those incurred by Ms Maria Concetta Cerafogli;

| 3. | Orders the European Commission to bear its own costs. |
| --- | --- |

3.

Orders the European Commission to bear its own costs.

---

(1)  OJ C 46, 9.2.2015.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/15 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/15

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Judgment of the General Court of 28 October 2016 — Unicorn v EUIPO — Mercilink Equipment Leasing (UNICORN-čerpací stanice)

(Case T-123/15) (1)

((EU trade mark - Opposition proceedings - Application for the EU word mark UNICORN-čerpací stanice - Earlier national word and figurative marks UNICORN - Relative ground for refusal - Reputation - Article 8(5) of Regulation (EC) No 207/2009))

(2016/C 462/17)

Language of the case: English

Parties

Applicant: Unicorn a.s. (Prague, Czech Republic) (represented by: L. Lorenc, lawyer)

Defendant: European Union Intellectual Property Office (represented by: M. Rajh, acting as Agent)

Other party to the proceedings before the Board of Appeal of EUIPO: Mercilink Equipment Leasing Ltd (Limassol, Cyprus)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 13 January 2015 (Case R 153/2014-5), concerning opposition proceedings between Unicorn and Mercilink Equipment Leasing.

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
| --- | --- |

1.

Dismisses the action;

| 2. | Orders Unicorn a.s. to pay the costs. |
| --- | --- |

2.

Orders Unicorn a.s. to pay the costs.

---

(1)  OJ C 171, 26.5.2015.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/16 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/16

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Judgment of the General Court of 28 October 2016 — Unicorn v EUIPO — Mercilink Equipment Leasing (UNICORN)

(Case T-124/15) (1)

((EU trade mark - Opposition proceedings - Application for the EU figurative mark UNICORN - Earlier national word and figurative marks UNICORN and earlier national figurative mark representing a unicorn’s head - Relative ground for refusal - Reputation - Article 8(5) of Regulation (EC) No 207/2009))

(2016/C 462/18)

Language of the case: English

Parties

Applicant: Unicorn a.s. (Prague, Czech Republic) (represented by: L. Lorenc, lawyer)

Defendant: European Union Intellectual Property Office (represented by: M. Rajh, acting as Agent)

Other party to the proceedings before the Board of Appeal of EUIPO: Mercilink Equipment Leasing Ltd (Limassol, Cyprus)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 13 January 2015 (Case R 149/2014-5), concerning opposition proceedings between Unicorn and Mercilink Equipment Leasing.

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
| --- | --- |

1.

Dismisses the action;

| 2. | Orders Unicorn a.s. to pay the costs. |
| --- | --- |

2.

Orders Unicorn a.s. to pay the costs.

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(1)  OJ C 171, 26.5.2015.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/16 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/16

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Judgment of the General Court of 28 October 2016 — Unicorn v EUIPO — Mercilink Equipment Leasing (UNICORN)

(Case T-125/15) (1)

((EU trade mark - Opposition proceedings - Application for the EU figurative mark UNICORN - Earlier national word and figurative marks UNICORN and earlier national figurative mark representing a unicorn’s head - Relative ground for refusal - Reputation - Article 8(5) of Regulation (EC) No 207/2009))

(2016/C 462/19)

Language of the case: English

Parties

Applicant: Unicorn a.s. (Prague, Czech Republic) (represented by: L. Lorenc, lawyer)

Defendant: European Union Intellectual Property Office (represented by: M. Rajh, acting as Agent)

Other party to the proceedings before the Board of Appeal of EUIPO: Mercilink Equipment Leasing Ltd (Limassol, Cyprus)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 13 January 2015 (Case R 150/2014-5), concerning opposition proceedings between Unicorn and Mercilink Equipment Leasing.

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
| --- | --- |

1.

Dismisses the action;

| 2. | Orders Unicorn a.s. to pay the costs. |
| --- | --- |

2.

Orders Unicorn a.s. to pay the costs.

---

(1)  OJ C 171, 26.5.2015.

---

| 12.12.2016 | EN | Official Journal of the European Union | C 462/17 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/17

---

Judgment of the General Court of 26 October 2016 — Hamcho and Hamcho International v Council

(Case T-153/15) (1)

((Common foreign and security policy - Restrictive measures against Syria - Freezing of funds - Annulment of the earlier measures by a judgment of the General Court - New measures including the names of the applicants on the lists - Action for annulment - Article 76(d) of the Rules of Procedure - Content of the application - Admissibility - Obligation to state reasons - Burden of proof - Right to property - Freedom to conduct business))

(2016/C 462/20)

Language of the case: French

Parties

Applicants: Mohamed Hamcho (Damascus, Syria) and Hamcho International (Damascus) (represented by: A. Boesch, D. Amaudruz and M. Ponsard, lawyers)

Defendant: Council of the European Union (represented by: G. Étienne and S. Kyriakopoulou, acting as agents)

Re:

Action brought on the basis of Article 263 TFEU seeking the annulment of Council Implementing Decision (CFSP) 2015/117/CFSP of 26 January 2015 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2015 L 20, p. 85) and of Council Implementing Regulation (EU) 2015/108 of 26 January 2015 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2015 L 20, p. 2), in that the names of the applicants have been included on the list of persons and bodies subject to restrictive measures.

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
| --- | --- |

1.

Dismisses the action;

| 2. | Orders Mr Mohamed Hamcho and Hamcho International to bear their own costs and to pay those incurred by the Council of the European Union in the proceedings at first instance and in the proceedings for interim measures. |
| --- | --- |

2.

Orders Mr Mohamed Hamcho and Hamcho International to bear their own costs and to pay those incurred by the Council of the European Union in the proceedings at first instance and in the proceedings for interim measures.

---

(1)  OJ C 190, 8.6.2015.

---

| 12.12.2016 | EN | Official Journal of the European Union | C 462/18 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/18

---

Judgment of the General Court of 26 October 2016 — Jaber v Council

(Case T-154/15) (1)

((Common Foreign and Security Policy - Restrictive measures taken against Syria - Freezing of funds - Annulment of prior measures by a judgment of the General Court - New measures including the applicant's name on the lists - Action for annulment - Article 76(d) of the Rules of Procedure - Content of the application - Admissibility - Obligation to state reasons - Burden of proof - Right to property - Freedom to conduct a business))

(2016/C 462/21)

Language of the case: French

Parties

Applicant: Aiman Jaber (Lattakia, Syria) (represented by: A. Boesch, D. Amaudruz and M. Ponsard, lawyers)

Defendant: Council of the European Union (represented by: B. Driessen and S. Kyriakopoulou, acting as Agents)

Re:

Action brought on the basis of Article 263 TFEU seeking the annulment of Council Implementing Decision 2015/117/CFSP of 26 January 2015 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2015, L 20, p. 85), and of Council Implementing Regulation (EU) 2015/108 of 26 January 2015 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2015, L 20, p. 2), in so far as the name of the applicant is included in the list of persons and entities subject to the restrictive measures.

Operative part of the judgment

The Court:

| 1) | Dismisses the action; |
| --- | --- |

1)

Dismisses the action;

| 2) | Orders Mr Aiman Jaber to bear his own costs and to pay those incurred by the Council of the European Union in the context of the present proceedings and during the proceedings for an interim order. |
| --- | --- |

2)

Orders Mr Aiman Jaber to bear his own costs and to pay those incurred by the Council of the European Union in the context of the present proceedings and during the proceedings for an interim order.

---

(1)  OJ C 190, 8.6.2015.

---

| 12.12.2016 | EN | Official Journal of the European Union | C 462/18 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/18

---

Judgment of the General Court of 26 October 2016 — Kaddour v Council

(Case T-155/15) (1)

((Common Foreign and Security Policy - Restrictive measures taken against Syria - Freezing of funds - Annulment of prior measures by a judgment of the General Court - New measures including the applicant's name on the lists - Action for annulment - Article 76(d) of the Rules of Procedure - Content of the application - Admissibility - Obligation to state reasons - Burden of proof - Right to property - Freedom to conduct a business))

(2016/C 462/22)

Language of the case: French

Parties

Applicant: Khaled Kaddour (Damascus, Syria) (represented: initially by A. Boesch, D. Amaudruz, M. Ponsard, lawyers, V. Davies, Solicitor, and T. Eicke, QC, then by V. Davies, T. Eicke and V. Wilkinson, Solicitor)

Defendant: Council of the European Union (represented by: G. Étienne and S. Kyriakopoulou, acting as Agents)

Re:

Action brought on the basis of Article 263 TFEU seeking the annulment of Council Implementing Decision 2015/117/CFSP of 26 January 2015 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria (OJ 2015, L 20, p. 85), and of Council Implementing Regulation (EU) 2015/108 of 26 January 2015 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria (OJ 2015, L 20, p. 2), in so far as the name of the applicant is included in the list of persons and entities subject to the restrictive measures.

Operative part of the judgment

The Court:

| 1) | Dismisses the action; |
| --- | --- |

1)

Dismisses the action;

| 2) | Orders Mr Khaled Kaddour to bear his own costs and those incurred by the Council of the European Union in the context of the present proceedings and the proceedings for an interim order. |
| --- | --- |

2)

Orders Mr Khaled Kaddour to bear his own costs and those incurred by the Council of the European Union in the context of the present proceedings and the proceedings for an interim order.

---

(1)  OJ C 190, 8.6.2015.

---

| 12.12.2016 | EN | Official Journal of the European Union | C 462/19 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/19

---

Judgment of the General Court of 28 October 2016 — Unicorn v EUIPO — Mercilink Equipment Leasing (UNICORN)

(Case T-201/15) (1)

((EU trade mark - Invalidity proceedings - EU word mark UNICORN - Earlier national word and figurative marks UNICORN - Article 53(1)(a) and Article 8(5) of Regulation (EC) No 207/2009 - Reputation))

(2016/C 462/23)

Language of the case: English

Parties

Applicant: Unicorn a.s. (Prague, Czech Republic) (represented by: L. Lorenc, lawyer)

Defendant: European Union Intellectual Property Office (represented by: M. Rajh, acting as Agent)

Other party to the proceedings before the Board of Appeal of EUIPO: Mercilink Equipment Leasing Ltd (Limassol, Cyprus)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 16 February 2015 (Case R 1699/2014-5), concerning invalidity proceedings between Unicorn and Mercilink Equipment Leasing.

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
| --- | --- |

1.

Dismisses the action;

| 2. | Orders Unicorn a.s. to pay the costs. |
| --- | --- |

2.

Orders Unicorn a.s. to pay the costs.

---

(1)  OJ C 198, 15.6.2015.

---

| 12.12.2016 | EN | Official Journal of the European Union | C 462/20 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/20

---

Judgment of the General Court of 27 October 2016 — CW v Parliament

(Case T-309/15 P) (1)

((Appeal - Civil service - Officials - Psychological harassment - Duty of the administration to provide assistance - Article 24 of the Staff Regulations - Request for assistance - Provisional distancing measures - Duty to have regard for the welfare of staff - Responsibility - Claim for damages - Decision rejecting the administrative complaint - Distortion of the evidence - Error of law))

(2016/C 462/24)

Language of the case: English

Parties

Appellant: CW (Brussels, Belgium) (represented by: C. Bernard-Glanz, lawyer)

Other party to the proceedings: European Parliament (represented by: M. Dean and E. Taneva, acting as Agents)

Re:

Appeal against the judgment of the European Union Civil Service Tribunal (First Chamber) of 26 March 2015, CW v Parliament (F-124/13, EU:F:2015:23), seeking the setting aside of that judgment.

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 26 March 2015, CW v Parliament (F-124/13); |
| --- | --- |

1.

Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 26 March 2015, CW v Parliament (F-124/13);

| 2. | Refers the case to a chamber of the General Court other than that which ruled on the present appeal; |
| --- | --- |

2.

Refers the case to a chamber of the General Court other than that which ruled on the present appeal;

| 3. | Reserves the costs. |
| --- | --- |

3.

Reserves the costs.

---

(1)  OJ C 270, 17.8.2015.

---

| 12.12.2016 | EN | Official Journal of the European Union | C 462/20 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/20

---

Judgment of the General Court of 27 October 2016 — Commission v CX

(Case T-493/15 P) (1)

((Appeal - Civil Service - Officials - Disciplinary procedure - Disciplinary sanction - Removal from post - Right to be heard - Article 22 of Annex IX to the Staff Regulations - Errors of law - Distortion of the evidence - Incomplete examination of the facts and evidence))

(2016/C 462/25)

Language of the case: French

Parties

Appellant: European Commission (represented by: C. Ehrbar and F. Simonetti, acting as Agents)

Other party to the proceedings: CX (Enghien, Belgium) (represented by: É. Boigelot, lawyer)

Re:

Appeal brought against the judgment of the European Union Civil Service Tribunal (First Chamber) of 18 June 2015, CX v Commission (F-5/14, EU:F:2015:61), seeking to have that judgment set aside.

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 18 June 2015, CX v Commission (F-5/14, EU:F:2015:61); |
| --- | --- |

1.

Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) of 18 June 2015, CX v Commission (F-5/14, EU:F:2015:61);

| 2. | Refers the case back to a Chamber of the General Court of the European Union other than the Chamber which has ruled on the present appeal; |
| --- | --- |

2.

Refers the case back to a Chamber of the General Court of the European Union other than the Chamber which has ruled on the present appeal;

| 3. | Reserves the costs. |
| --- | --- |

3.

Reserves the costs.

---

(1)  OJ C 371, 9.11.2015.

---

| 12.12.2016 | EN | Official Journal of the European Union | C 462/21 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/21

---

Judgment of the General Court of 27 October 2016 — Spa Monopole v EUIPO — YTL Hotels & Properties (SPA VILLAGE)

(Case T-625/15) (1)

((European Union trade mark - Opposition proceedings - Application for the European Union word mark SPA VILLAGE - Earlier Benelux word mark SPA - Relative ground for refusal - Article 8(5) of Regulation (EC) No 207/2009))

(2016/C 462/26)

Language of the case: French

Parties

Applicant: Spa Monopole, compagnie fermière de Spa SA/NV (Spa, Belgium) (represented by: E. Cornu and É. De Gryse, lawyers)

Defendant: European Union Intellectual Property Office (represented by: A. Folliard-Monguiral, acting as Agent)

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: YTL Hotels & Properties Sdn Bhd (Kuala Lumpur, Malaysia) (represented by: M. Edenborough, lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 11 September 2015 (Case R 1954/2013-4) relating to opposition proceedings between Spa Monopole, compagnie fermière de Spa SA and YTL Hotels & Properties.

Operative part of the judgment

| 1) | The decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 September 2015 (Case R 1954/2013-4) relating to opposition proceedings between Spa Monopole, compagnie fermière de Spa SA and YTL Hotels & Properties Sdn Bhd is annulled in so far as it rejects the opposition to registration of the European Union word mark SPA VILLAGE, in respect of ‘services consisting of the provision of food and drink; cafés restaurants; cafeterias; snack-bars; self-service restaurants; hotel restaurant services; restaurant services; catering and buffet services; bar services; hotel services’ in Class 43 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended. |
| --- | --- |

1)

The decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 September 2015 (Case R 1954/2013-4) relating to opposition proceedings between Spa Monopole, compagnie fermière de Spa SA and YTL Hotels & Properties Sdn Bhd is annulled in so far as it rejects the opposition to registration of the European Union word mark SPA VILLAGE, in respect of ‘services consisting of the provision of food and drink; cafés restaurants; cafeterias; snack-bars; self-service restaurants; hotel restaurant services; restaurant services; catering and buffet services; bar services; hotel services’ in Class 43 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended.

| 2) | EUIPO and YTL Hotels & Properties are ordered to pay the costs. |
| --- | --- |

2)

EUIPO and YTL Hotels & Properties are ordered to pay the costs.

---

(1)  OJ C 16, 18.1.2016.

---

| 12.12.2016 | EN | Official Journal of the European Union | C 462/22 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/22

---

Judgment of the General Court of 28 October 2016 — LA TARTE TROPÉZIENNE v EUIPO (LA TARTE TROPÉZIENNE 1955. SAINT-TROPEZ)

(Case T-7/16) (1)

((European Union trade mark - International registration designating the European Union - Figurative mark LA TARTE TROPÉZIENNE 1955. SAINT-TROPEZ - Absolute ground for refusal - Article 7(1)(c) of Regulation (EC) No 207/2009))

(2016/C 462/27)

Language of the case: French

Parties

Applicant: LA TARTE TROPÉZIENNE (Cogolin, France) (represented by: T. Cuche, lawyer)

Defendant: European Union Intellectual Property Office (represented by: D. Hanf, acting as Agent)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 26 October 2015 (Case R 720/2015-4) concerning the international registration designating the European Union of figurative mark LA TARTE TROPÉZIENNE 1955. SAINT-TROPEZ.

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
| --- | --- |

1.

Dismisses the action;

| 2. | Orders LA TARTE TROPÉZIENNE to pay the costs. |
| --- | --- |

2.

Orders LA TARTE TROPÉZIENNE to pay the costs.

---

(1)  OJ C 90, 7.3.2016.

---

| 12.12.2016 | EN | Official Journal of the European Union | C 462/22 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/22

---

Judgment of the General Court of 27 October 2016 — Caffè Nero Group v EUIPO (CAFFÈ NERO)

(Case T-29/16) (1)

(((EU trade mark - Application for the EU word mark CAFFÈ NERO - Absolute grounds for refusal - No distinctive character - Descriptiveness - Mark of such a nature as to deceive the public - Article 7(1)(b), (c) and (g) of Regulation (EC) No 207/2009))

(2016/C 462/28)

Language of the case: English

Parties

Applicant: Caffè Nero Group Ltd (London, United Kingdom) (represented by: L. Cassidy, Solicitor)

Defendant: European Union Intellectual Property Office (represented by: M. Rajh, acting as Agent)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 4 November 2015 (Case R 410/2015-1), relating to the application for registration of the word sign CAFFÈ NERO as an EU trade mark.

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
| --- | --- |

1.

Dismisses the action;

| 2. | Orders Caffè Nero Group Ltd to pay the costs. |
| --- | --- |

2.

Orders Caffè Nero Group Ltd to pay the costs.

---

(1)  OJ C 106, 21.3.2016.

---

| 12.12.2016 | EN | Official Journal of the European Union | C 462/23 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/23

---

Judgment of the General Court of 27 October 2016 — Caffè Nero Group v EUIPO (CAFFÈ NERO)

(Case T-37/16) (1)

((EU trade mark - Application for the EU figurative mark CAFFÈ NERO - Absolute grounds for refusal - No distinctive character - Descriptiveness - Mark of such a nature as to deceive the public - Article 7(1)(b), (c) and (g) of Regulation (EC) No 207/2009))

(2016/C 462/29)

Language of the case: English

Parties

Applicant: Caffè Nero Group Ltd (London, United Kingdom) (represented by: L. Cassidy, Solicitor)

Defendant: European Union Intellectual Property Office (represented by: M. Rajh, acting as Agent)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 6 November 2015 (Case R 954/2015-1), relating to the application for registration of the figurative sign CAFFÈ NERO as an EU trade mark.

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
| --- | --- |

1.

Dismisses the action;

| 2. | Orders Caffè Nero Group Ltd to pay the costs. |
| --- | --- |

2.

Orders Caffè Nero Group Ltd to pay the costs.

---

(1)  OJ C 106, 21.3.2016.

---

| 12.12.2016 | EN | Official Journal of the European Union | C 462/23 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/23

---

Order of the General Court of 19 October 2016 — E-Control v ACER

(Case T-671/15) (1)

((Action for annulment - Energy - Regulation (EC) No 713/2009 - Regulation (EC) No 714/2009 - Opinion of ACER - National regulatory authorities’ decisions approving the methods of allocation of cross-border electricity transmission capacity - Central-East Europe region - Compatibility - Act not open to challenge - Inadmissibility))

(2016/C 462/30)

Language of the case: English

Parties

Applicant: Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control) (Vienna, Austria) (represented by: F. Schuhmacher, lawyer)

Defendant: Agency for the Cooperation of Energy Regulators (ACER) (represented by: E. Tremmel, acting as Agent)

Re:

Application under Article 263 TFEU for annulment of Opinion No 09/2015 of ACER of 23 September 2015 on the compliance of national regulatory authorities’ decisions approving the methods of allocation of cross-border transmission capacity in the Central-East Europe region with Regulation (EC) No 714/2009 and the Guidelines on the management and allocation of available transfer capacity of interconnections between national systems contained in Annex I thereto.

Operative part of the order

| 1. | The action is dismissed as inadmissible. |
| --- | --- |

1.

The action is dismissed as inadmissible.

| 2. | There is no longer any need to rule on the applications to intervene of the Republic of Austria, the Republic of Poland, Wirtschaftskammer Österreich, Verbund AG and Polskie Sieci Elektroenergetyczne S.A. |
| --- | --- |

2.

There is no longer any need to rule on the applications to intervene of the Republic of Austria, the Republic of Poland, Wirtschaftskammer Österreich, Verbund AG and Polskie Sieci Elektroenergetyczne S.A.

| 3. | Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control) shall bear its own costs and shall pay those incurred by the Agency for the Cooperation of Energy Regulators (ACER), including those relating to the interim proceedings. |
| --- | --- |

3.

Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control) shall bear its own costs and shall pay those incurred by the Agency for the Cooperation of Energy Regulators (ACER), including those relating to the interim proceedings.

| 4. | The Republic of Austria, the Republic of Poland, Wirtschaftskammer Österreich, Verbund AG and Polskie Sieci Elektroenergetyczne S.A. shall bear their own costs relating to the applications to intervene. |
| --- | --- |

4.

The Republic of Austria, the Republic of Poland, Wirtschaftskammer Österreich, Verbund AG and Polskie Sieci Elektroenergetyczne S.A. shall bear their own costs relating to the applications to intervene.

---

(1)  OJ C 38, 1.2.2016.

---

| 12.12.2016 | EN | Official Journal of the European Union | C 462/24 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/24

---

Order of the General Court of 18 October 2016 — Laboratoire de la mer v EUIPO — Boehringer Ingelheim Pharma (RESPIMER)

(Case T-109/16) (1)

((EU trade mark - Opposition proceedings - Application for EU word mark RESPIMER - Earlier EU word mark RESPIMAT - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Action manifestly lacking any foundation in law))

(2016/C 462/31)

Language of the case: English

Parties

Applicant: Laboratoire de la mer (Saint-Malo, France) (represented by: S. Szilvasi, lawyer)

Defendant: European Union Intellectual Property Office (represented by: D. Hanf, acting as Agent)

Other party to the proceedings before the Board of Appeal of EUIPO: Boehringer Ingelheim Pharma GmbH & Co. KG (Ingelheim, Germany)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 21 January 2016 (Case R 3109/2014-5), relating to opposition proceedings between Boehringer Ingelheim Pharma and Laboratoire de la mer.

Operative part of the judgment

The Court:

| 1. | Dismisses the action; |
| --- | --- |

1.

Dismisses the action;

| 2. | Orders Laboratoire de la mer to pay the costs. |
| --- | --- |

2.

Orders Laboratoire de la mer to pay the costs.

---

(1)  OJ C 165, 10.5.2016.

---

| 12.12.2016 | EN | Official Journal of the European Union | C 462/25 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/25

---

Action brought on 5 September 2016 — Starbucks and Starbucks Manufacturing Emea v Commission

(Case T-636/16)

(2016/C 462/32)

Language of the case: English

Parties

Applicants: Starbucks Corp. (Seattle, Washington, United States) and Starbucks Manufacturing Emea BV (Amsterdam, Netherlands) (represented by: S. Verschuur, M. Petite and M-A. Stroungi, lawyers)

Defendants: European Commission

Form of order sought

The applicants claim that the Court should:

| — | annul Articles 1-4 of the Commission’s decision of 21 October 2015 on State Aid SA.38374 (2014/C ex 2014/NN) implemented by the Netherlands to Starbucks (‘the contested decision’); |
| --- | --- |

—

annul Articles 1-4 of the Commission’s decision of 21 October 2015 on State Aid SA.38374 (2014/C ex 2014/NN) implemented by the Netherlands to Starbucks (‘the contested decision’);

| — | in the alternative, annul Article 2(1) of the contested decision; and |
| --- | --- |

—

in the alternative, annul Article 2(1) of the contested decision; and

| — | order the Commission to pay the costs of this procedure. |
| --- | --- |

—

order the Commission to pay the costs of this procedure.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

| 1. | First plea in law, alleging that the Commission violated Article 107(1) TFEU by committing a material error of law and a manifest error of assessment when interpreting and applying the reference framework for purposes of assessing whether the APA confers a selective advantage. |
| --- | --- |

1.

First plea in law, alleging that the Commission violated Article 107(1) TFEU by committing a material error of law and a manifest error of assessment when interpreting and applying the reference framework for purposes of assessing whether the APA confers a selective advantage.

| 2. | Second plea in law, alleging that the Commission violated Article 107(1) TFEU by incorrectly establishing that the APA conferred an advantage, thereby committing various manifest errors of fact and assessment, failing to conduct a diligent and impartial examination and giving an inadequate statement of reasons. |
| --- | --- |

2.

Second plea in law, alleging that the Commission violated Article 107(1) TFEU by incorrectly establishing that the APA conferred an advantage, thereby committing various manifest errors of fact and assessment, failing to conduct a diligent and impartial examination and giving an inadequate statement of reasons.

| 3. | Third plea in law, alleging that the Commission violated Article 16 of Council Regulation (EU) 2015/1589 (1) by wrongly quantifying the alleged aid, thereby committing a material error of law and a manifest error of assessment. |
| --- | --- |

3.

Third plea in law, alleging that the Commission violated Article 16 of Council Regulation (EU) 2015/1589 (1) by wrongly quantifying the alleged aid, thereby committing a material error of law and a manifest error of assessment.

---

(1)  Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015, L 248, p. 9).

---

| 12.12.2016 | EN | Official Journal of the European Union | C 462/26 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/26

---

Action brought on 30 September 2016 — Laboratorios Ern v EUIPO — Ascendo Medienagentur (SLIMDYNAMICS)

(Case T-700/16)

(2016/C 462/33)

Language in which the application was lodged: English

Parties

Applicant: Laboratorios Ern, SA (Barcelona, Spain) (represented by: S. Correa Rodríguez, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Ascendo Medienagentur AG (Gamprin-Bendern, Liechtenstein)

Details of the proceedings before EUIPO

Applicant: Other party to the proceedings before the Board of Appeal

Trade mark at issue: EU figurative mark containing the word element ‘SLIMDYNAMICS’ — Application for registration No 12 882 304

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 22 July 2016 in Joined Cases R 1814/2015-4 and R 1780/2015-4

Form of order sought

The applicant claims that the Court should:

| — | revoke the contested decision regarding the granting of goods in class 5 and reject EUTM No. 012882304 SLIM DYNAMICS & design in class 5; and |
| --- | --- |

—

revoke the contested decision regarding the granting of goods in class 5 and reject EUTM No. 012882304 SLIM DYNAMICS & design in class 5; and

| — | order EUIPO and, in case it decides to intervene in the present proceedings, ASCENDO MEDIENAGENTUR AG, to pay the costs. |
| --- | --- |

—

order EUIPO and, in case it decides to intervene in the present proceedings, ASCENDO MEDIENAGENTUR AG, to pay the costs.

Plea in law

| — | Infringement of Article 8 (1) (b) of Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 8 (1) (b) of Regulation No 207/2009.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/26 |
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12.12.2016

EN

Official Journal of the European Union

C 462/26

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Action brought on 6 October 2016 — La Patrouille v EUIPO — Alpha Industries (Representation of an angular figure)

(Case T-709/16)

(2016/C 462/34)

Language in which the application was lodged: French

Parties

Applicant: La Patrouille (Pantin, France) (represented by: A. Lakits-Josse, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Alpha Industries, Inc. (Chantilly, Virginia, United States of America)

Details of the proceedings before EUIPO

Applicant for the trade mark at issue: Applicant

Trade mark at issue: European Union figurative mark — Application for registration No 11 778 727

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 25 July 2016 in Case R 2332/2015-5

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision inasmuch as it ‘[annulled] the contested decision and [rejected] the opposition insofar as it concerns registration of the mark at issue for the following goods: ‘school bags; briefcases; school satchels’ in Class 18 and ‘[rejected] the remainder of the appeal’ and authorise registration of the mark applied for in respect of all the goods; |
| --- | --- |

—

annul the contested decision inasmuch as it ‘[annulled] the contested decision and [rejected] the opposition insofar as it concerns registration of the mark at issue for the following goods: ‘school bags; briefcases; school satchels’ in Class 18 and ‘[rejected] the remainder of the appeal’ and authorise registration of the mark applied for in respect of all the goods;

| — | order EUIPO to pay the costs. |
| --- | --- |

—

order EUIPO to pay the costs.

Pleas in law

| — | Lack of likelihood of confusion between the marks at issue; |
| --- | --- |

—

Lack of likelihood of confusion between the marks at issue;

| — | The Board of Appeal based its finding of a likelihood of confusion on the alleged intellectual resemblances, yet they do not immediately strike the consumer. |
| --- | --- |

—

The Board of Appeal based its finding of a likelihood of confusion on the alleged intellectual resemblances, yet they do not immediately strike the consumer.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/27 |
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12.12.2016

EN

Official Journal of the European Union

C 462/27

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Action brought on 6 October 2016 — La Patrouille v EUIPO — Alpha Industries (AEROBATIX)

(Case T-710/16)

(2016/C 462/35)

Language in which the application was lodged: French

Parties

Applicant: La Patrouille (Pantin, France) (represented by: A. Lakits-Josse, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Alpha Industries, Inc. (Chantilly, Virginia, United States of America)

Details of the proceedings before EUIPO

Applicant for the trade mark at issue: Applicant

Trade mark at issue: European Union figurative mark containing the word element ‘AEROBATIX’ — Application for registration No 13 285 952

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 25 July 2016 in Case R 2344/2015-5

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision inasmuch as it rejected the mark applied for in respect of the goods ‘clothing, shoes; headgear’ and authorise registration of the mark applied for in respect of those goods; |
| --- | --- |

—

annul the contested decision inasmuch as it rejected the mark applied for in respect of the goods ‘clothing, shoes; headgear’ and authorise registration of the mark applied for in respect of those goods;

| — | order EUIPO to pay the costs. |
| --- | --- |

—

order EUIPO to pay the costs.

Pleas in law

| — | Lack of likelihood of confusion |
| --- | --- |

—

Lack of likelihood of confusion

| — | The Board of Appeal based its finding of a likelihood of confusion, in essence, on the alleged intellectual resemblances, yet they do not immediately strike the consumer. |
| --- | --- |

—

The Board of Appeal based its finding of a likelihood of confusion, in essence, on the alleged intellectual resemblances, yet they do not immediately strike the consumer.

| — | The Board of Appeal disregarded the importance of the word element AEROBATIX which, taken together with the figurative element, is sufficient to remove all likelihood of confusion. |
| --- | --- |

—

The Board of Appeal disregarded the importance of the word element AEROBATIX which, taken together with the figurative element, is sufficient to remove all likelihood of confusion.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/28 |
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12.12.2016

EN

Official Journal of the European Union

C 462/28

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Action brought on 5 October 2016 — Deutsche Lufthansa v Commission

(Case T-712/16)

(2016/C 462/36)

Language of the case: English

Parties

Applicant: Deutsche Lufthansa AG (Cologne, Germany) (represented by: S. Völcker, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul, in whole or in part, Commission Decision C(2016) 4964 final of 25 July 2016 in Case No M.3770 — Lufthansa/Swiss — Commission decision on Lufthansa’s request for a partial waiver of the commitments concerning the Zurich-Stockholm and Zurich-Warsaw routes; |
| --- | --- |

—

annul, in whole or in part, Commission Decision C(2016) 4964 final of 25 July 2016 in Case No M.3770 — Lufthansa/Swiss — Commission decision on Lufthansa’s request for a partial waiver of the commitments concerning the Zurich-Stockholm and Zurich-Warsaw routes;

| — | order the Commission to pay the costs. |
| --- | --- |

—

order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

| 1. | First plea in law, alleging that the decision must be annulled because it is vitiated by a manifest error of assessment and as a result breaches the principles of proportionality and protection of legitimate expectations by refusing to review and/or waive certain commitments imposed by Commission Decision of 4 July 2005 in Case No COMP/M.3770 — Lufthansa/Swiss. |
| --- | --- |

1.

First plea in law, alleging that the decision must be annulled because it is vitiated by a manifest error of assessment and as a result breaches the principles of proportionality and protection of legitimate expectations by refusing to review and/or waive certain commitments imposed by Commission Decision of 4 July 2005 in Case No COMP/M.3770 — Lufthansa/Swiss.

| 2. | Second plea in law, alleging that the decision must be annulled because the Commission has breached the principle of good administration in failing to assess carefully and impartially all the elements of the case. |
| --- | --- |

2.

Second plea in law, alleging that the decision must be annulled because the Commission has breached the principle of good administration in failing to assess carefully and impartially all the elements of the case.

| 3. | Third plea in law, alleging that the decision must be annulled because the Commission has misused its powers in circumventing the administrative procedure under Regulation 1/2003. |
| --- | --- |

3.

Third plea in law, alleging that the decision must be annulled because the Commission has misused its powers in circumventing the administrative procedure under Regulation 1/2003.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/29 |
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12.12.2016

EN

Official Journal of the European Union

C 462/29

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Action brought on 7 October 2016 — Asolo v EUIPO — Red Bull (FLÜGEL)

(Case T-714/16)

(2016/C 462/37)

Language in which the application was lodged: English

Parties

Applicant: Asolo LTD (Limassol, Cyprus) (represented by: W. Pors, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Red Bull GmbH (Fuschl am See, Austria)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: EU word mark ‘FLÜGEL’ — EU trade mark No 637 686

Procedure before EUIPO: Proceedings for a declaration of invalidity

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 29 July 2016 in Case R 282/2015-5

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision; |
| --- | --- |

—

annul the contested decision;

| — | dismiss the application for a declaration of invalidity; |
| --- | --- |

—

dismiss the application for a declaration of invalidity;

| — | order EUIPO and Red Bull to pay the costs. |
| --- | --- |

—

order EUIPO and Red Bull to pay the costs.

Pleas in law

| — | Infringement of Article 54(2) of Regulation No 207/2009; |
| --- | --- |

—

Infringement of Article 54(2) of Regulation No 207/2009;

| — | Infringement of Article 53(1)(a) in conjunction with Article 8(1)(b) of Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 53(1)(a) in conjunction with Article 8(1)(b) of Regulation No 207/2009.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/29 |
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12.12.2016

EN

Official Journal of the European Union

C 462/29

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Action brought on 10 October 2016 — Pfizer and Pfizer Santé Familiale v Commission

(Case T-716/16)

(2016/C 462/38)

Language of the case: English

Parties

Applicants: Pfizer Ltd (Sandwich, United Kingdom), Pfizer Santé Familiale (Paris, France) (represented by: L. Catrain González, lawyer, and E. Wright, barrister-at-law)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | annul Commission Implementing Regulation (EU) 2016/1140 of 8 July 2016 concerning the classification of certain goods in the Combined Nomenclature (OJ 2016 L 189, p. 1); |
| --- | --- |

—

annul Commission Implementing Regulation (EU) 2016/1140 of 8 July 2016 concerning the classification of certain goods in the Combined Nomenclature (OJ 2016 L 189, p. 1);

| — | order the European Commission to pay the costs of the proceedings. |
| --- | --- |

—

order the European Commission to pay the costs of the proceedings.

Plea in law and main arguments

In support of the action, the applicant relies on one plea in law, alleging that the European Commission infringed the Combined Nomenclature by failing to follow the precise order prescribed by the General Rules of interpretation in Chapter A of Part I of the Combined Nomenclature for the classification of goods.

| — | The Commission committed an error of law by applying General Rule 3 in the classification of a good which is not prima facie classifiable under two or more headings of the Combined Nomenclature; and |
| --- | --- |

—

The Commission committed an error of law by applying General Rule 3 in the classification of a good which is not prima facie classifiable under two or more headings of the Combined Nomenclature; and

| — | the Commission committed a second error of law by applying General Rule 3(b) without applying General Rule 3(a), which gives priority to the classification under the more specific headings. |
| --- | --- |

—

the Commission committed a second error of law by applying General Rule 3(b) without applying General Rule 3(a), which gives priority to the classification under the more specific headings.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/30 |
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12.12.2016

EN

Official Journal of the European Union

C 462/30

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Action brought on 4 October 2016 — Mad Dogg Athletics v EUIPO — Aerospinning Master Franchising (SPINNING)

(Case T-718/16)

(2016/C 462/39)

Language in which the application was lodged: German

Parties

Applicant: Mad Dogg Athletics, Inc. (Venice, California, United States of America) (represented by: J. Steinberg, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Aerospinning Master Franchising Ltd. s. r. o. (Prague, Czech Republic)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: EU word mark ‘SPINNING’ — EU trade mark No 175 117

Procedure before EUIPO: Revocation proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 21 July 2016 in Case R 2375/2014-5

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision in so far as it revoked EU work mark No 000175117 ‘SPINNING’ for the goods ‘exercise equipment’ in Class 28 and the services ‘exercise training’ in Class 41; |
| --- | --- |

—

annul the contested decision in so far as it revoked EU work mark No 000175117 ‘SPINNING’ for the goods ‘exercise equipment’ in Class 28 and the services ‘exercise training’ in Class 41;

| — | order EUIPO to pay the costs. |
| --- | --- |

—

order EUIPO to pay the costs.

Pleas in law

| — | Infringement of Article 51(1)(b) of Regulation No 207/2009; |
| --- | --- |

—

Infringement of Article 51(1)(b) of Regulation No 207/2009;

| — | Infringement of Article 41(2)(a) of the Charter of Fundamental Rights of the European Union; |
| --- | --- |

—

Infringement of Article 41(2)(a) of the Charter of Fundamental Rights of the European Union;

| — | Infringement of Article 41(2)(c) of the Charter of Fundamental Rights of the European Union. |
| --- | --- |

—

Infringement of Article 41(2)(c) of the Charter of Fundamental Rights of the European Union.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/31 |
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12.12.2016

EN

Official Journal of the European Union

C 462/31

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Action brought on 12 October 2016 — Mapei v EUIPO — Steenfabrieken Vandersanden (zerø)

(Case T-722/16)

(2016/C 462/40)

Language in which the application was lodged: Italian

Parties

Applicant: Mapei SpA (Milan, Italy) (represented by: F. Caricato, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Steenfabrieken Vandersanden NV (Bilzen, Belgium)

Details of the proceedings before EUIPO

Party applying for the trade mark at issue: Applicant

Trade mark at issue: European Union figurative mark containing the word element ‘zerø’ — Application for registration No 13 031 612

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 21 July 2016 in Case R 2371/2015-1

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision and, consequently, register mark No 13 031 612 in respect of all the goods claimed, without prejudice to those goods already covered, or, in the alternative, refer the case back to EUIPO in order for it to reverse its own decision by granting registration of the mark in accordance with the findings of the Court; |
| --- | --- |

—

annul the contested decision and, consequently, register mark No 13 031 612 in respect of all the goods claimed, without prejudice to those goods already covered, or, in the alternative, refer the case back to EUIPO in order for it to reverse its own decision by granting registration of the mark in accordance with the findings of the Court;

| — | order the other party to pay the costs. |
| --- | --- |

—

order the other party to pay the costs.

Plea in law

| — | Infringement of Article 8 of Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 8 of Regulation No 207/2009.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/32 |
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12.12.2016

EN

Official Journal of the European Union

C 462/32

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Action brought on 12 October 2016 — Mapei v EUIPO — Steenfabrieken Vandersanden (RE-CONzerø)

(Case T-723/16)

(2016/C 462/41)

Language in which the application was lodged: Italian

Parties

Applicant: Mapei SpA (Milan, Italy) (represented by: F. Caricato, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Steenfabrieken Vandersanden NV (Bilzen, Belgium)

Details of the proceedings before EUIPO

Party applying for the trade mark at issue: Applicant

Trade mark at issue: European Union figurative mark containing the word elements ‘RE-CONzerø’ — Application for registration No 13 031 661

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 21 July 2016 in Case R 2374/2015-1

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision and, consequently, register mark No 13 031 661 in respect of all the goods claimed, without prejudice to those goods already covered, or, in the alternative, refer the case back to EUIPO in order for it to reverse its own decision by granting registration of the mark in accordance with the findings of the Court; |
| --- | --- |

—

annul the contested decision and, consequently, register mark No 13 031 661 in respect of all the goods claimed, without prejudice to those goods already covered, or, in the alternative, refer the case back to EUIPO in order for it to reverse its own decision by granting registration of the mark in accordance with the findings of the Court;

| — | order the other party to pay the costs. |
| --- | --- |

—

order the other party to pay the costs.

Plea in law

| — | Infringement of Article 8 of Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 8 of Regulation No 207/2009.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/32 |
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12.12.2016

EN

Official Journal of the European Union

C 462/32

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Action brought on 13 October 2016 — Palos Caravina v CdT

(Case T-725/16)

(2016/C 462/42)

Language of the case: French

Parties

Applicant: Maria José Palos Caravina (Luxembourg, Luxembourg) (represented by: A. Salerno and P. Singer, lawyers)

Defendant: Translation Centre for the Bodies of the European Union (CdT)

Form of order sought

The applicant claims that the Court should:

| — | annul the CdT Appointing Authority’s decision refusing to grant her application to have communicated to her the decision to appoint Ms [X] to the Spanish translation team announced in October 2015 and, in so far as is necessary, the CdT Appointing Authority’s decision of 5 July 2016 rejecting the complaint against that refusal; |
| --- | --- |

—

annul the CdT Appointing Authority’s decision refusing to grant her application to have communicated to her the decision to appoint Ms [X] to the Spanish translation team announced in October 2015 and, in so far as is necessary, the CdT Appointing Authority’s decision of 5 July 2016 rejecting the complaint against that refusal;

| — | order the defendant to pay all the costs of the proceedings. |
| --- | --- |

—

order the defendant to pay all the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea in law, alleging infringement of Article 25 of the Staff Regulations.

She considers that the announcement of a person’s ‘arrival’ in a service in no way fulfils the obligation to publish appointment decisions laid down in Article 25 and, in the absence of proper publication, each member of staff has the right to require that the appointment decision at issue be communicated. That right was, therefore, infringed in the present case by the Appointing Authority of the Translation Centre for the Bodies of the European Union (CdT) in adopting the contested decision, namely, the decision of 23 December 2015 refusing to communicate to the applicant the decision in question.

The applicant also submits that the act of relying on Regulation No 45/2001, relating to the protection of personal data, against that right, stemming from Article 25 of the Staff Regulations, is ineffective, because even if an appointment decision fell within the scope of the data protected by that regulation, Article 25 would have to be considered a lex specialis, conferring a right of access on third parties.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/33 |
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12.12.2016

EN

Official Journal of the European Union

C 462/33

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Action brought on 13 October 2016 — VFP v Commission

(Case T-726/16)

(2016/C 462/43)

Language of the case: English

Parties

Applicant: Vlaamse Federatie van Persverkopers VZW (VFP) (Antwerp, Belgium) (represented by: P. de Bandt, J. Dewispelaere and J. Probst, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | declare the application admissible; |
| --- | --- |

—

declare the application admissible;

| — | annul the decision of the European Commission of 3 June 2016, State Aid SA.42366 (2016/N) — Belgium — State compensations to bpost for the delivery of public services over 2016-2020 (1); |
| --- | --- |

—

annul the decision of the European Commission of 3 June 2016, State Aid SA.42366 (2016/N) — Belgium — State compensations to bpost for the delivery of public services over 2016-2020 (1);

| — | refer the case back to the Commission for further investigation and a new decision; |
| --- | --- |

—

refer the case back to the Commission for further investigation and a new decision;

| — | order the Commission to pay the applicant’s costs; and |
| --- | --- |

—

order the Commission to pay the applicant’s costs; and

| — | take such other or further actions as justice may require. |
| --- | --- |

—

take such other or further actions as justice may require.

Plea in law and main arguments

In support of the action, the applicant relies on one single plea in law alleging that the European Commission has violated its procedural rights by adopting the contested decision and not opening the formal procedure provided for in Article 108(2) TFEU.

In this single plea it is explained that, in so far as the Commission encountered serious difficulties as regards the possible compatibility of the compensation for the press distribution Service of General Economic Interest (‘SGEI’) with the internal market, it was under the legal obligation to adopt a decision initiating the formal investigation procedure. This single plea is divided in four limbs. In particular, it is argued that the existence of the serious difficulties results from a body of consistent evidence concerning (i) the length of the preliminary examination and the special circumstances under which the aid was granted (first limb), (ii) the fact that the Commission’s analysis of the qualification of the distribution of recognised newspapers and periodicals as an SGEI is insufficient (second limb), (iii) the fact that the Commission’s analysis of the beneficiaries of the press distribution SGEI is incomplete (third limb) and (iv) the fact that the Commission’s analysis of the distortion of competition and the development of trade is incomplete and insufficient (fourth limb).

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(1)  OJ 2016, C 341, p. 5.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/34 |
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12.12.2016

EN

Official Journal of the European Union

C 462/34

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Action brought on 10 October 2016 — Repower v EUIPO — repowermap (REPOWER)

(Case T-727/16)

(2016/C 462/44)

Language in which the application was lodged: German

Parties

Applicant: Repower AG (Brusio, Switzerland) (represented by: R. Kunz-Hallstein and H. Kunz-Hallstein, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: repowermap.org (Bern, Switzerland)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: International registration of the word mark ‘REPOWER’ designating the European Union — International registration No 1 020 351 designating the European Union

Procedure before EUIPO: Revocation proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 3 August 2016 in Case R 2311/2014-5 (REV)

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision; |
| --- | --- |

—

annul the contested decision;

| — | order EUIPO to pay the costs. |
| --- | --- |

—

order EUIPO to pay the costs.

Pleas in law

| — | Infringement of Article 80 of Regulation No 207/2009; |
| --- | --- |

—

Infringement of Article 80 of Regulation No 207/2009;

| — | Infringement of Article 75 of Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 75 of Regulation No 207/2009.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/35 |
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12.12.2016

EN

Official Journal of the European Union

C 462/35

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Action brought on 13 October 2016 — Espírito Santo Financial Group v ECB

(Case T-730/16)

(2016/C 462/45)

Language of the case: English

Parties

Applicant: Espírito Santo Financial Group SA (Luxembourg, Luxembourg) (represented by: R. Oliveira and S. Estima Martins, lawyers)

Defendant: European Central Bank (ECB)

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of 31 August 2016 of the European Central Bank (ECB) adopted pursuant to Decision ECB/2004/3 not to provide full access to the ECB decision of 1 August 2014 which suspended Banco Espírito Santo S.A.’s Eurosystem monetary policy counterparty status and obliged it fully to repay its debt to the Eurosystem and refusing full access to related documents or decisions of ECB bodies; |
| --- | --- |

—

annul the decision of 31 August 2016 of the European Central Bank (ECB) adopted pursuant to Decision ECB/2004/3 not to provide full access to the ECB decision of 1 August 2014 which suspended Banco Espírito Santo S.A.’s Eurosystem monetary policy counterparty status and obliged it fully to repay its debt to the Eurosystem and refusing full access to related documents or decisions of ECB bodies;

| — | order the defendant to bear the costs. |
| --- | --- |

—

order the defendant to bear the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law.

| 1. | First plea in law, alleging that the contested decision refusing access to the requested information included in Governing Council decisions should be annulled on the grounds that it breached its duty to state reasons. |
| --- | --- |

1.

First plea in law, alleging that the contested decision refusing access to the requested information included in Governing Council decisions should be annulled on the grounds that it breached its duty to state reasons.

| 2. | Second plea in law, alleging that the contested decision refusing access to the requested information included in Governing Council decisions should be annulled on the grounds that it misinterpreted and thus breached the first, second and seventh indents of Article 4(1)(a) of Decision ECB/2004/3. |
| --- | --- |

2.

Second plea in law, alleging that the contested decision refusing access to the requested information included in Governing Council decisions should be annulled on the grounds that it misinterpreted and thus breached the first, second and seventh indents of Article 4(1)(a) of Decision ECB/2004/3.

| 3. | Third plea in law, alleging that the contested decision refusing access to additional information in the Executive Board’s proposals should be annulled on the grounds that it breached its duty to state reasons. |
| --- | --- |

3.

Third plea in law, alleging that the contested decision refusing access to additional information in the Executive Board’s proposals should be annulled on the grounds that it breached its duty to state reasons.

| 4. | Fourth plea in law, alleging that the contested decision refusing access to additional information in the Executive Board’s proposals should be annulled on the grounds that it misinterpreted and thus breached the second and seventh indents of Article 4(1)(a) of Decision ECB/2004/3. |
| --- | --- |

4.

Fourth plea in law, alleging that the contested decision refusing access to additional information in the Executive Board’s proposals should be annulled on the grounds that it misinterpreted and thus breached the second and seventh indents of Article 4(1)(a) of Decision ECB/2004/3.

| 5. | Fifth plea in law, alleging that the contested decision refusing access to additional information in the Executive Board’s proposals should be annulled on the grounds that it misinterpreted and thus breached the first indent of Article 4(2) of Decision ECB/2004/3. |
| --- | --- |

5.

Fifth plea in law, alleging that the contested decision refusing access to additional information in the Executive Board’s proposals should be annulled on the grounds that it misinterpreted and thus breached the first indent of Article 4(2) of Decision ECB/2004/3.

| 6. | Sixth plea in law, alleging that the contested decision refusing access to additional information in the Executive Board’s proposals should be annulled on the grounds that it misinterpreted and thus breached Article 4(3) of Decision ECB/2004/3. |
| --- | --- |

6.

Sixth plea in law, alleging that the contested decision refusing access to additional information in the Executive Board’s proposals should be annulled on the grounds that it misinterpreted and thus breached Article 4(3) of Decision ECB/2004/3.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/36 |
| --- | --- | --- | --- |

12.12.2016

EN

Official Journal of the European Union

C 462/36

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Action brought on 10 October 2016 — Perifereia Stereas Elladas v Commission

(Case T-731/16)

(2016/C 462/46)

Language of the case: Greek

Parties

Applicant: Perifereia Stereas Elladas (Lamia, Greece) (represented by: K. Bakas, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | Annul and declare void the contested decision of 10 August 2016 bearing the number 4310049 (Ares(2016) 4310049 — 10/08/2016) of the European Commission’s DG Employment, Social Affairs and Inclusion, signed by the Director for Social Affairs, whereby the Commission rejected the proposal dated 3 December 2015 seeking funding which the consortium of which the applicant is the leading member submitted with respect to the European programme for Employment and Social Innovation EASI (PROGRESS AXIS) 2014-2020 for ‘social policy innovations supporting reforms in social services’ on grant application form VP/2-15/011· and; |
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Annul and declare void the contested decision of 10 August 2016 bearing the number 4310049 (Ares(2016) 4310049 — 10/08/2016) of the European Commission’s DG Employment, Social Affairs and Inclusion, signed by the Director for Social Affairs, whereby the Commission rejected the proposal dated 3 December 2015 seeking funding which the consortium of which the applicant is the leading member submitted with respect to the European programme for Employment and Social Innovation EASI (PROGRESS AXIS) 2014-2020 for ‘social policy innovations supporting reforms in social services’ on grant application form VP/2-15/011· and;

| — | order the European Commission to pay the applicant’s costs and the fees of the lawyer representing it. |
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order the European Commission to pay the applicant’s costs and the fees of the lawyer representing it.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

| 1. | The first plea in law is based on the claim that European Commission erred in its assessment of the content of the applicant’s proposal. |
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1.

The first plea in law is based on the claim that European Commission erred in its assessment of the content of the applicant’s proposal.

| 2. | The second plea in law is based on an infringement of the principle of proportionality. The applicant maintains that, if it is argued that the rejection was made for formal reasons, the contested act must be annulled as being contrary to the Community principles of proportionality and good administration. |
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2.

The second plea in law is based on an infringement of the principle of proportionality. The applicant maintains that, if it is argued that the rejection was made for formal reasons, the contested act must be annulled as being contrary to the Community principles of proportionality and good administration.

| 3. | The first plea in law is based on an infringement of the principle of equal treatment due to the fact that, while, where there were technical problems, an extension of time was given to any applicants who had not submitted a proposal, on the other hand no corresponding right was given to applicants who had submitted their proposals to provide corrections or supplementary information or clarification. |
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3.

The first plea in law is based on an infringement of the principle of equal treatment due to the fact that, while, where there were technical problems, an extension of time was given to any applicants who had not submitted a proposal, on the other hand no corresponding right was given to applicants who had submitted their proposals to provide corrections or supplementary information or clarification.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/36 |
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12.12.2016

EN

Official Journal of the European Union

C 462/36

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Action brought on 19 October 2016 — Argyraki v Commission

(Case T-734/16)

(2016/C 462/47)

Language of the case: French

Parties

Applicant: Vassilia Argyraki (Brussels, Belgium) (represented by: S. Pappas, avocat)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Office for the administration and payment of individual entitlements (PMO) of 29 January 2016; |
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annul the decision of the Office for the administration and payment of individual entitlements (PMO) of 29 January 2016;

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant invokes two pleas.

| 1. | First plea, relating to the second period during which the applicant acted as a member of the auxiliary staff, according to which the contested decision is based on a non-existent legal basis, since there is no condition relating to a change of institution in Commission Conclusion No 229/04 of 7 April 2004, Article 4(1) of Annex VIII to the Staff Regulations of Officials of the European Union, or in the case-law. Consequently, that part of the contested measure is unlawful and should be annulled. |
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1.

First plea, relating to the second period during which the applicant acted as a member of the auxiliary staff, according to which the contested decision is based on a non-existent legal basis, since there is no condition relating to a change of institution in Commission Conclusion No 229/04 of 7 April 2004, Article 4(1) of Annex VIII to the Staff Regulations of Officials of the European Union, or in the case-law. Consequently, that part of the contested measure is unlawful and should be annulled.

| 2. | Second plea, relating to the first period during which the applicant acted as a member of the auxiliary staff, according to which the condition applied by the contested decision, namely the non-interruption of the service for more than one year, and provided for by Conclusion No 229/04 infringes Article 4(1) of Annex VIII to the Staff Regulations, as interpreted by the case-law. Consequently, that part of the contested measure is unlawful and should be annulled. |
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2.

Second plea, relating to the first period during which the applicant acted as a member of the auxiliary staff, according to which the condition applied by the contested decision, namely the non-interruption of the service for more than one year, and provided for by Conclusion No 229/04 infringes Article 4(1) of Annex VIII to the Staff Regulations, as interpreted by the case-law. Consequently, that part of the contested measure is unlawful and should be annulled.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/37 |
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12.12.2016

EN

Official Journal of the European Union

C 462/37

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Action brought on 25 October 2016 — Akant Monika i Zbigniew Harasym v EUIPO — Hunter Douglas Holding (COSIMO)

(Case T-739/16)

(2016/C 462/48)

Language in which the application was lodged: Polish

Parties

Applicant: Akant Monika i Zbigniew Harasym sp. j. (Koszalin, Poland) (represented by: M. Krekora, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Hunter Douglas Holding GmbH & Co.KG (Düsseldorf, Germany)

Details of the proceedings before EUIPO

Applicant: Applicant

Trade mark at issue: European Union word mark ‘COSIMO’ — Application for registration No 12 130 324

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 22 August 2016 in Case R 2364/2015-2

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision; |
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annul the contested decision;

| — | dismiss the appeal brought by the other party to the proceedings before EUIPO; |
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dismiss the appeal brought by the other party to the proceedings before EUIPO;

| — | order EUIPO and the other party to pay the costs of the present proceedings and order the other party to pay the costs of the proceedings before EUIPO. |
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order EUIPO and the other party to pay the costs of the present proceedings and order the other party to pay the costs of the proceedings before EUIPO.

Pleas in law

| — | Infringement of Articles 8(1)(b) and 42(2) of Regulation No 207/2009. |
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Infringement of Articles 8(1)(b) and 42(2) of Regulation No 207/2009.

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| 12.12.2016 | EN | Official Journal of the European Union | C 462/38 |
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12.12.2016

EN

Official Journal of the European Union

C 462/38

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Action brought on 21 October 2016 — Changmao Biochemical Engineering v Commission

(Case T-741/16)

(2016/C 462/49)

Language of the case: English

Parties

Applicant: Changmao Biochemical Engineering Co. Ltd (Changzhou, China) (represented by: R. Antonini, E. Monard and B. Maniatis, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the Commission Implementing Regulation (EU) 2016/1247 of 28 July 2016 Imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of aspartame originating in the People's Republic of China; and |
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annul the Commission Implementing Regulation (EU) 2016/1247 of 28 July 2016 Imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of aspartame originating in the People's Republic of China; and

| — | order the Commission to bear the costs of the proceedings. |
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order the Commission to bear the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

| 1. | First plea in law, alleging that by refusing to grant economy market treatment to the applicant, the European Commission violated Article 2(7)(b) and (c) of Regulation (EU) 2016/1036 (1) and the principle of legitimate expectations, and imposed an unreasonable burden of proof in violation of the principle of good administration. |
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1.

First plea in law, alleging that by refusing to grant economy market treatment to the applicant, the European Commission violated Article 2(7)(b) and (c) of Regulation (EU) 2016/1036 (1) and the principle of legitimate expectations, and imposed an unreasonable burden of proof in violation of the principle of good administration.

| 2. | Second plea in law, alleging that by relying on the Union producer’s prices and costs to determine the normal value, the European Commission infringed Article 2(7)(a) of Regulation (EU) 2016/1036. |
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2.

Second plea in law, alleging that by relying on the Union producer’s prices and costs to determine the normal value, the European Commission infringed Article 2(7)(a) of Regulation (EU) 2016/1036.

| 3. | Third plea in law, alleging that the European Commission violated Articles 2(10), 3(2)(a), 3(3) and 9(4) of Regulation (EU) 2016/1036 and the principle of good administration, in its rejection of the adjustments. |
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3.

Third plea in law, alleging that the European Commission violated Articles 2(10), 3(2)(a), 3(3) and 9(4) of Regulation (EU) 2016/1036 and the principle of good administration, in its rejection of the adjustments.

| 4. | Fourth plea in law, alleging that by means of its finding that the dumped imports caused material injury to the Union industry, the European Commission violated Article 3(2) and 3(6) (and, in subsidiary order, Article 6(7)) of Regulation (EU) 2016/1036. |
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4.

Fourth plea in law, alleging that by means of its finding that the dumped imports caused material injury to the Union industry, the European Commission violated Article 3(2) and 3(6) (and, in subsidiary order, Article 6(7)) of Regulation (EU) 2016/1036.

| 5. | Fifth plea in law, alleging that by relying on unreliable data, the European Commission violated Articles 2(7)(a), 3(2), 3(3) and 3(5) of Regulation (EU) 2016/1036. |
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5.

Fifth plea in law, alleging that by relying on unreliable data, the European Commission violated Articles 2(7)(a), 3(2), 3(3) and 3(5) of Regulation (EU) 2016/1036.

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(1)  Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ L 176, p. 21).

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