# Official Journal C 352/1 Oc

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 352 |
| | |
| English edition | Information and Notices | Volume 611 October 2018 |

ISSN 1977-091X

Official Journal

of the European Union

C 352

English edition

Information and Notices

Volume 611 October 2018

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| Contents | page |
| --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2018/C 352/01 | Last publications of the Court of Justice of the European Union in the Official Journal of the European Union | 1 |

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2018/C 352/01

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 |
| 2018/C 352/02 | Joined Cases C-96/16 and C-94/17: Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Juzgado de Primera Instancia No 38 de Barcelona, Tribunal Supremo — Spain) — Banco Santander SA v Mahamadou Demba, Mercedes Godoy Bonet (C-96/16), Rafael Ramón Escobedo Cortés v Banco de Sabadell SA (C-94/17) (Reference for a preliminary ruling — Directive 93/13/EEC — Unfair terms — Scope — Assignment of debts — Loan agreement concluded with a consumer — Criteria for assessing the unfairness of a contractual term setting the default interest rate — Consequences of that unfairness) | 2 |
| 2018/C 352/03 | Case C-472/16: Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León — Spain) — Jorge Luis Colino Sigüenza v Ayuntamiento de Valladolid and Others (Reference for a preliminary ruling — Directive 2001/23/EC — Scope — Article 1(1) — Transfers of undertakings — Safeguarding of employees’ rights — Service contract for the management of a municipal Academy of Music — Cessation of the activity of the first contractor before the end of the current school year and designation of a new contractor at the beginning of the following school year — Article 4(1) — Prohibition of dismissal by reason of transfer — Exception — Dismissal for economic, technical or organisational reasons entailing changes in the workforce — Charter of Fundamental Rights of the European Union — Article 47) | 3 |
| 2018/C 352/04 | Case C-561/16: Judgment of the Court (Second Chamber) of 7 August 2018 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Saras Energía SA v Administración del Estado (Reference for a preliminary ruling — Directive 2012/27/EU — Article 7(1), (4) and (9) — Article 20(4) and (6) — Promotion of energy efficiency — Energy efficiency obligation scheme — Other policy measures — Energy Efficiency National Fund — Establishment of such a fund as the main measure implementing energy efficiency obligations — Contribution obligation — Designation of the obligated parties — Energy distributors and/or retail energy sales companies) | 4 |
| 2018/C 352/05 | Case C-16/17: Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) — Portugal) — TGE Gas Engineering GmbH — Sucursal em Portugal v Autoridade Tributária e Aduaneira (Reference for a preliminary ruling — Value added tax (VAT) — Deduction of input tax — Origin and scope of the right to deduct) | 4 |
| 2018/C 352/06 | Case C-52/17: Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Bundesverwaltungsgericht — Austria) — VTB Bank (Austria) AG v Finanzmarktaufsichtsbehörde (Reference for a preliminary ruling — Approximation of laws — Directive 2013/36/EU — Articles 64, 65 and 67 — Regulation (EU) No 575/2013 — Article 395(1) and (5) — Supervision of credit institutions — Supervisory powers and powers to impose penalties — Large exposure limits — Legislation of a Member State under which interest is levied where those limits are exceeded — Regulation (EU) No 468/2014 — Article 48 — Attribution of areas of competence between the European Central Bank (ECB) and national authorities — Formally initiated supervisory procedure) | 5 |
| 2018/C 352/07 | Case C-59/17: Judgment of the Court (Fourth Chamber) of 7 August 2018 (request for a preliminary ruling from the Conseil d’État — France) — Château du Grand Bois SCI v Établissement national des produits de l’agriculture et de la mer (FranceAgriMer) (Reference for a preliminary ruling — Agriculture — Market in wine — Regulation (EC) No 555/2008 — Support for the restructuring and conversion of vineyards — Unannounced on-the-spot checks — Powers of control officials — Whether officials may enter agricultural land without having obtained the vine grower’s permission) | 6 |
| 2018/C 352/08 | Joined Cases C-61/17, C-62/17 and C-72/17: Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Landesarbeitsgericht Berlin-Brandenburg — Germany) — Miriam Bichat (C-61/17), Daniela Chlubna (C-62/17), Isabelle Walkner (C-72/17) v Aviation Passage Service Berlin GmbH & Co. KG (Reference for a preliminary ruling — Social policy — Collective redundancies — Directive 98/59/EC — First subparagraph of Article 2(4) — Definition of undertaking controlling the employer — Procedures for consultation of workers — Burden of proof) | 6 |
| 2018/C 352/09 | Case C-115/17: Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Cour de cassation — France) — Administration des douanes et des droits indirects, Établissement national des produits de l’agriculture et de la mer (FranceAgriMer) v Hubert Clergeau and Others (Reference for a preliminary ruling — Regulation (EEC) No 1964/82 — False declarations or deceitful practices in order to secure special export refunds on certain cuts of boned meat of bovine animals — Amendment to Regulation No 1964/82 extending the entitlement to special export refunds — Principle of the retroactive application of the more lenient criminal law — Third sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union) | 7 |
| 2018/C 352/10 | Case C-120/17: Judgment of the Court (Eighth Chamber) of 7 August 2018 (request for a preliminary ruling from the Satversmes tiesa — Latvia) — Administratīvā rajona tiesa v Ministru kabinets (Reference for a preliminary ruling — Agriculture — Support for rural development — Regulation (EC) No 1257/1999 — Articles 10 to 12 — Early retirement support — National legislation providing for the transfer by inheritance of early retirement support — Legislation approved by the European Commission — Subsequent change of position — Protection of legitimate expectations) | 8 |
| 2018/C 352/11 | Case C-122/17: Judgment of the Court (Grand Chamber) of 7 August 2018 (request for a preliminary ruling from the Court of Appeal — Ireland) — David Smith v Patrick Meade, Philip Meade, FBD Insurance plc, Ireland, Attorney General (Reference for a preliminary ruling — Approximation of laws — Insurance against civil liability in respect of the use of motor vehicles — Third Directive 90/232/EEC — Article 1 — Liability for personal injury caused to all passengers other than the driver — Compulsory insurance — Direct effect of directives — Obligation to disapply national legislation contrary to a directive — Non-application of a contractual clause contrary to a directive) | 8 |
| 2018/C 352/12 | Case C-123/17: Judgment of the Court (First Chamber) of 7 August 2018 (request for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Nefiye Yön v Landeshauptstadt Stuttgart (Reference for a preliminary ruling — EEC-Turkey Association — Decision No 2/76 — Article 7 — Standstill clause — Right of residence of family members of a Turkish worker — Visa requirement for admission to the territory of a Member State) | 9 |
| 2018/C 352/13 | Case C-161/17: Judgment of the Court (Second Chamber) of 7 August 2018 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Land Nordrhein-Westfalen v Dirk Renckhoff (Reference for a preliminary ruling — Copyright and related rights — Directive 2001/29/EC — Information society — Harmonisation of certain aspects of copyright and related rights — Article 3(1) — Communication to the public — Concept — Publication online, without the consent of the rightholder, of a photograph previously published on another website without any restrictions and with the consent of the rightholder — New public) | 10 |
| 2018/C 352/14 | Case C-300/17: Judgment of the Court (Third Chamber) of 7 August 2018 (request for a preliminary ruling from the Kúria — Hungary) — Hochtief AG v Budapest Főváros Önkormányzata (Reference for a preliminary ruling — Public procurement — Review procedures — Directive 89/665/EC — Action for damages — Article 2(6) — National rules making the admissibility of any action for damages subject to a prior and definitive determination of the illegality of the decision of the contracting authority giving rise to the damage alleged — Actions for annulment — Prior action before an arbitration committee — Judicial review of arbitral decisions — National rules excluding pleas not raised before the arbitration committee — Charter of Fundamental Rights of the European Union — Article 47 — Right to effective judicial protection — Principles of effectiveness and equivalence) | 11 |
| 2018/C 352/15 | Case C-329/17: Judgment of the Court (Eighth Chamber) of 7 August 2018 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Gerhard Prenninger and Others v Oberösterreichische Landesregierung (Reference for a preliminary ruling — Environment — Directive 2011/92/EU — Assessment of the effects of certain projects on the environment — Annex II — Point 1(d) — Concept of deforestation for the purposes of conversion to another type of land use — Clearance of a path in a forest in connection with the construction and operation of an overhead electrical power line) | 12 |
| 2018/C 352/16 | Case C-435/17: Judgment of the Court (Third Chamber) of 7 August 2018 (request for a preliminary ruling from the Tartu Halduskohus — Estonia) — Argo Kalda Mardi talu v Põllumajanduse Registrite ja Informatsiooni Amet (PRIA) (Reference for a preliminary ruling — Common agricultural policy — Direct payments — Regulation (EU) No 1306/2013 — Articles 93 and 94 — Annex II — Cross-compliance — Agricultural and environmental conditions — Minimum requirements — Implementation by a Member State — Obligation to conserve burial grounds — Scope) | 12 |
| 2018/C 352/17 | Case C-475/17: Judgment of the Court (Seventh Chamber) of 7 August 2018 (request for a preliminary ruling from the Riigikohus — Estonia) — Viking Motors AS and Others v Tallinna linn, Maksu- ja Tolliamet (Reference for a preliminary ruling — Taxation — Common system of value added tax (VAT) — Directive 2006/112/EC — Article 401 — Domestic taxes which can be characterised as turnover taxes — Prohibition — Concept of turnover tax — Local sales tax — Essential characteristics of VAT — None) | 13 |
| 2018/C 352/18 | Case C-485/17: Judgment of the Court (Eighth Chamber) of 7 August 2018 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Verbraucherzentrale Berlin eV v Unimatic Vertriebs GmbH (Reference for a preliminary ruling — Consumer protection — Directive 2011/83/EU — Article 2(9) — Concept of business premises — Criteria — Sales contract concluded on a stand run by a trader at a trade fair) | 14 |
| 2018/C 352/19 | Case C-521/17: Judgment of the Court (Third Chamber) of 7 August 2018 (request for a preliminary ruling from the Tallinna Ringkonnakohus — Estonia) — Coöperatieve Vereniging SNB-REACT U.A. v Deepak Mehta (Reference for a preliminary ruling — Intellectual and industrial property — Directive 2004/48/EC — Article 4 — Legal standing of a body for the collective representation of trade mark proprietors — Directive 2000/31/EC — Articles 12 to 14 — Liability of a provider of IP address rental and registration services allowing the anonymous use of domain names and websites) | 15 |
| 2018/C 352/20 | Case C-396/18: Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 15 June 2018 — Gennaro Cafaro v DQ | 15 |
| 2018/C 352/21 | Case C-417/18: Request for a preliminary ruling from the Vilniaus apygardos administracinis teismas (Lithuania) lodged on 26 June 2018 — AW, BV, CU, DT v Republic of Lithuania, represented by Lietuvos Respublikos ryšių reguliavimo tarnyba, Bendrasis pagalbos centras and Lietuvos Respublikos vidaus reikalų ministerija | 16 |
| 2018/C 352/22 | Case C-430/18: Action brought on 29 June 2018 — European Commission v Kingdom of Spain | 17 |
| 2018/C 352/23 | Case C-433/18: Request for a preliminary ruling from the Korkein oikeus (Finland) lodged on 2 July 2018 — ML v OÜ Aktiva Finants | 18 |
| 2018/C 352/24 | Case C-435/18: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 29 June 2018 — Otis Gesellschaft m.b.H. and Others v Land Oberösterreich and Others | 19 |
| 2018/C 352/25 | Case C-454/18: Request for a preliminary ruling from the Förvaltningsrätten i Linköping (Sweden) lodged on 12 July 2018 — Baltic Cable AB v Energimarknadsinspektionen | 19 |
| 2018/C 352/26 | Case C-467/18: Request for a preliminary ruling from the Rayonen Sad Lukovit (Bulgaria) lodged on 17 July 2018 — criminal proceedings against EP | 20 |
| 2018/C 352/27 | Case C-476/18: Request for a preliminary ruling from the Pesti Központi Kerületi Bíróság (Hungary) lodged on 23 July 2018 — PannonHitel Pénzügyi Zrt. v WizzAir Hungary Légiközlekedési Kft. | 22 |
| 2018/C 352/28 | Case C-482/18: Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 24 July 2018 — Google Ireland Limited v Nemzeti Adó- és Vámhivatal Kiemelt Adó- és Vámigazgatósága | 23 |
| 2018/C 352/29 | Case C-484/18: Request for a preliminary ruling from the Cour de cassation (France) lodged on 20 July 2018 — Société de perception et de distribution des droits des artistes-interprètes de la musique and de la danse (SPEDIDAM), PG, GF v Institut national de l’audiovisuel | 24 |
| 2018/C 352/30 | Case C-485/18: Request for a preliminary ruling from the Conseil d’État (France) lodged on 24 July 2018 — Groupe Lactalis v Premier ministre, Ministre de l’Agriculture et de l’Alimentation, Garde des Sceaux, Ministre de la Justice, Ministre de l’Économie et des Finances | 25 |
| 2018/C 352/31 | Case C-486/18: Request for a preliminary ruling from the Cour de cassation (France) lodged on 23 July 2018 — RE v Praxair MRC | 26 |
| 2018/C 352/32 | Case C-495/18: Request for a preliminary ruling from the Najvyšší súd Slovenskej republiky (the Slovak Republic) lodged on 30 July 2018 — YX | 26 |
| | General Court |
| 2018/C 352/33 | Case T-680/13: Judgment of the General Court of 13 July 2018 — K. Chrysostomides & Co. and Others v Council and Others (Non-contractual liability — Economic and monetary policy — Stability support programme for Cyprus — Decision of the Governing Council of the ECB relating to emergency liquidity assistance following a request from the Central Bank of Cyprus — Euro Group Statements of 25 March, 12 April, 13 May and 13 September 2013 concerning Cyprus — Decision 2013/236/EU — Memorandum of Understanding of 26 April 2013 on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism — Jurisdiction of the General Court — Admissibility — Formal requirements — Exhaustion of national rights of action — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Right to property — Legitimate expectations — Equal treatment) | 28 |
| 2018/C 352/34 | Case T-786/14: Judgment of the General Court of 13 July 2018 — Bourdouvali and Others v Council and Others (Non-contractual liability — Economic and monetary policy — Stability support programme for Cyprus — Decision of the Governing Council of the ECB relating to emergency liquidity assistance following a request from the Central Bank of Cyprus — Euro Group Statements of 25 March, 12 April, 13 May and 13 September 2013 concerning Cyprus — Decision 2013/236/EU — Memorandum of Understanding of 26 April 2013 on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism — Jurisdiction of the General Court — Admissibility — Formal requirements — Exhaustion of national rights of action — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Right to property — Legitimate expectations — Equal treatment) | 29 |
| 2018/C 352/35 | Case T-733/16: Judgment of the General Court of 13 July 2018 — Banque postale v ECB (Economic and monetary policy — Prudential supervision of credit institutions — Article 4(1)(d) and (3) of Regulation (EU) No 1024/2013 — Calculation of the leverage ratio — Refusal of the ECB to grant authorisation to the applicant to exclude exposures meeting certain conditions from the calculation of the leverage ratio — Article 429(14) of Regulation (EU) No 575/2013 — Discretion of the ECB — Errors of law — Manifest error of assessment) | 30 |
| 2018/C 352/36 | Case T-751/16: Judgment of the General Court of 13 July 2018 — BNP Paribas v ECB (Economic and monetary policy — Prudential supervision of credit institutions — Article 4(1)(d) and (3) of Regulation (EU) No 1024/2013 — Calculation of the leverage ratio — Refusal of the ECB to grant authorisation to the applicant to exclude exposures meeting certain conditions from the calculation of the leverage ratio — Article 429(14) of Regulation (EU) No 575/2013 — Discretion of the ECB — Errors of law — Manifest error of assessment) | 31 |
| 2018/C 352/37 | Case T-768/16: Judgment of the General Court of 13 July 2018 — BNP Paribas v ECB (Economic and monetary policy — Prudential supervision of credit institutions — Article 4(1)(d) and (3) of Regulation (EU) No 1024/2013 — Calculation of the leverage ratio — Refusal of the ECB to grant authorisation to the applicant to exclude exposures meeting certain conditions from the calculation of the leverage ratio — Article 429(14) of Regulation (EU) No 575/2013 — Discretion of the ECB — Errors of law — Manifest error of assessment) | 32 |
| 2018/C 352/38 | Case T-825/16: Judgment of the General Court of 13 July 2018 — Cyprus v EUIPO — Papouis Dairies (Pallas Halloumi) (EU trade mark — Opposition proceedings — Application for EU figurative mark Pallas Halloumi — Prior United Kingdom word certification mark HALLOUMI — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)) | 32 |
| 2018/C 352/39 | Case T-847/16: Judgment of the General Court of 13 July 2018 — Cyprus v EUIPO — POA (COWBOYS HALLOUMI) (EU trade mark — Opposition proceedings — Application for EU figurative mark COWBOYS HALLOUMI — Prior United Kingdom word certification mark HALLOUMI — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)) | 33 |
| 2018/C 352/40 | Case T-797/17: Judgment of the General Court of 13 July 2018 — Star Television Productions v EUIPO — Marc Dorcel (STAR) (EU trade mark — Revocation proceedings — EU figurative mark STAR — No genuine use of the mark — Article 51(1)(a) of Regulation (EC) No 207/2009 (now Article 58(1)(a) of Regulation (EU) 2017/1001)) | 34 |
| 2018/C 352/41 | Case T-388/18: Action brought on 27 June 2018 — WV v EEAS | 34 |
| 2018/C 352/42 | Case T-391/18: Action brought on 27 June 2018 — Riesco García v Parliament | 36 |
| 2018/C 352/43 | Case T-396/18: Action brought on 29 June 2018 — ITSA v Commission | 36 |
| 2018/C 352/44 | Case T-436/18: Action brought on 13 July 2018 — Prigent v Commission | 37 |
| 2018/C 352/45 | Case T-453/18: Action brought on 24 July 2018 — Biasotto v EUIPO — OOFOS (OOF) | 38 |
| 2018/C 352/46 | Case T-454/18: Action brought on 24 July 2018 — Biasotto v EUIPO — OOFOS (OO) | 39 |
| 2018/C 352/47 | Case T-463/18: Action brought on 30 July 2018 — Novartis v EUIPO (SMARTSURFACE) | 40 |
| 2018/C 352/48 | Case T-473/18: Action brought on 27 July 2018 — Getsmarter Online v EUIPO (getsmarter) | 40 |
| 2018/C 352/49 | Case T-474/18: Action brought on 6 August 2018 — Veit v ECB | 41 |
| 2018/C 352/50 | Case T-481/18: Action brought on 1 August 2018 — Electroquímica Onubense v ECHA | 42 |
| 2018/C 352/51 | Case T-487/18: Action brought on 14 August 2018 — Stada Arzneimittel v EUIPO (ViruProtect) | 42 |
| 2018/C 352/52 | Case T-491/18: Action brought on 14 August 2018 — Vafo Praha v EUIPO — Rutzinger-Kurpas (Meatlove) | 43 |
| 2018/C 352/53 | Case T-492/18: Action brought on 15 August 2018 — Zhadanov v EUIPO (Scanner Pro) | 44 |
| 2018/C 352/54 | Case T-495/18: Action brought on 17 August 2018 — Dermatest v EUIPO (DERMATEST) | 44 |
| 2018/C 352/55 | Case T-496/18: Action brought on 17 August 2018 — OCU v SRB | 45 |
| 2018/C 352/56 | Case T-497/18: Action brought on 14 August 2018 — IAK — Forum International v EUIPO — Schwalb (IAK) | 46 |
| 2018/C 352/57 | Case T-498/18: Action brought on 20 August 2018 — ZPC Flis v EUIPO — Aldi Einkauf (Happy Moreno choco) | 47 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2018/C 352/02

Joined Cases C-96/16 and C-94/17: Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Juzgado de Primera Instancia No 38 de Barcelona, Tribunal Supremo — Spain) — Banco Santander SA v Mahamadou Demba, Mercedes Godoy Bonet (C-96/16), Rafael Ramón Escobedo Cortés v Banco de Sabadell SA (C-94/17) (Reference for a preliminary ruling — Directive 93/13/EEC — Unfair terms — Scope — Assignment of debts — Loan agreement concluded with a consumer — Criteria for assessing the unfairness of a contractual term setting the default interest rate — Consequences of that unfairness)

2

2018/C 352/03

Case C-472/16: Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León — Spain) — Jorge Luis Colino Sigüenza v Ayuntamiento de Valladolid and Others (Reference for a preliminary ruling — Directive 2001/23/EC — Scope — Article 1(1) — Transfers of undertakings — Safeguarding of employees’ rights — Service contract for the management of a municipal Academy of Music — Cessation of the activity of the first contractor before the end of the current school year and designation of a new contractor at the beginning of the following school year — Article 4(1) — Prohibition of dismissal by reason of transfer — Exception — Dismissal for economic, technical or organisational reasons entailing changes in the workforce — Charter of Fundamental Rights of the European Union — Article 47)

3

2018/C 352/04

Case C-561/16: Judgment of the Court (Second Chamber) of 7 August 2018 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Saras Energía SA v Administración del Estado (Reference for a preliminary ruling — Directive 2012/27/EU — Article 7(1), (4) and (9) — Article 20(4) and (6) — Promotion of energy efficiency — Energy efficiency obligation scheme — Other policy measures — Energy Efficiency National Fund — Establishment of such a fund as the main measure implementing energy efficiency obligations — Contribution obligation — Designation of the obligated parties — Energy distributors and/or retail energy sales companies)

4

2018/C 352/05

Case C-16/17: Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) — Portugal) — TGE Gas Engineering GmbH — Sucursal em Portugal v Autoridade Tributária e Aduaneira (Reference for a preliminary ruling — Value added tax (VAT) — Deduction of input tax — Origin and scope of the right to deduct)

4

2018/C 352/06

Case C-52/17: Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Bundesverwaltungsgericht — Austria) — VTB Bank (Austria) AG v Finanzmarktaufsichtsbehörde (Reference for a preliminary ruling — Approximation of laws — Directive 2013/36/EU — Articles 64, 65 and 67 — Regulation (EU) No 575/2013 — Article 395(1) and (5) — Supervision of credit institutions — Supervisory powers and powers to impose penalties — Large exposure limits — Legislation of a Member State under which interest is levied where those limits are exceeded — Regulation (EU) No 468/2014 — Article 48 — Attribution of areas of competence between the European Central Bank (ECB) and national authorities — Formally initiated supervisory procedure)

5

2018/C 352/07

Case C-59/17: Judgment of the Court (Fourth Chamber) of 7 August 2018 (request for a preliminary ruling from the Conseil d’État — France) — Château du Grand Bois SCI v Établissement national des produits de l’agriculture et de la mer (FranceAgriMer) (Reference for a preliminary ruling — Agriculture — Market in wine — Regulation (EC) No 555/2008 — Support for the restructuring and conversion of vineyards — Unannounced on-the-spot checks — Powers of control officials — Whether officials may enter agricultural land without having obtained the vine grower’s permission)

6

2018/C 352/08

Joined Cases C-61/17, C-62/17 and C-72/17: Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Landesarbeitsgericht Berlin-Brandenburg — Germany) — Miriam Bichat (C-61/17), Daniela Chlubna (C-62/17), Isabelle Walkner (C-72/17) v Aviation Passage Service Berlin GmbH & Co. KG (Reference for a preliminary ruling — Social policy — Collective redundancies — Directive 98/59/EC — First subparagraph of Article 2(4) — Definition of undertaking controlling the employer — Procedures for consultation of workers — Burden of proof)

6

2018/C 352/09

Case C-115/17: Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Cour de cassation — France) — Administration des douanes et des droits indirects, Établissement national des produits de l’agriculture et de la mer (FranceAgriMer) v Hubert Clergeau and Others (Reference for a preliminary ruling — Regulation (EEC) No 1964/82 — False declarations or deceitful practices in order to secure special export refunds on certain cuts of boned meat of bovine animals — Amendment to Regulation No 1964/82 extending the entitlement to special export refunds — Principle of the retroactive application of the more lenient criminal law — Third sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union)

7

2018/C 352/10

Case C-120/17: Judgment of the Court (Eighth Chamber) of 7 August 2018 (request for a preliminary ruling from the Satversmes tiesa — Latvia) — Administratīvā rajona tiesa v Ministru kabinets (Reference for a preliminary ruling — Agriculture — Support for rural development — Regulation (EC) No 1257/1999 — Articles 10 to 12 — Early retirement support — National legislation providing for the transfer by inheritance of early retirement support — Legislation approved by the European Commission — Subsequent change of position — Protection of legitimate expectations)

8

2018/C 352/11

Case C-122/17: Judgment of the Court (Grand Chamber) of 7 August 2018 (request for a preliminary ruling from the Court of Appeal — Ireland) — David Smith v Patrick Meade, Philip Meade, FBD Insurance plc, Ireland, Attorney General (Reference for a preliminary ruling — Approximation of laws — Insurance against civil liability in respect of the use of motor vehicles — Third Directive 90/232/EEC — Article 1 — Liability for personal injury caused to all passengers other than the driver — Compulsory insurance — Direct effect of directives — Obligation to disapply national legislation contrary to a directive — Non-application of a contractual clause contrary to a directive)

8

2018/C 352/12

Case C-123/17: Judgment of the Court (First Chamber) of 7 August 2018 (request for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Nefiye Yön v Landeshauptstadt Stuttgart (Reference for a preliminary ruling — EEC-Turkey Association — Decision No 2/76 — Article 7 — Standstill clause — Right of residence of family members of a Turkish worker — Visa requirement for admission to the territory of a Member State)

9

2018/C 352/13

Case C-161/17: Judgment of the Court (Second Chamber) of 7 August 2018 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Land Nordrhein-Westfalen v Dirk Renckhoff (Reference for a preliminary ruling — Copyright and related rights — Directive 2001/29/EC — Information society — Harmonisation of certain aspects of copyright and related rights — Article 3(1) — Communication to the public — Concept — Publication online, without the consent of the rightholder, of a photograph previously published on another website without any restrictions and with the consent of the rightholder — New public)

10

2018/C 352/14

Case C-300/17: Judgment of the Court (Third Chamber) of 7 August 2018 (request for a preliminary ruling from the Kúria — Hungary) — Hochtief AG v Budapest Főváros Önkormányzata (Reference for a preliminary ruling — Public procurement — Review procedures — Directive 89/665/EC — Action for damages — Article 2(6) — National rules making the admissibility of any action for damages subject to a prior and definitive determination of the illegality of the decision of the contracting authority giving rise to the damage alleged — Actions for annulment — Prior action before an arbitration committee — Judicial review of arbitral decisions — National rules excluding pleas not raised before the arbitration committee — Charter of Fundamental Rights of the European Union — Article 47 — Right to effective judicial protection — Principles of effectiveness and equivalence)

11

2018/C 352/15

Case C-329/17: Judgment of the Court (Eighth Chamber) of 7 August 2018 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Gerhard Prenninger and Others v Oberösterreichische Landesregierung (Reference for a preliminary ruling — Environment — Directive 2011/92/EU — Assessment of the effects of certain projects on the environment — Annex II — Point 1(d) — Concept of deforestation for the purposes of conversion to another type of land use — Clearance of a path in a forest in connection with the construction and operation of an overhead electrical power line)

12

2018/C 352/16

Case C-435/17: Judgment of the Court (Third Chamber) of 7 August 2018 (request for a preliminary ruling from the Tartu Halduskohus — Estonia) — Argo Kalda Mardi talu v Põllumajanduse Registrite ja Informatsiooni Amet (PRIA) (Reference for a preliminary ruling — Common agricultural policy — Direct payments — Regulation (EU) No 1306/2013 — Articles 93 and 94 — Annex II — Cross-compliance — Agricultural and environmental conditions — Minimum requirements — Implementation by a Member State — Obligation to conserve burial grounds — Scope)

12

2018/C 352/17

Case C-475/17: Judgment of the Court (Seventh Chamber) of 7 August 2018 (request for a preliminary ruling from the Riigikohus — Estonia) — Viking Motors AS and Others v Tallinna linn, Maksu- ja Tolliamet (Reference for a preliminary ruling — Taxation — Common system of value added tax (VAT) — Directive 2006/112/EC — Article 401 — Domestic taxes which can be characterised as turnover taxes — Prohibition — Concept of turnover tax — Local sales tax — Essential characteristics of VAT — None)

13

2018/C 352/18

Case C-485/17: Judgment of the Court (Eighth Chamber) of 7 August 2018 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Verbraucherzentrale Berlin eV v Unimatic Vertriebs GmbH (Reference for a preliminary ruling — Consumer protection — Directive 2011/83/EU — Article 2(9) — Concept of business premises — Criteria — Sales contract concluded on a stand run by a trader at a trade fair)

14

2018/C 352/19

Case C-521/17: Judgment of the Court (Third Chamber) of 7 August 2018 (request for a preliminary ruling from the Tallinna Ringkonnakohus — Estonia) — Coöperatieve Vereniging SNB-REACT U.A. v Deepak Mehta (Reference for a preliminary ruling — Intellectual and industrial property — Directive 2004/48/EC — Article 4 — Legal standing of a body for the collective representation of trade mark proprietors — Directive 2000/31/EC — Articles 12 to 14 — Liability of a provider of IP address rental and registration services allowing the anonymous use of domain names and websites)

15

2018/C 352/20

Case C-396/18: Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 15 June 2018 — Gennaro Cafaro v DQ

15

2018/C 352/21

Case C-417/18: Request for a preliminary ruling from the Vilniaus apygardos administracinis teismas (Lithuania) lodged on 26 June 2018 — AW, BV, CU, DT v Republic of Lithuania, represented by Lietuvos Respublikos ryšių reguliavimo tarnyba, Bendrasis pagalbos centras and Lietuvos Respublikos vidaus reikalų ministerija

16

2018/C 352/22

Case C-430/18: Action brought on 29 June 2018 — European Commission v Kingdom of Spain

17

2018/C 352/23

Case C-433/18: Request for a preliminary ruling from the Korkein oikeus (Finland) lodged on 2 July 2018 — ML v OÜ Aktiva Finants

18

2018/C 352/24

Case C-435/18: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 29 June 2018 — Otis Gesellschaft m.b.H. and Others v Land Oberösterreich and Others

19

2018/C 352/25

Case C-454/18: Request for a preliminary ruling from the Förvaltningsrätten i Linköping (Sweden) lodged on 12 July 2018 — Baltic Cable AB v Energimarknadsinspektionen

19

2018/C 352/26

Case C-467/18: Request for a preliminary ruling from the Rayonen Sad Lukovit (Bulgaria) lodged on 17 July 2018 — criminal proceedings against EP

20

2018/C 352/27

Case C-476/18: Request for a preliminary ruling from the Pesti Központi Kerületi Bíróság (Hungary) lodged on 23 July 2018 — PannonHitel Pénzügyi Zrt. v WizzAir Hungary Légiközlekedési Kft.

22

2018/C 352/28

Case C-482/18: Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 24 July 2018 — Google Ireland Limited v Nemzeti Adó- és Vámhivatal Kiemelt Adó- és Vámigazgatósága

23

2018/C 352/29

Case C-484/18: Request for a preliminary ruling from the Cour de cassation (France) lodged on 20 July 2018 — Société de perception et de distribution des droits des artistes-interprètes de la musique and de la danse (SPEDIDAM), PG, GF v Institut national de l’audiovisuel

24

2018/C 352/30

Case C-485/18: Request for a preliminary ruling from the Conseil d’État (France) lodged on 24 July 2018 — Groupe Lactalis v Premier ministre, Ministre de l’Agriculture et de l’Alimentation, Garde des Sceaux, Ministre de la Justice, Ministre de l’Économie et des Finances

25

2018/C 352/31

Case C-486/18: Request for a preliminary ruling from the Cour de cassation (France) lodged on 23 July 2018 — RE v Praxair MRC

26

2018/C 352/32

Case C-495/18: Request for a preliminary ruling from the Najvyšší súd Slovenskej republiky (the Slovak Republic) lodged on 30 July 2018 — YX

26

General Court

2018/C 352/33

Case T-680/13: Judgment of the General Court of 13 July 2018 — K. Chrysostomides & Co. and Others v Council and Others (Non-contractual liability — Economic and monetary policy — Stability support programme for Cyprus — Decision of the Governing Council of the ECB relating to emergency liquidity assistance following a request from the Central Bank of Cyprus — Euro Group Statements of 25 March, 12 April, 13 May and 13 September 2013 concerning Cyprus — Decision 2013/236/EU — Memorandum of Understanding of 26 April 2013 on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism — Jurisdiction of the General Court — Admissibility — Formal requirements — Exhaustion of national rights of action — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Right to property — Legitimate expectations — Equal treatment)

28

2018/C 352/34

Case T-786/14: Judgment of the General Court of 13 July 2018 — Bourdouvali and Others v Council and Others (Non-contractual liability — Economic and monetary policy — Stability support programme for Cyprus — Decision of the Governing Council of the ECB relating to emergency liquidity assistance following a request from the Central Bank of Cyprus — Euro Group Statements of 25 March, 12 April, 13 May and 13 September 2013 concerning Cyprus — Decision 2013/236/EU — Memorandum of Understanding of 26 April 2013 on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism — Jurisdiction of the General Court — Admissibility — Formal requirements — Exhaustion of national rights of action — Sufficiently serious breach of a rule of law intended to confer rights on individuals — Right to property — Legitimate expectations — Equal treatment)

29

2018/C 352/35

Case T-733/16: Judgment of the General Court of 13 July 2018 — Banque postale v ECB (Economic and monetary policy — Prudential supervision of credit institutions — Article 4(1)(d) and (3) of Regulation (EU) No 1024/2013 — Calculation of the leverage ratio — Refusal of the ECB to grant authorisation to the applicant to exclude exposures meeting certain conditions from the calculation of the leverage ratio — Article 429(14) of Regulation (EU) No 575/2013 — Discretion of the ECB — Errors of law — Manifest error of assessment)

30

2018/C 352/36

Case T-751/16: Judgment of the General Court of 13 July 2018 — BNP Paribas v ECB (Economic and monetary policy — Prudential supervision of credit institutions — Article 4(1)(d) and (3) of Regulation (EU) No 1024/2013 — Calculation of the leverage ratio — Refusal of the ECB to grant authorisation to the applicant to exclude exposures meeting certain conditions from the calculation of the leverage ratio — Article 429(14) of Regulation (EU) No 575/2013 — Discretion of the ECB — Errors of law — Manifest error of assessment)

31

2018/C 352/37

Case T-768/16: Judgment of the General Court of 13 July 2018 — BNP Paribas v ECB (Economic and monetary policy — Prudential supervision of credit institutions — Article 4(1)(d) and (3) of Regulation (EU) No 1024/2013 — Calculation of the leverage ratio — Refusal of the ECB to grant authorisation to the applicant to exclude exposures meeting certain conditions from the calculation of the leverage ratio — Article 429(14) of Regulation (EU) No 575/2013 — Discretion of the ECB — Errors of law — Manifest error of assessment)

32

2018/C 352/38

Case T-825/16: Judgment of the General Court of 13 July 2018 — Cyprus v EUIPO — Papouis Dairies (Pallas Halloumi) (EU trade mark — Opposition proceedings — Application for EU figurative mark Pallas Halloumi — Prior United Kingdom word certification mark HALLOUMI — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

32

2018/C 352/39

Case T-847/16: Judgment of the General Court of 13 July 2018 — Cyprus v EUIPO — POA (COWBOYS HALLOUMI) (EU trade mark — Opposition proceedings — Application for EU figurative mark COWBOYS HALLOUMI — Prior United Kingdom word certification mark HALLOUMI — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

33

2018/C 352/40

Case T-797/17: Judgment of the General Court of 13 July 2018 — Star Television Productions v EUIPO — Marc Dorcel (STAR) (EU trade mark — Revocation proceedings — EU figurative mark STAR — No genuine use of the mark — Article 51(1)(a) of Regulation (EC) No 207/2009 (now Article 58(1)(a) of Regulation (EU) 2017/1001))

34

2018/C 352/41

Case T-388/18: Action brought on 27 June 2018 — WV v EEAS

34

2018/C 352/42

Case T-391/18: Action brought on 27 June 2018 — Riesco García v Parliament

36

2018/C 352/43

Case T-396/18: Action brought on 29 June 2018 — ITSA v Commission

36

2018/C 352/44

Case T-436/18: Action brought on 13 July 2018 — Prigent v Commission

37

2018/C 352/45

Case T-453/18: Action brought on 24 July 2018 — Biasotto v EUIPO — OOFOS (OOF)

38

2018/C 352/46

Case T-454/18: Action brought on 24 July 2018 — Biasotto v EUIPO — OOFOS (OO)

39

2018/C 352/47

Case T-463/18: Action brought on 30 July 2018 — Novartis v EUIPO (SMARTSURFACE)

40

2018/C 352/48

Case T-473/18: Action brought on 27 July 2018 — Getsmarter Online v EUIPO (getsmarter)

40

2018/C 352/49

Case T-474/18: Action brought on 6 August 2018 — Veit v ECB

41

2018/C 352/50

Case T-481/18: Action brought on 1 August 2018 — Electroquímica Onubense v ECHA

42

2018/C 352/51

Case T-487/18: Action brought on 14 August 2018 — Stada Arzneimittel v EUIPO (ViruProtect)

42

2018/C 352/52

Case T-491/18: Action brought on 14 August 2018 — Vafo Praha v EUIPO — Rutzinger-Kurpas (Meatlove)

43

2018/C 352/53

Case T-492/18: Action brought on 15 August 2018 — Zhadanov v EUIPO (Scanner Pro)

44

2018/C 352/54

Case T-495/18: Action brought on 17 August 2018 — Dermatest v EUIPO (DERMATEST)

44

2018/C 352/55

Case T-496/18: Action brought on 17 August 2018 — OCU v SRB

45

2018/C 352/56

Case T-497/18: Action brought on 14 August 2018 — IAK — Forum International v EUIPO — Schwalb (IAK)

46

2018/C 352/57

Case T-498/18: Action brought on 20 August 2018 — ZPC Flis v EUIPO — Aldi Einkauf (Happy Moreno choco)

47

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| EN | |
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EN

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

| 1.10.2018 | EN | Official Journal of the European Union | C 352/1 |
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1.10.2018

EN

Official Journal of the European Union

C 352/1

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

(2018/C 352/01)

Last publication

OJ C 341, 24.9.2018

Past publications

OJ C 328, 17.9.2018

OJ C 319, 10.9.2018

OJ C 311, 3.9.2018

OJ C 301, 27.8.2018

OJ C 294, 20.8.2018

OJ C 285, 13.8.2018

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 1.10.2018 | EN | Official Journal of the European Union | C 352/2 |
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1.10.2018

EN

Official Journal of the European Union

C 352/2

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Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Juzgado de Primera Instancia No 38 de Barcelona, Tribunal Supremo — Spain) — Banco Santander SA v Mahamadou Demba, Mercedes Godoy Bonet (C-96/16), Rafael Ramón Escobedo Cortés v Banco de Sabadell SA (C-94/17)

(Joined Cases C-96/16 and C-94/17) (1)

((Reference for a preliminary ruling - Directive 93/13/EEC - Unfair terms - Scope - Assignment of debts - Loan agreement concluded with a consumer - Criteria for assessing the unfairness of a contractual term setting the default interest rate - Consequences of that unfairness))

(2018/C 352/02)

Language of the case: Spanish

Referring court

Juzgado de Primera Instancia No 38 de Barcelona, Tribunal Supremo

Parties to the main proceedings

Applicants: Banco Santander SA (C-96/16), Rafael Ramón Escobedo Cortés (C-94/17)

Defendants: Mahamadou Demba, Mercedes Godoy Bonet (C-96/16), Banco de Sabadell SA (C-94/17)

Operative part of the judgment

| 1. | Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, must be interpreted, first, as not applying to a business practice consisting in assigning or purchasing a consumer’s debt, without any provision for such an assignment having been made in the loan agreement concluded with the consumer, without giving the consumer prior notice of that assignment, without his consent and without giving him the opportunity to buy back and thereby extinguish his debt by reimbursing to the assignee the price it paid in respect of that assignment, plus the applicable interest, expenses and costs. Secondly, that directive does not apply to national provisions, such as those contained in Article 1535 of the Código Civil (Civil Code) and Articles 17 and 540 of Ley 1/2000 de Enjuiciamiento Civil (Civil Procedure Code) of 7 January 2000, which regulate that opportunity to buy back a debt and govern the replacement of the assignor by the assignee in ongoing proceedings. |
| --- | --- |

1.

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, must be interpreted, first, as not applying to a business practice consisting in assigning or purchasing a consumer’s debt, without any provision for such an assignment having been made in the loan agreement concluded with the consumer, without giving the consumer prior notice of that assignment, without his consent and without giving him the opportunity to buy back and thereby extinguish his debt by reimbursing to the assignee the price it paid in respect of that assignment, plus the applicable interest, expenses and costs. Secondly, that directive does not apply to national provisions, such as those contained in Article 1535 of the Código Civil (Civil Code) and Articles 17 and 540 of Ley 1/2000 de Enjuiciamiento Civil (Civil Procedure Code) of 7 January 2000, which regulate that opportunity to buy back a debt and govern the replacement of the assignor by the assignee in ongoing proceedings.

| 2. | Directive 93/13 must be interpreted as not precluding national case-law, such as that of the Tribunal Supremo (Supreme Court, Spain) at issue in the main proceedings, whereby, in a loan agreement concluded with a consumer, a non-negotiated term fixing the default interest rate applicable is unfair, on the ground that the consumer who is late performing his payment obligation is required to pay a disproportionately high sum in compensation, where that rate exceeds by more than two percentage points the ordinary interest rate provided for in that agreement. |
| --- | --- |

2.

Directive 93/13 must be interpreted as not precluding national case-law, such as that of the Tribunal Supremo (Supreme Court, Spain) at issue in the main proceedings, whereby, in a loan agreement concluded with a consumer, a non-negotiated term fixing the default interest rate applicable is unfair, on the ground that the consumer who is late performing his payment obligation is required to pay a disproportionately high sum in compensation, where that rate exceeds by more than two percentage points the ordinary interest rate provided for in that agreement.

| 3. | Directive 93/13 must be interpreted as not precluding national case-law, such as that of the Tribunal Supremo (Supreme Court) at issue in the main proceedings, whereby the consequence of the unfairness of a non-negotiated term fixing the default interest rate in a loan agreement concluded with a consumer consists in the complete elimination of that interest, while the ordinary interest provided for in that agreement continues to run. |
| --- | --- |

3.

Directive 93/13 must be interpreted as not precluding national case-law, such as that of the Tribunal Supremo (Supreme Court) at issue in the main proceedings, whereby the consequence of the unfairness of a non-negotiated term fixing the default interest rate in a loan agreement concluded with a consumer consists in the complete elimination of that interest, while the ordinary interest provided for in that agreement continues to run.

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(1)  OJ C 145, 25.4.2016.

OJ C 151, 15.5.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/3 |
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1.10.2018

EN

Official Journal of the European Union

C 352/3

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Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León — Spain) — Jorge Luis Colino Sigüenza v Ayuntamiento de Valladolid and Others

(Case C-472/16) (1)

((Reference for a preliminary ruling - Directive 2001/23/EC - Scope - Article 1(1) - Transfers of undertakings - Safeguarding of employees’ rights - Service contract for the management of a municipal Academy of Music - Cessation of the activity of the first contractor before the end of the current school year and designation of a new contractor at the beginning of the following school year - Article 4(1) - Prohibition of dismissal by reason of transfer - Exception - Dismissal for economic, technical or organisational reasons entailing changes in the workforce - Charter of Fundamental Rights of the European Union - Article 47))

(2018/C 352/03)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Castilla y León

Parties to the main proceedings

Applicant: Jorge Luis Colino Sigüenza

Defendants: Ayuntamiento de Valladolid, In-pulso Musical SC, Miguel del Real Llorente, Administrador Concursal Músicos y Escuela SL, Músicos y Escuela SL, Fondo de Garantía Salarial (Fogasa)

Operative part of the judgment

| 1. | Article 1(1) of Council Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that a situation, such as that at issue in the main proceedings, where the successful tenderer for a service contract for the management of a municipal school of music, to which the municipal administration had supplied all the means necessary for the exercise of that activity, ceases that activity two months before the end of the current academic year, proceeding to dismiss the staff and returning those material resources to that municipal administration, which conducts a new tendering procedure solely for the following academic year and provides the new contractor with the same material resources, is capable of coming within the scope of that directive; |
| --- | --- |

1.

Article 1(1) of Council Directive 2001/23/EC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses must be interpreted as meaning that a situation, such as that at issue in the main proceedings, where the successful tenderer for a service contract for the management of a municipal school of music, to which the municipal administration had supplied all the means necessary for the exercise of that activity, ceases that activity two months before the end of the current academic year, proceeding to dismiss the staff and returning those material resources to that municipal administration, which conducts a new tendering procedure solely for the following academic year and provides the new contractor with the same material resources, is capable of coming within the scope of that directive;

| 2. | Article 4(1) of Directive 2001/23 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, where the successful tenderer for a service contract for the management of a municipal school of music ceases that activity two months before the end of the current academic year, proceeding to dismiss the staff, the new contractor taking over the activity at the beginning of the next academic year, it appears that the dismissal of the employees was made for ‘economic, technical or organisational reasons entailing changes in the workforce’, within the meaning of that provision, provided that the circumstances which gave rise to the dismissal of all the employees and the delayed appointment of a new service provider are not a deliberate measure intended to deprive those employees of the rights conferred on them by Directive 2001/23, which it will be for the referring court to ascertain. |
| --- | --- |

2.

Article 4(1) of Directive 2001/23 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, where the successful tenderer for a service contract for the management of a municipal school of music ceases that activity two months before the end of the current academic year, proceeding to dismiss the staff, the new contractor taking over the activity at the beginning of the next academic year, it appears that the dismissal of the employees was made for ‘economic, technical or organisational reasons entailing changes in the workforce’, within the meaning of that provision, provided that the circumstances which gave rise to the dismissal of all the employees and the delayed appointment of a new service provider are not a deliberate measure intended to deprive those employees of the rights conferred on them by Directive 2001/23, which it will be for the referring court to ascertain.

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(1)  OJ C 441, 28.11.2016.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/4 |
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1.10.2018

EN

Official Journal of the European Union

C 352/4

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Judgment of the Court (Second Chamber) of 7 August 2018 (request for a preliminary ruling from the Tribunal Supremo — Spain) — Saras Energía SA v Administración del Estado

(Case C-561/16) (1)

((Reference for a preliminary ruling - Directive 2012/27/EU - Article 7(1), (4) and (9) - Article 20(4) and (6) - Promotion of energy efficiency - Energy efficiency obligation scheme - Other policy measures - Energy Efficiency National Fund - Establishment of such a fund as the main measure implementing energy efficiency obligations - Contribution obligation - Designation of the obligated parties - Energy distributors and/or retail energy sales companies))

(2018/C 352/04)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Saras Energía SA

Defendant: Administración del Estado

Interveners: Endesa SA, Endesa Energía SA, Endesa Energía XXI SLU, Viesgo Infraestructuras Energéticas SL, Hidroeléctrica del Cantábrico SAU, Nexus Energía SA, Nexus Renovables SLU, Engie España SL, Villar Mir Energía SL, Energya VM Gestión de Energía SLU, Estaciones de Servicio de Guipúzcoa SA, Acciona Green Energy Developments SLU, Fortia Energía SL

Operative part of the judgment

| 1. | Articles 7 and 20 of Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC must be interpreted as meaning that they do not preclude national legislation which lays down, as the principal method of fulfilling energy efficiency obligations, a mechanism of annual contribution to an Energy Efficiency National Fund, provided, on the one hand, that that legislation ensures the achievement of energy savings to an extent equivalent to the energy efficiency obligation schemes which may be implemented under Article 7(1) of that directive, and, on the other, that the requirements of Article 7(10) and (11) of that directive, are satisfied, which it is for the referring court to ascertain; |
| --- | --- |

1.

Articles 7 and 20 of Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC must be interpreted as meaning that they do not preclude national legislation which lays down, as the principal method of fulfilling energy efficiency obligations, a mechanism of annual contribution to an Energy Efficiency National Fund, provided, on the one hand, that that legislation ensures the achievement of energy savings to an extent equivalent to the energy efficiency obligation schemes which may be implemented under Article 7(1) of that directive, and, on the other, that the requirements of Article 7(10) and (11) of that directive, are satisfied, which it is for the referring court to ascertain;

| 2. | Article 7 of Directive 2012/27 must be interpreted as meaning that it does not preclude national legislation, such as that at issue in the main proceedings, which imposes energy efficiency obligations on only certain specific undertakings in the energy sector, provided that the designation of those companies as obligated parties is actually based on explicitly stated, objective and non-discriminatory criteria, which it is for the referring court to ascertain. |
| --- | --- |

2.

Article 7 of Directive 2012/27 must be interpreted as meaning that it does not preclude national legislation, such as that at issue in the main proceedings, which imposes energy efficiency obligations on only certain specific undertakings in the energy sector, provided that the designation of those companies as obligated parties is actually based on explicitly stated, objective and non-discriminatory criteria, which it is for the referring court to ascertain.

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(1)  OJ C 22, 23.1.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/4 |
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1.10.2018

EN

Official Journal of the European Union

C 352/4

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Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD) — Portugal) — TGE Gas Engineering GmbH — Sucursal em Portugal v Autoridade Tributária e Aduaneira

(Case C-16/17) (1)

((Reference for a preliminary ruling - Value added tax (VAT) - Deduction of input tax - Origin and scope of the right to deduct))

(2018/C 352/05)

Language of the case: Portuguese

Referring court

Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa — CAAD)

Parties to the main proceedings

Applicant: TGE Gas Engineering GmbH — Sucursal em Portugal

Defendant: Autoridade Tributária e Aduaneira

Operative part of the judgment

Articles 167 and 168 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, and the principle of neutrality must be interpreted as precluding the tax authority of a Member State from regarding a company which has its headquarters in another Member State and the branch which it has in the first of those States as constituting two separate taxable entities on the ground that each of those entities has a tax identification number, and, for that reason, from refusing that branch the right to deduct value added tax (VAT) on the debit notes issued by an economic interest group of which that company, and not its branch, is a member.

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(1)  OJ C 104, 3.4.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/5 |
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1.10.2018

EN

Official Journal of the European Union

C 352/5

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Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Bundesverwaltungsgericht — Austria) — VTB Bank (Austria) AG v Finanzmarktaufsichtsbehörde

(Case C-52/17) (1)

((Reference for a preliminary ruling - Approximation of laws - Directive 2013/36/EU - Articles 64, 65 and 67 - Regulation (EU) No 575/2013 - Article 395(1) and (5) - Supervision of credit institutions - Supervisory powers and powers to impose penalties - Large exposure limits - Legislation of a Member State under which interest is levied where those limits are exceeded - Regulation (EU) No 468/2014 - Article 48 - Attribution of areas of competence between the European Central Bank (ECB) and national authorities - Formally initiated supervisory procedure))

(2018/C 352/06)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: VTB Bank (Austria) AG

Defendant: Finanzmarktaufsichtsbehörde

Operative part of the judgment

| 1. | Articles 64 and 65(1) of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, and Article 395(1) and (5) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 are to be interpreted as precluding national legislation which provides that, where the exposure limits set out in Article 395(1) of that regulation are exceeded, ‘absorption’ interest is to be levied automatically on a credit institution, even if that institution fulfils the conditions laid down in Article 395(5) of the regulation under which a credit institution may exceed those limits. |
| --- | --- |

1.

Articles 64 and 65(1) of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, and Article 395(1) and (5) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 are to be interpreted as precluding national legislation which provides that, where the exposure limits set out in Article 395(1) of that regulation are exceeded, ‘absorption’ interest is to be levied automatically on a credit institution, even if that institution fulfils the conditions laid down in Article 395(5) of the regulation under which a credit institution may exceed those limits.

| 2. | Article 48(3) of the Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation) is to be interpreted as meaning that a supervisory procedure cannot be regarded as having been formally initiated, within the meaning of that provision, either where a credit institution reports to the national supervisory authority that the limits set in Article 395(1) of Regulation No 575/2013 have been exceeded, or where that authority has already adopted a decision in a parallel procedure concerning similar breaches. |
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2.

Article 48(3) of the Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation) is to be interpreted as meaning that a supervisory procedure cannot be regarded as having been formally initiated, within the meaning of that provision, either where a credit institution reports to the national supervisory authority that the limits set in Article 395(1) of Regulation No 575/2013 have been exceeded, or where that authority has already adopted a decision in a parallel procedure concerning similar breaches.

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(1)  OJ C 144, 8.5.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/6 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/6

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Judgment of the Court (Fourth Chamber) of 7 August 2018 (request for a preliminary ruling from the Conseil d’État — France) — Château du Grand Bois SCI v Établissement national des produits de l’agriculture et de la mer (FranceAgriMer)

(Case C-59/17) (1)

((Reference for a preliminary ruling - Agriculture - Market in wine - Regulation (EC) No 555/2008 - Support for the restructuring and conversion of vineyards - Unannounced on-the-spot checks - Powers of control officials - Whether officials may enter agricultural land without having obtained the vine grower’s permission))

(2018/C 352/07)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Appellant: Château du Grand Bois SCI

Respondent: Établissement national des produits de l’agriculture et de la mer (FranceAgriMer)

Operative part of the judgment

Articles 76, 78 and 81 of Commission Regulation (EC) No 555/2008 of 27 June 2008 laying down detailed rules for implementing Council Regulation (EC) No 479/2008 on the common organisation of the market in wine as regards support programmes, trade with third countries, production potential and on controls in the wine sector, must be interpreted as not authorising officials carrying out an on-the-spot check to enter agricultural land without having obtained the vine grower’s permission.

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(1)  OJ C 112, 10.4.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/6 |
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1.10.2018

EN

Official Journal of the European Union

C 352/6

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Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Landesarbeitsgericht Berlin-Brandenburg — Germany) — Miriam Bichat (C-61/17), Daniela Chlubna (C-62/17), Isabelle Walkner (C-72/17) v Aviation Passage Service Berlin GmbH & Co. KG

(Joined Cases C-61/17, C-62/17 and C-72/17) (1)

((Reference for a preliminary ruling - Social policy - Collective redundancies — Directive 98/59/EC - First subparagraph of Article 2(4) - Definition of ‘undertaking controlling the employer’ - Procedures for consultation of workers - Burden of proof))

(2018/C 352/08)

Language of the case: German

Referring court

Landesarbeitsgericht Berlin-Brandenburg

Parties to the main proceedings

Appellants: Miriam Bichat (C-61/17), Daniela Chlubna (C-62/17), Isabelle Walkner (C-72/17)

Respondent: Aviation Passage Service Berlin GmbH & Co. KG

Operative part of the judgment

The first subparagraph of Article 2(4) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as meaning that the term ‘undertaking controlling the employer’ covers all undertakings linked to that employer by shareholdings in the latter or by other links in law which allow it to exercise decisive influence in the employer’s decision-making bodies and compel it to contemplate or to plan for collective redundancies.

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(1)  OJ C 144, 8.5.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/7 |
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1.10.2018

EN

Official Journal of the European Union

C 352/7

---

Judgment of the Court (Fifth Chamber) of 7 August 2018 (request for a preliminary ruling from the Cour de cassation — France) — Administration des douanes et des droits indirects, Établissement national des produits de l’agriculture et de la mer (FranceAgriMer) v Hubert Clergeau and Others

(Case C-115/17) (1)

((Reference for a preliminary ruling - Regulation (EEC) No 1964/82 - False declarations or deceitful practices in order to secure special export refunds on certain cuts of boned meat of bovine animals - Amendment to Regulation No 1964/82 extending the entitlement to special export refunds - Principle of the retroactive application of the more lenient criminal law - Third sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union))

(2018/C 352/09)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicants: Administration des douanes et des droits indirects, Établissement national des produits de l’agriculture et de la mer (FranceAgriMer)

Defendants: Hubert Clergeau, Jean-Luc Labrousse, Jean-Jacques Berthellemy, Alain Bouchet, Jean-Pierre Dubois, Marcel Géry, Jean-Paul Matrat, Jean-Pierre Paziot, Patrice Raillot

Operative part of the judgment

The principle of the retroactive application of the more lenient criminal law, enshrined in the third sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding a situation in which a person is convicted on the ground that he wrongfully obtained special export refunds provided for in Commission Regulation (EEC) No 1964/82 of 20 July 1982 laying down the conditions for granting special export refunds on certain cuts of boned meat of bovine animals, by means of deceitful practices or the making of false statements as to the nature of the goods in respect of which the refunds were requested, although, as a result of changes in those rules which occurred subsequent to the acts complained of, the goods that were exported by that person have since become eligible for those refunds.

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(1)  OJ C 178, 6.6.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/8 |
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1.10.2018

EN

Official Journal of the European Union

C 352/8

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Judgment of the Court (Eighth Chamber) of 7 August 2018 (request for a preliminary ruling from the Satversmes tiesa — Latvia) — Administratīvā rajona tiesa v Ministru kabinets

(Case C-120/17) (1)

((Reference for a preliminary ruling - Agriculture - Support for rural development - Regulation (EC) No 1257/1999 - Articles 10 to 12 - Early retirement support - National legislation providing for the transfer by inheritance of early retirement support - Legislation approved by the European Commission - Subsequent change of position - Protection of legitimate expectations))

(2018/C 352/10)

Language of the case: Latvian

Referring court

Satversmes tiesa

Parties to the main proceedings

Applicant: Administratīvā rajona tiesa

Defendant: Ministru kabinets

Operative part of the judgment

| 1. | Articles 10 to 12 of Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain regulations must be interpreted as precluding Member States, when implementing those articles, from adopting measures making it possible to transfer by inheritance support for early retirement such as that at issue in the main proceedings. |
| --- | --- |

1.

Articles 10 to 12 of Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain regulations must be interpreted as precluding Member States, when implementing those articles, from adopting measures making it possible to transfer by inheritance support for early retirement such as that at issue in the main proceedings.

| 2. | The principle of the protection of legitimate expectations must be interpreted as meaning that a provision of national law, such as that at issue in the main proceedings –– which provided for the transfer by inheritance of early retirement support and was approved by the European Commission as compatible with Regulation No 1257/1999 –– gave rise to a legitimate expectation on the part of the heirs of farmers who received that support, and that a conclusion such as that mentioned in the minutes of the meeting of the European Commission Committee on Rural Development of 19 October 2011, to the effect that such support may not be passed on by inheritance, did not bring that legitimate expectation to an end. |
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2.

The principle of the protection of legitimate expectations must be interpreted as meaning that a provision of national law, such as that at issue in the main proceedings –– which provided for the transfer by inheritance of early retirement support and was approved by the European Commission as compatible with Regulation No 1257/1999 –– gave rise to a legitimate expectation on the part of the heirs of farmers who received that support, and that a conclusion such as that mentioned in the minutes of the meeting of the European Commission Committee on Rural Development of 19 October 2011, to the effect that such support may not be passed on by inheritance, did not bring that legitimate expectation to an end.

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(1)  OJ C 168, 29.5.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/8 |
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1.10.2018

EN

Official Journal of the European Union

C 352/8

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Judgment of the Court (Grand Chamber) of 7 August 2018 (request for a preliminary ruling from the Court of Appeal — Ireland) — David Smith v Patrick Meade, Philip Meade, FBD Insurance plc, Ireland, Attorney General

(Case C-122/17) (1)

((Reference for a preliminary ruling - Approximation of laws - Insurance against civil liability in respect of the use of motor vehicles - Third Directive 90/232/EEC - Article 1 - Liability for personal injury caused to all passengers other than the driver - Compulsory insurance - Direct effect of directives - Obligation to disapply national legislation contrary to a directive - Non-application of a contractual clause contrary to a directive))

(2018/C 352/11)

Language of the case: English

Referring court

Court of Appeal

Parties to the main proceedings

Applicant: David Smith

Defendants: Patrick Meade, Philip Meade, FBD Insurance plc, Ireland, Attorney General

Operative part of the judgment

EU law, in particular Article 288 TFEU, must be interpreted as meaning that a national court, hearing a dispute between private persons, which finds that it is unable to interpret the provisions of its national law that are contrary to a provision of a directive that satisfies all the conditions required for it to produce direct effect in a manner that is compatible with that provision, is not obliged, solely on the basis of EU law, to disapply those provisions of national law and a clause to be found, as a consequence of those provisions of national law, in an insurance contract.

In a situation such as that at issue in the main proceedings, a party adversely affected by the incompatibility of national law with EU law or a person subrogated to the rights of that party could however rely on the case-law arising from the judgment of 19 November 1991, Francovich and Others (C 6/90 and C 9/90, EU:C:1991:428), in order to obtain from the Member State, if justified, compensation for any loss sustained.

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(1)  OJ C 151, 15.5.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/9 |
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1.10.2018

EN

Official Journal of the European Union

C 352/9

---

Judgment of the Court (First Chamber) of 7 August 2018 (request for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Nefiye Yön v Landeshauptstadt Stuttgart

(Case C-123/17) (1)

((Reference for a preliminary ruling - EEC-Turkey Association - Decision No 2/76 - Article 7 - Standstill clause - Right of residence of family members of a Turkish worker - Visa requirement for admission to the territory of a Member State))

(2018/C 352/12)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Nefiye Yön

Defendant: Landeshauptstadt Stuttgart

Interveners: Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

Operative part of the judgment

Article 7 of Decision No 2/76 of 20 December 1976 adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 by the Republic of Turkey, on the one hand, and by the Member States of the EEC and the Community, on the other, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963, must be interpreted as meaning that a national measure, such as that at issue in the main proceedings, taken during the period from 20 December 1976 to 30 November 1980, which makes the grant, for the purposes of family reunification, of a residence permit to third-country nationals who are family members of a Turkish worker residing lawfully in the Member State concerned, subject to such nationals obtaining, before entering national territory, a visa for the purpose of that reunification, constitutes a ‘new restriction’ within the meaning of that provision. Such a measure may nevertheless be justified on the grounds of the effective control of immigration and the management of migratory flows, but may be accepted only provided that the detailed rules relating to its implementation do not go beyond what is necessary to achieve the objective pursued, which it is for the national court to verify.

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(1)  OJ C 318, 25.9.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/10 |
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1.10.2018

EN

Official Journal of the European Union

C 352/10

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Judgment of the Court (Second Chamber) of 7 August 2018 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Land Nordrhein-Westfalen v Dirk Renckhoff

(Case C-161/17) (1)

((Reference for a preliminary ruling - Copyright and related rights - Directive 2001/29/EC - Information society - Harmonisation of certain aspects of copyright and related rights - Article 3(1) - Communication to the public - Concept - Publication online, without the consent of the rightholder, of a photograph previously published on another website without any restrictions and with the consent of the rightholder - New public))

(2018/C 352/13)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Appellant on a point of law: Land Nordrhein-Westfalen

Respondent in the appeal on a point of law: Dirk Renckhoff

Operative part of the judgment

The concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as meaning that it covers the posting on one website of a photograph previously posted, without any restriction preventing it from being downloaded and with the consent of the copyright holder, on another website.

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(1)  OJ C 231, 17.7.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/11 |
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1.10.2018

EN

Official Journal of the European Union

C 352/11

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Judgment of the Court (Third Chamber) of 7 August 2018 (request for a preliminary ruling from the Kúria — Hungary) — Hochtief AG v Budapest Főváros Önkormányzata

(Case C-300/17) (1)

((Reference for a preliminary ruling - Public procurement - Review procedures - Directive 89/665/EC - Action for damages - Article 2(6) - National rules making the admissibility of any action for damages subject to a prior and definitive determination of the illegality of the decision of the contracting authority giving rise to the damage alleged - Actions for annulment - Prior action before an arbitration committee - Judicial review of arbitral decisions - National rules excluding pleas not raised before the arbitration committee - Charter of Fundamental Rights of the European Union - Article 47 - Right to effective judicial protection - Principles of effectiveness and equivalence))

(2018/C 352/14)

Language of the case: Hungarian

Referring court

Kúria

Parties to the main proceedings

Applicant: Hochtief AG

Defendant: Budapest Főváros Önkormányzata

Operative part of the judgment

| 1. | Article 2(6) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, must be interpreted as not precluding a national procedural rule, such as that at issue in the main proceedings, which makes the possibility of asserting a claim under civil law in the event of an infringement of the rules governing public procurement and the award of public contracts subject to the condition that the infringement be definitively established by an arbitration committee or, in the context of judicial review of an decision of that arbitration committee, by a court. |
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1.

Article 2(6) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, must be interpreted as not precluding a national procedural rule, such as that at issue in the main proceedings, which makes the possibility of asserting a claim under civil law in the event of an infringement of the rules governing public procurement and the award of public contracts subject to the condition that the infringement be definitively established by an arbitration committee or, in the context of judicial review of an decision of that arbitration committee, by a court.

| 2. | European Union law, and in particular Article 1(1) and (3) of Directive 89/665, as amended by Directive 2014/23, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in the context of an action for damages, it does not preclude a national procedural rule, such as that at issue in the main proceedings, which restricts the judicial review of arbitral decisions issued by an arbitration committee responsible at first instance for the review of decisions taken by contracting authorities in public procurement procedures to examine only the pleas raised before that committee. |
| --- | --- |

2.

European Union law, and in particular Article 1(1) and (3) of Directive 89/665, as amended by Directive 2014/23, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in the context of an action for damages, it does not preclude a national procedural rule, such as that at issue in the main proceedings, which restricts the judicial review of arbitral decisions issued by an arbitration committee responsible at first instance for the review of decisions taken by contracting authorities in public procurement procedures to examine only the pleas raised before that committee.

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(1)  OJ C 269, 14.8.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/12 |
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1.10.2018

EN

Official Journal of the European Union

C 352/12

---

Judgment of the Court (Eighth Chamber) of 7 August 2018 (request for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Gerhard Prenninger and Others v Oberösterreichische Landesregierung

(Case C-329/17) (1)

((Reference for a preliminary ruling - Environment - Directive 2011/92/EU - Assessment of the effects of certain projects on the environment - Annex II - Point 1(d) - Concept of ‘deforestation for the purposes of conversion to another type of land use’ - Clearance of a path in a forest in connection with the construction and operation of an overhead electrical power line))

(2018/C 352/15)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicants: Gerhard Prenninger, Karl Helmberger, Franziska Zimmer, Franz Scharinger, Norbert Pühringer, Agrargemeinschaft Pettenbach, Marktgemeinde Vorchdorf, Marktgemeinde Pettenbach, Gemeinde Steinbach am Ziehberg

Defendant: Oberösterreichische Landesregierung

intervener: Netz Oberösterreich GmbH

Operative part of the judgment

Point 1(d) of Annex II to Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment must be interpreted as meaning that the clearance of a path in a forest for the purpose of the construction and operation of an overhead electrical power line, such as that at issue in the main proceedings, and for the duration of its lawful existence is covered by the concept of ‘deforestation for the purposes of conversion to another type of land use’ within the meaning of that provision.

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(1)  OJ C 318, 25.9.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/12 |
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1.10.2018

EN

Official Journal of the European Union

C 352/12

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Judgment of the Court (Third Chamber) of 7 August 2018 (request for a preliminary ruling from the Tartu Halduskohus — Estonia) — Argo Kalda Mardi talu v Põllumajanduse Registrite ja Informatsiooni Amet (PRIA)

(Case C-435/17) (1)

((Reference for a preliminary ruling - Common agricultural policy - Direct payments - Regulation (EU) No 1306/2013 - Articles 93 and 94 - Annex II - Cross-compliance - Agricultural and environmental conditions - Minimum requirements - Implementation by a Member State - Obligation to conserve ‘burial grounds’ - Scope))

(2018/C 352/16)

Language of the case: Estonian

Referring court

Tartu Halduskohus

Parties to the main proceedings

Applicant: Argo Kalda Mardi talu

Defendant: Põllumajanduse Registrite ja Informatsiooni Amet (PRIA)

Operative part of the judgment

| 1) | Article 93(1), Article 94 and Annex II to Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 must be interpreted as not precluding a Member State from requiring, as a standard for good agricultural and environmental conditions referred to in that Annex II, the preservation, on an agricultural area, of cairns marked by stones, the removal of which breaches such a requirement and, consequently, the reduction of payments owed to the farmer concerned. |
| --- | --- |

1)

Article 93(1), Article 94 and Annex II to Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 must be interpreted as not precluding a Member State from requiring, as a standard for good agricultural and environmental conditions referred to in that Annex II, the preservation, on an agricultural area, of cairns marked by stones, the removal of which breaches such a requirement and, consequently, the reduction of payments owed to the farmer concerned.

| 2) | Article 72(1)(a), Article 91(1) and (2), Article 93(1) and Article 94 of Regulation No 1306/2013 and Article 4(1)(b), (c) and (e) of Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 must be interpreted as meaning that the requirements relating to good agricultural and environmental conditions, provided for by Regulation No 1306/2013 must be complied with on the whole of the agricultural holding and not solely on the agricultural area in respect of which the payment is specifically requested. |
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2)

Article 72(1)(a), Article 91(1) and (2), Article 93(1) and Article 94 of Regulation No 1306/2013 and Article 4(1)(b), (c) and (e) of Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 must be interpreted as meaning that the requirements relating to good agricultural and environmental conditions, provided for by Regulation No 1306/2013 must be complied with on the whole of the agricultural holding and not solely on the agricultural area in respect of which the payment is specifically requested.

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(1)  OJ C 338, 9.10.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/13 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/13

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Judgment of the Court (Seventh Chamber) of 7 August 2018 (request for a preliminary ruling from the Riigikohus — Estonia) — Viking Motors AS and Others v Tallinna linn, Maksu- ja Tolliamet

(Case C-475/17) (1)

((Reference for a preliminary ruling - Taxation - Common system of value added tax (VAT) - Directive 2006/112/EC - Article 401 - Domestic taxes which can be characterised as turnover taxes - Prohibition - Concept of ‘turnover tax’ - Local sales tax - Essential characteristics of VAT - None))

(2018/C 352/17)

Language of the case: Estonian

Referring court

Riigikohus

Parties to the main proceedings

Applicants: Viking Motors AS, TKM Beauty Eesti OÜ, TKM King AS, Kaubamaja AS, Selver AS

Defendants: Tallinna linn, Maksu- ja Tolliamet

Operative part of the judgment

Article 401 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted to the effect that it does not preclude the maintenance or introduction of a tax such as the sales tax at issue in the main proceedings.

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(1)  OJ C 347, 16.10.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/14 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/14

---

Judgment of the Court (Eighth Chamber) of 7 August 2018 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Verbraucherzentrale Berlin eV v Unimatic Vertriebs GmbH

(Case C-485/17) (1)

((Reference for a preliminary ruling - Consumer protection - Directive 2011/83/EU - Article 2(9) - Concept of ‘business premises’ - Criteria - Sales contract concluded on a stand run by a trader at a trade fair))

(2018/C 352/18)

Language of the case: Germany

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Verbraucherzentrale Berlin eV

Defendant: Unimatic Vertriebs GmbH

Operative part of the judgment

Article 2(9) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, must be interpreted as meaning that a stand, such as that at issue in the main proceedings, run by a trader at a trade fair, at which he carries out his activity for a few days each year, constitutes ‘business premises’ within the meaning of that provision if, in the light of all the factual circumstances surrounding that activity, in particular the appearance of the stand and the information relayed on the premises of the fair itself, a reasonably well-informed and reasonably observant and circumspect consumer could reasonably assume that the trader is carrying out his activity there and will solicit him in order to conclude a contract, which is for the national court to ascertain.

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(1)  OJ C 392, 20.11.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/15 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/15

---

Judgment of the Court (Third Chamber) of 7 August 2018 (request for a preliminary ruling from the Tallinna Ringkonnakohus — Estonia) — Coöperatieve Vereniging SNB-REACT U.A. v Deepak Mehta

(Case C-521/17) (1)

((Reference for a preliminary ruling - Intellectual and industrial property - Directive 2004/48/EC - Article 4 - Legal standing of a body for the collective representation of trade mark proprietors - Directive 2000/31/EC - Articles 12 to 14 - Liability of a provider of IP address rental and registration services allowing the anonymous use of domain names and websites))

(2018/C 352/19)

Language of the case: Estonian

Referring court

Tallinna Ringkonnakohus

Parties to the main proceedings

Applicant: Coöperatieve Vereniging SNB-REACT U.A.

Defendant: Deepak Mehta

Operative part of the judgment

| 1. | Article 4(c) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as meaning that the Member States are required to recognise a body collectively representing trade mark proprietors, such as that at issue in the case in the main proceedings, as a person entitled to seek, in its own name, the application of the remedies laid down by that directive, for the purpose of defending the rights of those trade mark proprietors, and to bring legal proceedings, in its own name, for the purpose of enforcing those rights, on condition that that body is regarded by national law as having a direct interest in the defence of such rights and that that law allows it to bring legal proceedings to that end, these being matters for the referring court to verify. |
| --- | --- |

1.

Article 4(c) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as meaning that the Member States are required to recognise a body collectively representing trade mark proprietors, such as that at issue in the case in the main proceedings, as a person entitled to seek, in its own name, the application of the remedies laid down by that directive, for the purpose of defending the rights of those trade mark proprietors, and to bring legal proceedings, in its own name, for the purpose of enforcing those rights, on condition that that body is regarded by national law as having a direct interest in the defence of such rights and that that law allows it to bring legal proceedings to that end, these being matters for the referring court to verify.

| 2. | Articles 12 to 14 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as meaning that the limitations of liability for which they provide apply to the provider of an IP address rental and registration service allowing the anonymous use of internet domain names, such as that at issue in the case in the main proceedings, inasmuch as that service comes within the scope of one of the categories of service referred to in those articles and meets all the corresponding conditions, in so far as the activity of such a service provider is of a merely technical, automatic and passive nature, implying that he has neither knowledge of nor control over the information transmitted or cached by his customers, and in so far as he does not play an active role in allowing those customers to optimise their online sales activity, these being matters for the referring court to verify. |
| --- | --- |

2.

Articles 12 to 14 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as meaning that the limitations of liability for which they provide apply to the provider of an IP address rental and registration service allowing the anonymous use of internet domain names, such as that at issue in the case in the main proceedings, inasmuch as that service comes within the scope of one of the categories of service referred to in those articles and meets all the corresponding conditions, in so far as the activity of such a service provider is of a merely technical, automatic and passive nature, implying that he has neither knowledge of nor control over the information transmitted or cached by his customers, and in so far as he does not play an active role in allowing those customers to optimise their online sales activity, these being matters for the referring court to verify.

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(1)  OJ C 382, 13.11.2017.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/15 |
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1.10.2018

EN

Official Journal of the European Union

C 352/15

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Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 15 June 2018 — Gennaro Cafaro v DQ

(Case C-396/18)

(2018/C 352/20)

Language of the case: Italian

Referring court

Corte suprema di cassazione

Parties to the main proceedings

Appellant: Gennaro Cafaro

Cross-appellant: DQ

Questions referred

| 1. | Is the national legislation set out in the Prime Ministerial Decree of 9 September 2008, in implementation of the third paragraph of Article 748 of the Navigation Code, which regulates the limitations on employment for DQ aircrew and in particular provides for the automatic termination of the employment relationship once a pilot reaches the age of 60, contrary to Regulation No 1178/2011 (1) in so far as that regulation sets 65 years as the age limit for employing pilots in commercial air transport, and would that regulation, if the special national legislation were to be disapplied, be applicable to the present case? |
| --- | --- |

1.

Is the national legislation set out in the Prime Ministerial Decree of 9 September 2008, in implementation of the third paragraph of Article 748 of the Navigation Code, which regulates the limitations on employment for DQ aircrew and in particular provides for the automatic termination of the employment relationship once a pilot reaches the age of 60, contrary to Regulation No 1178/2011 (1) in so far as that regulation sets 65 years as the age limit for employing pilots in commercial air transport, and would that regulation, if the special national legislation were to be disapplied, be applicable to the present case?

| 2. | In the alternative, if that regulation is held not to be applicable ratione materiae to the present case, is the aforementioned national legislation contrary to the principle of non-discrimination on the ground of age laid down in Directive 2000/78 (2) and in Article 21(1) of the Charter of Fundamental Rights of the European Union, to which Directive 2000/78 gives practical expression? |
| --- | --- |

2.

In the alternative, if that regulation is held not to be applicable ratione materiae to the present case, is the aforementioned national legislation contrary to the principle of non-discrimination on the ground of age laid down in Directive 2000/78 (2) and in Article 21(1) of the Charter of Fundamental Rights of the European Union, to which Directive 2000/78 gives practical expression?

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(1)  Commission Regulation (EU) No 1178/2011 of 3 November 2011 laying down technical requirements and administrative procedures related to civil aviation aircrew pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council (OJ 2011 L 311, p. 1).

(2)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/16 |
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1.10.2018

EN

Official Journal of the European Union

C 352/16

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Request for a preliminary ruling from the Vilniaus apygardos administracinis teismas (Lithuania) lodged on 26 June 2018 — AW, BV, CU, DT v Republic of Lithuania, represented by Lietuvos Respublikos ryšių reguliavimo tarnyba, Bendrasis pagalbos centras and Lietuvos Respublikos vidaus reikalų ministerija

(Case C-417/18)

(2018/C 352/21)

Language of the case: Lithuanian

Referring court

Vilniaus apygardos administracinis teismas

Parties to the main proceedings

Applicants: AW, BV, CU, DT

Defendant: Republic of Lithuania, represented by Lietuvos Respublikos ryšių reguliavimo tarnyba, Bendrasis pagalbos centras and Lietuvos Respublikos vidaus reikalų ministerija

Questions referred

| 1. | Does Article 26(5) of Directive 2002/22/EC, (1) as amended by Directive 2009/136/EC, (2) regulate the mandatory provision of location information where calls are made from mobile devices without SIM cards? |
| --- | --- |

1.

Does Article 26(5) of Directive 2002/22/EC, (1) as amended by Directive 2009/136/EC, (2) regulate the mandatory provision of location information where calls are made from mobile devices without SIM cards?

| 2. | Where a Member State’s national legislation allows individuals to make calls to the European emergency call number ‘112’ without a SIM card, does that fact mean that location information for such emergency calls has to be established under Article 26(5) of Directive 2002/22/EC, as amended by Directive 2009/136/EC? |
| --- | --- |

2.

Where a Member State’s national legislation allows individuals to make calls to the European emergency call number ‘112’ without a SIM card, does that fact mean that location information for such emergency calls has to be established under Article 26(5) of Directive 2002/22/EC, as amended by Directive 2009/136/EC?

| 3. | Is the national legislation laid down in point 4.5.4 of the Procedure for access of subscribers and/or users to services of authorities providing emergency services (version in force from 11 November 2011 to 15 April 2016), which inter alia provides that public mobile network providers are to supply location information with an accuracy of base station (sector) coverage (Cell-ID), but which does not specify the minimum accuracy (in terms of distance) with which base stations must establish the caller’s location or the density (in terms of distance) at which base stations must be distributed, compatible with Article 26(5) of Directive 2002/22/EC, as amended by Directive 2009/136/EC, which provides that competent regulatory authorities are to lay down criteria for the accuracy and reliability of the caller location information provided? |
| --- | --- |

3.

Is the national legislation laid down in point 4.5.4 of the Procedure for access of subscribers and/or users to services of authorities providing emergency services (version in force from 11 November 2011 to 15 April 2016), which inter alia provides that public mobile network providers are to supply location information with an accuracy of base station (sector) coverage (Cell-ID), but which does not specify the minimum accuracy (in terms of distance) with which base stations must establish the caller’s location or the density (in terms of distance) at which base stations must be distributed, compatible with Article 26(5) of Directive 2002/22/EC, as amended by Directive 2009/136/EC, which provides that competent regulatory authorities are to lay down criteria for the accuracy and reliability of the caller location information provided?

| 4. | If the answers to the first question and/or second question are such that a Member State has to ensure that location information is established under Article 26(5) of Directive 2002/22/EC, as amended by Directive 2009/136/EC, and/or the answer to the third question is such that the national legislation is incompatible with Article 26(5) of Directive 2002/22/EC, as amended by Directive 2009/136/EC, which provides that competent regulatory authorities are to lay down criteria for the accuracy and reliability of the caller location information provided, is a national court required, when deciding on the issue of compensation for damage, to establish a direct causal link between the breach of EU law and the damage sustained by the individuals, or is it sufficient to establish an indirect causal link between the breach of EU law and the damage sustained by the individuals, where, under provisions of national law and/or national case-law, the establishment of an indirect causal link between the unlawful actions and the damage sustained by the individuals is sufficient to give rise to liability? |
| --- | --- |

4.

If the answers to the first question and/or second question are such that a Member State has to ensure that location information is established under Article 26(5) of Directive 2002/22/EC, as amended by Directive 2009/136/EC, and/or the answer to the third question is such that the national legislation is incompatible with Article 26(5) of Directive 2002/22/EC, as amended by Directive 2009/136/EC, which provides that competent regulatory authorities are to lay down criteria for the accuracy and reliability of the caller location information provided, is a national court required, when deciding on the issue of compensation for damage, to establish a direct causal link between the breach of EU law and the damage sustained by the individuals, or is it sufficient to establish an indirect causal link between the breach of EU law and the damage sustained by the individuals, where, under provisions of national law and/or national case-law, the establishment of an indirect causal link between the unlawful actions and the damage sustained by the individuals is sufficient to give rise to liability?

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(1)  Directive of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51).

(2)  Directive of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (OJ 2009 L 337, p. 11).

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/17 |
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1.10.2018

EN

Official Journal of the European Union

C 352/17

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Action brought on 29 June 2018 — European Commission v Kingdom of Spain

(Case C-430/18)

(2018/C 352/22)

Language of the case: Spanish

Parties

Applicant: European Commission (represented by: T. Scharf, J. Rius, G. von Rintelen, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

The applicant claims that the Court of Justice should:

| — | Declare that, by failing to adopt, by 18 September 2016, all of the laws, regulations and administrative provisions necessary to comply with Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features (1), or in any case, by failing to notify those measures to the Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 29(1) of that directive; |
| --- | --- |

—

Declare that, by failing to adopt, by 18 September 2016, all of the laws, regulations and administrative provisions necessary to comply with Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features (1), or in any case, by failing to notify those measures to the Commission, the Kingdom of Spain has failed to fulfil its obligations under Article 29(1) of that directive;

| — | Impose on the Kingdom of Spain, in accordance with Article 260(3) TFEU, a daily penalty payment of EUR 48 919,20, with effect from the date of delivery of the judgment declaring the failure to fulfil the obligation to adopt or, in any case, to notify to the Commission, the measures necessary to comply with Directive 2014/92/EU; |
| --- | --- |

—

Impose on the Kingdom of Spain, in accordance with Article 260(3) TFEU, a daily penalty payment of EUR 48 919,20, with effect from the date of delivery of the judgment declaring the failure to fulfil the obligation to adopt or, in any case, to notify to the Commission, the measures necessary to comply with Directive 2014/92/EU;

| — | Order the Kingdom of Spain to pay the costs. |
| --- | --- |

—

Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

In accordance with Article 29(1) of Directive 2014/92/EU, the Member States were required to adopt and publish, by 18 September 2016 at the latest, the laws, regulations and administrative provisions necessary to comply with that directive, and notify those measures to the Commission.

Given that the Kingdom of Spain has failed to transpose Directive 2014/92/EU in full and notify the transposition measures to the Commission, the Commission decided to bring the present action before the Court of Justice.

The Commission suggests that a daily penalty payment of EUR 48 919,20 be imposed on the Kingdom of Spain, with effect from the date of delivery of the judgment, calculated on the basis of the seriousness and duration of the infringement and the dissuasive effect with regard to that Member State’s ability to play.

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(1)  OJ 2014 L 257, p. 214

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/18 |
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Official Journal of the European Union

C 352/18

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Request for a preliminary ruling from the Korkein oikeus (Finland) lodged on 2 July 2018 — ML v OÜ Aktiva Finants

(Case C-433/18)

(2018/C 352/23)

Language of the case: Finnish

Referring court

Korkein oikeus

Parties to the main proceedings

Applicant: ML

Defendant: OÜ Aktiva Finants

Questions referred

| 1. | Is the procedure for granting leave for further consideration which is part of the national system of appeals compatible with the effective rights of appeal that are guaranteed for both parties in Article 43(1) of Regulation No 44/2001 (1) where an appeal is lodged against the decision of a district court which relates to the recognition or enforcement of a judgment under Regulation No 44/2001? |
| --- | --- |

1.

Is the procedure for granting leave for further consideration which is part of the national system of appeals compatible with the effective rights of appeal that are guaranteed for both parties in Article 43(1) of Regulation No 44/2001 (1) where an appeal is lodged against the decision of a district court which relates to the recognition or enforcement of a judgment under Regulation No 44/2001?

| 2. | In the procedure for granting leave for further consideration, are the requirements in relation to a procedure in contradictory matters within the meaning of Article 43(3) of Regulation No 44/2001 satisfied if the respondent is not heard in relation to the appeal before the decision on leave is taken? Are they satisfied if the respondent is heard before the decision on leave for further consideration is taken? |
| --- | --- |

2.

In the procedure for granting leave for further consideration, are the requirements in relation to a procedure in contradictory matters within the meaning of Article 43(3) of Regulation No 44/2001 satisfied if the respondent is not heard in relation to the appeal before the decision on leave is taken? Are they satisfied if the respondent is heard before the decision on leave for further consideration is taken?

| 3. | Does the fact that the appellant may be not only the party who has applied for enforcement and whose application has been refused, but also the party against whom enforcement has been applied for when that application has been allowed, have any significance for the above interpretation? |
| --- | --- |

3.

Does the fact that the appellant may be not only the party who has applied for enforcement and whose application has been refused, but also the party against whom enforcement has been applied for when that application has been allowed, have any significance for the above interpretation?

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(1)  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/19 |
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1.10.2018

EN

Official Journal of the European Union

C 352/19

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Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 29 June 2018 — Otis Gesellschaft m.b.H. and Others v Land Oberösterreich and Others

(Case C-435/18)

(2018/C 352/24)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellants: Otis Gesellschaft m.b.H., Schindler Liegenschaftsverwaltung GmbH, Schindler Aufzüge und Fahrtreppen GmbH, Kone Aktiengesellschaft, ThyssenKrupp Aufzüge Gesellschaft m.b.H.

Respondents: Land Oberösterreich, Gemeinnützige Wohnungsgenossenschaft ‘Lebensräume’ eingetragene Gen.m.b.H., EBS Wohnungsgesellschaft mbH, WAG Wohnungsanlagen Gesellschaft m.b.H., WSG Gemeinnützige Wohn- und Siedlergemeinschaft reg. Gen.m.b.H., Neue Heimat Oberösterreich Gemeinnützige Wohnungs- und SiedlungsgesmbH, BRW Gemeinnützige Wohnungs- und Siedlungsgenossenschaft ‘Baureform Wohnstätte’ eingetragene Gen.m.b.H., Gemeinnützige Wohnungs- und Siedlungsgenossenschaft ‘Familie’ eingetragene Gen.m.b.H., VLW Vereinigte Linzer Wohnungsgenossenschaften Gemeinnützige GmbH, Gemeinnützige Steyrer Wohn- und Siedlungs Genossenschaft ‘Styria’ reg.Gen.m.b.H., Innviertler Gemeinnützige Wohnungs- und Siedlungsgenossenschaft reg.Gen.m.b.H., Gemeinnützige Wohnungsgesellschaft der Stadt Steyr GmbH, Gemeinnützige Industrie-Wohnungsaktiengesellschaft, Gemeinnützige Siedlungsgesellschaft m.b.H. für den Bezirk Vöcklabruck, GEWOG Neues Heim Gemeinnützige Wohnungsgesellschaft m.b.H.

Question referred

Are Article 85 TEC, Article 81 EC and Article 101 TFEU to be interpreted as meaning that, in order to maintain the full effectiveness of those provisions and the practical effectiveness of the prohibition resulting from those provisions, it is necessary that compensation for losses may also be claimed from members of a cartel by persons who are not active as suppliers or customers on the relevant product and geographic market affected by a cartel, but who grant loans to buyers of the products offered on the market affected by the cartel under preferential terms as funding bodies within the scope of statutory provisions, and whose loss lies in the fact that the loan amount granted as a percentage of the product costs was higher than what it would have been without the cartel agreement, which means that they were unable profitably to invest those amounts?

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/19 |
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1.10.2018

EN

Official Journal of the European Union

C 352/19

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Request for a preliminary ruling from the Förvaltningsrätten i Linköping (Sweden) lodged on 12 July 2018 — Baltic Cable AB v Energimarknadsinspektionen

(Case C-454/18)

(2018/C 352/25)

Language of the case: Swedish

Referring court

Förvaltningsrätten i Linköping

Parties to the main proceedings

Applicant: Baltic Cable AB

Defendant: Energimarknadsinspektionen

Questions referred

| 1. | Is Article 16(6) of the Electricity Regulation (1) to apply in all cases where a person obtains revenues resulting from the allocation of interconnection, regardless of his circumstances, or is it to apply only where the person who receives the revenues is a transmission system operator, as defined in Article 2(4) of the Electricity Market Directive? |
| --- | --- |

1.

Is Article 16(6) of the Electricity Regulation (1) to apply in all cases where a person obtains revenues resulting from the allocation of interconnection, regardless of his circumstances, or is it to apply only where the person who receives the revenues is a transmission system operator, as defined in Article 2(4) of the Electricity Market Directive?

| 2. | If the answer to Question 1 is that Article 16(6) of the Electricity Regulation is to apply only to transmission system operators, is an undertaking which merely operates an interconnector a transmission system operator? |
| --- | --- |

2.

If the answer to Question 1 is that Article 16(6) of the Electricity Regulation is to apply only to transmission system operators, is an undertaking which merely operates an interconnector a transmission system operator?

| 3. | If the answer to Question 1 or 2 means that Article 16(6) of the Electricity Regulation is to apply to an undertaking which merely operates an interconnector, can the costs relating to the operation and maintenance of an interconnector in any event be regarded as network investments to maintain or increase transmission capacities, as referred to in point (b) of first subparagraph of Article 16(6)? |
| --- | --- |

3.

If the answer to Question 1 or 2 means that Article 16(6) of the Electricity Regulation is to apply to an undertaking which merely operates an interconnector, can the costs relating to the operation and maintenance of an interconnector in any event be regarded as network investments to maintain or increase transmission capacities, as referred to in point (b) of first subparagraph of Article 16(6)?

| 4. | If the answer to Question 1 or 2 means that Article 16(6) of the Electricity Regulation is to apply to an undertaking which merely operates an interconnector, can the regulatory authority, pursuant to the second subparagraph of Article 16(6) of the Electricity Regulation, approve that an undertaking which merely operates an interconnector, which has a methodology for fixing tariffs but does not have customers making direct payments with network charges (tariffs) which can be reduced, may use revenues from the allocation of interconnection to make [Or.22] a return or, if the answer to Question 3 is in the negative, to operate and maintain? |
| --- | --- |

4.

If the answer to Question 1 or 2 means that Article 16(6) of the Electricity Regulation is to apply to an undertaking which merely operates an interconnector, can the regulatory authority, pursuant to the second subparagraph of Article 16(6) of the Electricity Regulation, approve that an undertaking which merely operates an interconnector, which has a methodology for fixing tariffs but does not have customers making direct payments with network charges (tariffs) which can be reduced, may use revenues from the allocation of interconnection to make [Or.22] a return or, if the answer to Question 3 is in the negative, to operate and maintain?

| 5. | If the answer to Question 1 or 2 means that Article 16(6) of the Electricity Regulation is to apply to an undertaking which merely operates an interconnector, and the answer to Question 3 and 4 means either that the company may not use revenues resulting from the allocation of interconnection to operate or maintain or to make a return, or that the undertaking may use the revenues to operate or maintain, but not to make a return, is application of Article 16(6) of the Electricity Regulation to an undertaking which merely operates an interconnector contrary to the EU-law principle of proportionality or any other applicable principle? |
| --- | --- |

5.

If the answer to Question 1 or 2 means that Article 16(6) of the Electricity Regulation is to apply to an undertaking which merely operates an interconnector, and the answer to Question 3 and 4 means either that the company may not use revenues resulting from the allocation of interconnection to operate or maintain or to make a return, or that the undertaking may use the revenues to operate or maintain, but not to make a return, is application of Article 16(6) of the Electricity Regulation to an undertaking which merely operates an interconnector contrary to the EU-law principle of proportionality or any other applicable principle?

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(1)  Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity, and repealing Regulation (EC) No 1228/2003 (OJ 2009, L 211 p. 15).

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/20 |
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1.10.2018

EN

Official Journal of the European Union

C 352/20

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Request for a preliminary ruling from the Rayonen Sad Lukovit (Bulgaria) lodged on 17 July 2018 — criminal proceedings against EP

(Case C-467/18)

(2018/C 352/26)

Language of the case: Bulgarian

Referring court

Rayonen Sad Lukovit

Parties to the main proceedings

Proceedings instituted at the request of: Rayonna prokuratura Lom

Other party to the proceedings: EP

Questions referred

| 1. | Do the present proceedings for an order for the adoption of compulsory medical measures constituting a form of State compulsion in relation to persons who, according to the findings of the Public Prosecutor’s Office, have committed an act representing a danger to the general public, fall within the scope of Directive 2012/13/EU (1) on the right to information in criminal proceedings and Directive 2013/48/EU (2) on the right of access to a lawyer in criminal proceedings? |
| --- | --- |

1.

Do the present proceedings for an order for the adoption of compulsory medical measures constituting a form of State compulsion in relation to persons who, according to the findings of the Public Prosecutor’s Office, have committed an act representing a danger to the general public, fall within the scope of Directive 2012/13/EU (1) on the right to information in criminal proceedings and Directive 2013/48/EU (2) on the right of access to a lawyer in criminal proceedings?

| 2. | Do the Bulgarian procedural provisions governing the special procedure for an order for the adoption of compulsory medical measures provided for in Article 427 et seq. of the NPK (Nakazatelno-protsesualen kodeks, Bulgarian Code of Criminal Procedure), under which the court is not empowered to refer the proceedings back to the Public Prosecutor’s Office with the instruction to rectify the procedural errors committed in the course of the pre-trial procedure, but can either grant the application for an order for the adoption of compulsory medical measures or reject it, constitute an effective remedy, within the meaning of Article 12 of Directive 2013/48/EU and Article 8 of Directive 2012/13/EU in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, which confers on persons the right to challenge before a court any infringements of their rights which may have been committed in the course of the pre-trial procedure? |
| --- | --- |

2.

Do the Bulgarian procedural provisions governing the special procedure for an order for the adoption of compulsory medical measures provided for in Article 427 et seq. of the NPK (Nakazatelno-protsesualen kodeks, Bulgarian Code of Criminal Procedure), under which the court is not empowered to refer the proceedings back to the Public Prosecutor’s Office with the instruction to rectify the procedural errors committed in the course of the pre-trial procedure, but can either grant the application for an order for the adoption of compulsory medical measures or reject it, constitute an effective remedy, within the meaning of Article 12 of Directive 2013/48/EU and Article 8 of Directive 2012/13/EU in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, which confers on persons the right to challenge before a court any infringements of their rights which may have been committed in the course of the pre-trial procedure?

| 3. | Are Directive 2012/13/EU and Directive 2013/48/EU applicable to (pre-trial) criminal proceedings in the case where the national law, that is to say the Nakazatelno-protsesualen kodeks, does not recognise the legal concept of ‘suspect’ and the Public Prosecutor’s Office does not formally regard the person in question as a defendant during the pre-trial procedure, since, on the assumption that the intentional, unlawful homicide forming the subject of the investigations was committed by that person in the absence of criminal responsibility, it closes the criminal proceedings without informing the person concerned and applies to the court for an order for the adoption of compulsory medical measures against that person? |
| --- | --- |

3.

Are Directive 2012/13/EU and Directive 2013/48/EU applicable to (pre-trial) criminal proceedings in the case where the national law, that is to say the Nakazatelno-protsesualen kodeks, does not recognise the legal concept of ‘suspect’ and the Public Prosecutor’s Office does not formally regard the person in question as a defendant during the pre-trial procedure, since, on the assumption that the intentional, unlawful homicide forming the subject of the investigations was committed by that person in the absence of criminal responsibility, it closes the criminal proceedings without informing the person concerned and applies to the court for an order for the adoption of compulsory medical measures against that person?

| 4. | Is a person in relation to whom compulsory treatment has been applied for to be regarded as being ‘suspected’ within the meaning of Article 2(1) of Directive 2012/13/EU and Article 2(3) of Directive 2013/48/EU in the case where, in the course of the first inspection of the crime scene and the initial investigative measures at the home of the victim and her son, a police officer, after identifying traces of blood on the son’s body, questioned him about his reasons for killing his mother and taking her body out into the street and, after the son had answered those questions, handcuffed him. If so, must the person in question be provided with information pursuant to Article 3(1) in conjunction with (2) of Directive 2012/13/EU even at that stage, and how are the particular needs of that person to be taken into account, pursuant to paragraph 2, when information is provided to him in such circumstances, that is to say where the police officer was aware that the person in question suffered from a mental disorder? |
| --- | --- |

4.

Is a person in relation to whom compulsory treatment has been applied for to be regarded as being ‘suspected’ within the meaning of Article 2(1) of Directive 2012/13/EU and Article 2(3) of Directive 2013/48/EU in the case where, in the course of the first inspection of the crime scene and the initial investigative measures at the home of the victim and her son, a police officer, after identifying traces of blood on the son’s body, questioned him about his reasons for killing his mother and taking her body out into the street and, after the son had answered those questions, handcuffed him. If so, must the person in question be provided with information pursuant to Article 3(1) in conjunction with (2) of Directive 2012/13/EU even at that stage, and how are the particular needs of that person to be taken into account, pursuant to paragraph 2, when information is provided to him in such circumstances, that is to say where the police officer was aware that the person in question suffered from a mental disorder?

| 5. | Are national rules such as those at issue, which effectively allow a person to be deprived of his liberty by being committed to a psychiatric hospital under a procedure provided for in the Zakon za zdraveto (Health Law) (a precautionary compulsory measure ordered where there is evidence that the person concerned suffers from a mental illness and is at risk of committing a criminal offence, but not where an offence has already been committed), compatible with Article 3 of Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence, in the case where the real reason for initiating the procedure is the offence on account of which criminal proceedings have been brought against the person committed for treatment, and does this circumvent the right, on arrest, to a fair trial which must satisfy the conditions laid down in Article 5(4) of the ECHR, that is to say a trial in which the court is empowered to review not only compliance with the rules of procedure but also the suspicion justifying the arrest and the lawfulness of the objective pursued by that measure, the court being obliged to carry out such a review in the case where the person in question was arrested under the procedure laid down in the Nakazatelno-protsesualen kodeks? |
| --- | --- |

5.

Are national rules such as those at issue, which effectively allow a person to be deprived of his liberty by being committed to a psychiatric hospital under a procedure provided for in the Zakon za zdraveto (Health Law) (a precautionary compulsory measure ordered where there is evidence that the person concerned suffers from a mental illness and is at risk of committing a criminal offence, but not where an offence has already been committed), compatible with Article 3 of Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence, in the case where the real reason for initiating the procedure is the offence on account of which criminal proceedings have been brought against the person committed for treatment, and does this circumvent the right, on arrest, to a fair trial which must satisfy the conditions laid down in Article 5(4) of the ECHR, that is to say a trial in which the court is empowered to review not only compliance with the rules of procedure but also the suspicion justifying the arrest and the lawfulness of the objective pursued by that measure, the court being obliged to carry out such a review in the case where the person in question was arrested under the procedure laid down in the Nakazatelno-protsesualen kodeks?

| 6. | Does the concept of the presumption of innocence in Article 3 of Directive (EU) 2016/343 also include the presumption that persons lacking criminal responsibility did not commit the offence representing a danger to the general public of which they are accused by the Public Prosecutor’s Office, until such time as proof to the contrary is established in accordance with the rules of procedure (in criminal proceedings, with due regard for the rights of the defence)? |
| --- | --- |

6.

Does the concept of the presumption of innocence in Article 3 of Directive (EU) 2016/343 also include the presumption that persons lacking criminal responsibility did not commit the offence representing a danger to the general public of which they are accused by the Public Prosecutor’s Office, until such time as proof to the contrary is established in accordance with the rules of procedure (in criminal proceedings, with due regard for the rights of the defence)?

| 7. | Do national rules which confer on the adjudicating court different powers in relation to the examination as to the lawfulness of the pre-trial procedure which it must carry out ex officio, depending on whether:






  1) | the court examines an indictment from the Public Prosecutor’s Office in which the latter maintains that a particular mentally-healthy person has committed intentional, unlawful homicide (Article 249(1) in conjunction with (2) of the NPK), or |
| --- | --- | --- |

7.

Do national rules which confer on the adjudicating court different powers in relation to the examination as to the lawfulness of the pre-trial procedure which it must carry out ex officio, depending on whether:

1)

the court examines an indictment from the Public Prosecutor’s Office in which the latter maintains that a particular mentally-healthy person has committed intentional, unlawful homicide (Article 249(1) in conjunction with (2) of the NPK), or

| 2) | the court examines an application from the Public Prosecutor’s Office in which the latter maintains that the person concerned has committed intentional, unlawful homicide but that act does not constitute a criminal offence because the perpetrator suffers from a mental disorder, and by which it seeks a court order for the imposition by the State of compulsory treatment,
  afford vulnerable persons an effective remedy as stipulated in Article 13 in conjunction with Article 12 of Directive 2013/48/EU and Article 8(2) in conjunction with Article 3(2) of Directive 2012/13/EU, and are the different powers available to the court depending on the nature of the procedure, the latter being itself dictated by whether the mental health of the person identified as the perpetrator is such as to render him criminally responsible, compatible with the principle of non-discrimination laid down in Article 21(1) of the Charter? |
| --- | --- |

2)

the court examines an application from the Public Prosecutor’s Office in which the latter maintains that the person concerned has committed intentional, unlawful homicide but that act does not constitute a criminal offence because the perpetrator suffers from a mental disorder, and by which it seeks a court order for the imposition by the State of compulsory treatment,

afford vulnerable persons an effective remedy as stipulated in Article 13 in conjunction with Article 12 of Directive 2013/48/EU and Article 8(2) in conjunction with Article 3(2) of Directive 2012/13/EU, and are the different powers available to the court depending on the nature of the procedure, the latter being itself dictated by whether the mental health of the person identified as the perpetrator is such as to render him criminally responsible, compatible with the principle of non-discrimination laid down in Article 21(1) of the Charter?

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(1)  Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1).

(2)  Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 294, p. 1).

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/22 |
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1.10.2018

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Official Journal of the European Union

C 352/22

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Request for a preliminary ruling from the Pesti Központi Kerületi Bíróság (Hungary) lodged on 23 July 2018 — PannonHitel Pénzügyi Zrt. v WizzAir Hungary Légiközlekedési Kft.

(Case C-476/18)

(2018/C 352/27)

Language of the case: Hungarian

Referring court

Pesti Központi Kerületi Bíróság

Parties to the main proceedings

Applicant: PannonHitel Pénzügyi Zrt.

Defendant: WizzAir Hungary Légiközlekedési Kft.

Questions referred

| 1. | Must Articles 5 to 7 of Regulation (EC) No 261/2004 (1) of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (‘the Regulation’) be interpreted as meaning that passengers whose flights are rescheduled may be treated in the same way as passengers whose flights are cancelled, for the purposes of the application of the right to compensation, and that they may therefore rely on the right to compensation laid down in Article 7 of the Regulation where the air carrier informs passengers of the rescheduling the day before the originally scheduled departure date and, as a consequence of the change, passengers suffer a loss of time equal to or in excess of three hours compared with the originally scheduled arrival time, that is, they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier? |
| --- | --- |

1.

Must Articles 5 to 7 of Regulation (EC) No 261/2004 (1) of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (‘the Regulation’) be interpreted as meaning that passengers whose flights are rescheduled may be treated in the same way as passengers whose flights are cancelled, for the purposes of the application of the right to compensation, and that they may therefore rely on the right to compensation laid down in Article 7 of the Regulation where the air carrier informs passengers of the rescheduling the day before the originally scheduled departure date and, as a consequence of the change, passengers suffer a loss of time equal to or in excess of three hours compared with the originally scheduled arrival time, that is, they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier?

| 2. | Must Articles 5 to 7 of the Regulation be interpreted as meaning that passengers whose flights are rescheduled may be treated in the same way as passengers affected by a delay for the purposes of the application of the right to compensation and that they may therefore rely on the right to compensation laid down in Article 7 of the Regulation where, as a consequence of the rescheduling, they suffer a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier? |
| --- | --- |

2.

Must Articles 5 to 7 of the Regulation be interpreted as meaning that passengers whose flights are rescheduled may be treated in the same way as passengers affected by a delay for the purposes of the application of the right to compensation and that they may therefore rely on the right to compensation laid down in Article 7 of the Regulation where, as a consequence of the rescheduling, they suffer a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier?

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(1)  OJ 2004 L 46, p. 1.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/23 |
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1.10.2018

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Official Journal of the European Union

C 352/23

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Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 24 July 2018 — Google Ireland Limited v Nemzeti Adó- és Vámhivatal Kiemelt Adó- és Vámigazgatósága

(Case C-482/18)

(2018/C 352/28)

Language of the case: Hungarian

Referring court

Fővárosi Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Applicant: Google Ireland Limited

Defendant: Nemzeti Adó- és Vámhivatal Kiemelt Adó- és Vámigazgatósága

Questions referred

| 1. | Should Articles 18 and 56 of the Treaty on the Functioning of the European Union (‘TFEU’) and the prohibition on discrimination be interpreted as precluding a Member State’s tax legislation in which the penalty provisions require, for breach of the obligation to register for the purposes of an advertisement tax, the imposition of a fine for failure to comply, the total amount of which, for companies not established in Hungary, can be 2 000 times greater than the amount of the fine for companies established in Hungary? |
| --- | --- |

1.

Should Articles 18 and 56 of the Treaty on the Functioning of the European Union (‘TFEU’) and the prohibition on discrimination be interpreted as precluding a Member State’s tax legislation in which the penalty provisions require, for breach of the obligation to register for the purposes of an advertisement tax, the imposition of a fine for failure to comply, the total amount of which, for companies not established in Hungary, can be 2 000 times greater than the amount of the fine for companies established in Hungary?

| 2. | Can the penalty described in the previous question, which involves a markedly large sum and is punitive in nature, be considered as capable of discouraging service providers who are not established in Hungary from providing services in that country? |
| --- | --- |

2.

Can the penalty described in the previous question, which involves a markedly large sum and is punitive in nature, be considered as capable of discouraging service providers who are not established in Hungary from providing services in that country?

| 3. | Should Article 56 TFEU and the prohibition on discrimination be interpreted as precluding legislation under which, for undertakings established in Hungary, the obligation to register is satisfied automatically, without making an explicit application, through the allocation of a Hungarian tax identification number as part of the process of registering with the Companies Registry, irrespective of whether or not the undertaking publishes advertisements, whereas for undertakings that are not established in Hungary but that publish advertisements in that country it is not satisfied automatically, and instead they have specifically to comply with the obligation to register, and can be subject to a specific penalty if they fail to do so? |
| --- | --- |

3.

Should Article 56 TFEU and the prohibition on discrimination be interpreted as precluding legislation under which, for undertakings established in Hungary, the obligation to register is satisfied automatically, without making an explicit application, through the allocation of a Hungarian tax identification number as part of the process of registering with the Companies Registry, irrespective of whether or not the undertaking publishes advertisements, whereas for undertakings that are not established in Hungary but that publish advertisements in that country it is not satisfied automatically, and instead they have specifically to comply with the obligation to register, and can be subject to a specific penalty if they fail to do so?

| 4. | If the answer to the first question is in the affirmative, should Article 56 TFEU and the prohibition on discrimination be interpreted as precluding a penalty such as the one at issue in the main proceedings, imposed for breach of the obligation to register for the purposes of an advertisement tax, in so far as the aforesaid legislation may be contrary to that article? |
| --- | --- |

4.

If the answer to the first question is in the affirmative, should Article 56 TFEU and the prohibition on discrimination be interpreted as precluding a penalty such as the one at issue in the main proceedings, imposed for breach of the obligation to register for the purposes of an advertisement tax, in so far as the aforesaid legislation may be contrary to that article?

| 5. | Should Article 56 TFEU and the prohibition on discrimination be interpreted as precluding a provision under which the decision to impose a fine on an undertaking established abroad is final and enforceable from the moment when notice of it is served, and the decision may be contested only through judicial proceedings in which the court may not hold a hearing and only documentary evidence is admissible, while fines imposed on undertakings established in Hungary may be contested in an administrative procedure and, moreover, the judicial proceedings are not restricted in any way? |
| --- | --- |

5.

Should Article 56 TFEU and the prohibition on discrimination be interpreted as precluding a provision under which the decision to impose a fine on an undertaking established abroad is final and enforceable from the moment when notice of it is served, and the decision may be contested only through judicial proceedings in which the court may not hold a hearing and only documentary evidence is admissible, while fines imposed on undertakings established in Hungary may be contested in an administrative procedure and, moreover, the judicial proceedings are not restricted in any way?

| 6. | In view of the right to good administration established in Article 41(1) of the Charter of Fundamental Rights (‘the Charter’), should Article 56 TFEU be interpreted as meaning that this obligation is not satisfied where the fine for failure to comply is imposed in the form of a daily fine, meaning that the amount of the fine is tripled while the service provider is still unaware of the earlier decision and is therefore unable to make good its omission before the imposition of the next fine? |
| --- | --- |

6.

In view of the right to good administration established in Article 41(1) of the Charter of Fundamental Rights (‘the Charter’), should Article 56 TFEU be interpreted as meaning that this obligation is not satisfied where the fine for failure to comply is imposed in the form of a daily fine, meaning that the amount of the fine is tripled while the service provider is still unaware of the earlier decision and is therefore unable to make good its omission before the imposition of the next fine?

| 7. | Should Article 56 TFEU, as read with the right to good administration in Article 41(1) of the Charter, the right to be heard in Article 41(2)(a) of the Charter, and the right to an effective remedy and to a fair trial in Article 47 of the Charter, be interpreted as meaning that these requirements are not satisfied where the decision cannot be contested in an administrative procedure and where, in the administrative court proceedings, only documentary evidence is admissible and the court cannot hold a hearing? |
| --- | --- |

7.

Should Article 56 TFEU, as read with the right to good administration in Article 41(1) of the Charter, the right to be heard in Article 41(2)(a) of the Charter, and the right to an effective remedy and to a fair trial in Article 47 of the Charter, be interpreted as meaning that these requirements are not satisfied where the decision cannot be contested in an administrative procedure and where, in the administrative court proceedings, only documentary evidence is admissible and the court cannot hold a hearing?

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/24 |
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1.10.2018

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Official Journal of the European Union

C 352/24

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Request for a preliminary ruling from the Cour de cassation (France) lodged on 20 July 2018 — Société de perception et de distribution des droits des artistes-interprètes de la musique and de la danse (SPEDIDAM), PG, GF v Institut national de l’audiovisuel

(Case C-484/18)

(2018/C 352/29)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Appellants: Société de perception et de distribution des droits des artistes-interprètes de la musique and de la danse (SPEDIDAM), PG, GF

Respondent: Institut national de l’audiovisuel

Other parties: Syndicat indépendant des artistes-interprètes (SIA-UNSA), Syndicat français des artistes-interprètes (CGT)

Question referred

Must Article 2(b), Article 3(2)(a) and Article 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (1) be interpreted as not precluding national rules, such as those laid down in Article 49 II of Law No 86-1067 of 30 September 1986 on freedom of communication, as amended by Article 44 of Law No 2006-961 of 1 August 2006, from establishing, for the benefit of the National Audiovisual Institute, the beneficiary of the exploitation rights of national broadcasting companies in the audiovisual archives, derogating provisions under which the terms on which performers’ works can be exploited and the remuneration for that exploitation are governed by agreements concluded between the performers themselves or the employee organisations representing performers and that institute, which must specify, inter alia, the scale of remuneration and the arrangements for payment of that remuneration?

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(1)  OJ 2001 L 167, p. 10.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/25 |
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1.10.2018

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Official Journal of the European Union

C 352/25

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Request for a preliminary ruling from the Conseil d’État (France) lodged on 24 July 2018 — Groupe Lactalis v Premier ministre, Ministre de l’Agriculture et de l’Alimentation, Garde des Sceaux, Ministre de la Justice, Ministre de l’Économie et des Finances

(Case C-485/18)

(2018/C 352/30)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Applicant: Groupe Lactalis

Defendants: Premier ministre, Ministre de l’Agriculture et de l’Alimentation, Garde des Sceaux, Ministre de la Justice, Ministre de l’Économie et des Finances

Questions referred

| 1. | Must Article 26 of Regulation No 1169/2011 of the European Parliament and of the Council of 25 October 2011, (1) which provides, inter alia, for the Commission to submit reports to the European Parliament and the Council regarding the mandatory indication of the country of origin or place of provenance for milk and milk used as an ingredient, be regarded as having specifically harmonised that matter within the meaning of Article 38(1) of that regulation and does it preclude Member States from adopting measures requiring additional mandatory particulars on the basis of Article 39 of that regulation? |
| --- | --- |

1.

Must Article 26 of Regulation No 1169/2011 of the European Parliament and of the Council of 25 October 2011, (1) which provides, inter alia, for the Commission to submit reports to the European Parliament and the Council regarding the mandatory indication of the country of origin or place of provenance for milk and milk used as an ingredient, be regarded as having specifically harmonised that matter within the meaning of Article 38(1) of that regulation and does it preclude Member States from adopting measures requiring additional mandatory particulars on the basis of Article 39 of that regulation?

| 2. | In the event that the national measures are justified on grounds of the protection of consumers in the light of Article 39(1), should the two criteria laid down in Article 39(2) concerning, first, the proven link between certain qualities of the food and its origin or provenance and, second, the evidence that the majority of consumers attach significant value to the provision of that information be read in combination, and, in particular, can the examination of the proven link be based solely on subjective elements relating to the value that the majority of consumers attach to the link between certain qualities of the food and its origin or provenance? |
| --- | --- |

2.

In the event that the national measures are justified on grounds of the protection of consumers in the light of Article 39(1), should the two criteria laid down in Article 39(2) concerning, first, the proven link between certain qualities of the food and its origin or provenance and, second, the evidence that the majority of consumers attach significant value to the provision of that information be read in combination, and, in particular, can the examination of the proven link be based solely on subjective elements relating to the value that the majority of consumers attach to the link between certain qualities of the food and its origin or provenance?

| 3. | To the extent to which the qualities of the food appear to include all the factors contributing to the quality of the food, can considerations relating to the resilience of the food to transportation and the risk of deterioration during journeys be taken into account when examining whether there is a proven link between certain qualities of the food and its origin or provenance for the purposes of the application of Article 39(2)? |
| --- | --- |

3.

To the extent to which the qualities of the food appear to include all the factors contributing to the quality of the food, can considerations relating to the resilience of the food to transportation and the risk of deterioration during journeys be taken into account when examining whether there is a proven link between certain qualities of the food and its origin or provenance for the purposes of the application of Article 39(2)?

| 4. | Does the assessment of the conditions laid down in Article 39 presuppose that the qualities of the food are regarded as being unique on account of its origin or provenance or as being guaranteed by reason of that origin or provenance and, in the latter case, notwithstanding the harmonisation of health and environmental standards applicable within the European Union, can the indication of origin or provenance be more precise than the indications ‘EU’ or ‘Non-EU’? |
| --- | --- |

4.

Does the assessment of the conditions laid down in Article 39 presuppose that the qualities of the food are regarded as being unique on account of its origin or provenance or as being guaranteed by reason of that origin or provenance and, in the latter case, notwithstanding the harmonisation of health and environmental standards applicable within the European Union, can the indication of origin or provenance be more precise than the indications ‘EU’ or ‘Non-EU’?

---

(1)  Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (OJ 2011 L 304, p. 18).

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/26 |
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Official Journal of the European Union

C 352/26

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Request for a preliminary ruling from the Cour de cassation (France) lodged on 23 July 2018 — RE v Praxair MRC

(Case C-486/18)

(2018/C 352/31)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: RE

Defendant: Praxair MRC

Questions referred

| 1. | Are Clauses 2.4 and 2.6 of the framework agreement on parental leave, annexed to Council Directive 96/34/EC of 3 June 1996 concerning the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, (1) to be interpreted as precluding the application to an employee who is on part-time parental leave at the time of his dismissal of a provision of domestic law, such as Article L. 3123-13 of the Labour Code, applicable at the material time, under which ‘the compensation payment for dismissal and retirement benefit payable to an employee who has worked on both a full-time and part-time basis for the same undertaking shall be calculated in proportion to the periods of each of those types of employment completed since the employee joined the undertaking’? |
| --- | --- |

1.

Are Clauses 2.4 and 2.6 of the framework agreement on parental leave, annexed to Council Directive 96/34/EC of 3 June 1996 concerning the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, (1) to be interpreted as precluding the application to an employee who is on part-time parental leave at the time of his dismissal of a provision of domestic law, such as Article L. 3123-13 of the Labour Code, applicable at the material time, under which ‘the compensation payment for dismissal and retirement benefit payable to an employee who has worked on both a full-time and part-time basis for the same undertaking shall be calculated in proportion to the periods of each of those types of employment completed since the employee joined the undertaking’?

| 2. | Are Clauses 2.4 and 2.6 of the framework agreement, annexed to Council Directive 96/34/EC of 3 June 1996 concerning the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, to be interpreted as precluding the application to an employee who is on part-time parental leave at the time of his dismissal of a provision of domestic law, such as Article R. 1233-32 of the Labour Code, under which, during a period of redeployment leave which exceeds the notice period, the employee is to receive a monthly payment from the employer of an amount equivalent to at least 65 % of the employee’s average gross monthly pay during the twelve months preceding the notice of dismissal, subject to the contributions referred to in Article L. 5422-9? |
| --- | --- |

2.

Are Clauses 2.4 and 2.6 of the framework agreement, annexed to Council Directive 96/34/EC of 3 June 1996 concerning the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, to be interpreted as precluding the application to an employee who is on part-time parental leave at the time of his dismissal of a provision of domestic law, such as Article R. 1233-32 of the Labour Code, under which, during a period of redeployment leave which exceeds the notice period, the employee is to receive a monthly payment from the employer of an amount equivalent to at least 65 % of the employee’s average gross monthly pay during the twelve months preceding the notice of dismissal, subject to the contributions referred to in Article L. 5422-9?

| 3. | If the answer to either of the preceding questions is in the affirmative, is Article 157 of the Treaty on the Functioning of the European Union to be interpreted as precluding provisions of national law, such as Article L. 3123-13 of the Labour Code, applicable at the material time, and Article R. 1233-32 of that Code, insofar as a far greater number of women than men choose to take part-time parental leave and the indirect discrimination which results therefrom as regards the receipt of redundancy pay and redeployment leave allowance, which are less than those received by employees who have not taken part-time parental leave, is not justified by objective factors unrelated to any form of discrimination? |
| --- | --- |

3.

If the answer to either of the preceding questions is in the affirmative, is Article 157 of the Treaty on the Functioning of the European Union to be interpreted as precluding provisions of national law, such as Article L. 3123-13 of the Labour Code, applicable at the material time, and Article R. 1233-32 of that Code, insofar as a far greater number of women than men choose to take part-time parental leave and the indirect discrimination which results therefrom as regards the receipt of redundancy pay and redeployment leave allowance, which are less than those received by employees who have not taken part-time parental leave, is not justified by objective factors unrelated to any form of discrimination?

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(1)  OJ 1996 L 145, p. 4.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/26 |
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Request for a preliminary ruling from the Najvyšší súd Slovenskej republiky (the Slovak Republic) lodged on 30 July 2018 — YX

(Case C-495/18)

(2018/C 352/32)

Language of the case: Slovak

Referring court

Najvyšší súd Slovenskej republiky

Parties to the main proceedings

Applicant: YX

Questions referred

| 1. | Is Article 4(1)(a) of the Framework Decision (1) to be interpreted to the effect that the criteria set out therein are satisfied only when the sentenced person has, in the Member State of his nationality, such family, social, professional or other links that it is possible to reasonably assume from those links that enforcement in that State of the sentence may facilitate his social rehabilitation, and as therefore precluding national legislation such as Paragraph 4(1)(a) of Law No 549/2011 [Zákon č. 549/2011 o uznávaní a výkone rozhodnutí, ktorými sa ukladá trestná sankcia spojená s odňatím slobody v Európskej únii a o zmene a doplnení zákona č. 221/2006 o výkone väzby v znení neskorších predpisov] which, in such cases, enables a judgment to be recognised and enforced in the event of merely formally-recorded habitual residence in the executing State, regardless of whether the sentenced person has concrete links in that State which could enhance his social rehabilitation. |
| --- | --- |

1.

Is Article 4(1)(a) of the Framework Decision (1) to be interpreted to the effect that the criteria set out therein are satisfied only when the sentenced person has, in the Member State of his nationality, such family, social, professional or other links that it is possible to reasonably assume from those links that enforcement in that State of the sentence may facilitate his social rehabilitation, and as therefore precluding national legislation such as Paragraph 4(1)(a) of Law No 549/2011 [Zákon č. 549/2011 o uznávaní a výkone rozhodnutí, ktorými sa ukladá trestná sankcia spojená s odňatím slobody v Európskej únii a o zmene a doplnení zákona č. 221/2006 o výkone väzby v znení neskorších predpisov] which, in such cases, enables a judgment to be recognised and enforced in the event of merely formally-recorded habitual residence in the executing State, regardless of whether the sentenced person has concrete links in that State which could enhance his social rehabilitation.

| 2. | If that question is answered in the affirmative, is Article 4(2) of the Framework Decision to be interpreted to the effect that the competent authority of the issuing State is required also in the situation provided for in Article 4(1)(a) of the Framework Decision to satisfy itself, even before forwarding the judgment and certificate, that enforcement of the sentence by the executing State would serve the purpose of facilitating the social rehabilitation of the sentenced person and is, furthermore, required to provide the information gathered for that purpose in section (d), point 4, of the certificate specifically, where the sentenced person claims in the statement of his opinion provided for in Article 6(3) of the Framework Decision that he has concrete family, social or professional links in the issuing State. |
| --- | --- |

2.

If that question is answered in the affirmative, is Article 4(2) of the Framework Decision to be interpreted to the effect that the competent authority of the issuing State is required also in the situation provided for in Article 4(1)(a) of the Framework Decision to satisfy itself, even before forwarding the judgment and certificate, that enforcement of the sentence by the executing State would serve the purpose of facilitating the social rehabilitation of the sentenced person and is, furthermore, required to provide the information gathered for that purpose in section (d), point 4, of the certificate specifically, where the sentenced person claims in the statement of his opinion provided for in Article 6(3) of the Framework Decision that he has concrete family, social or professional links in the issuing State.

| 3. | If question 1 is answered in the affirmative, must Article 9(1)(b) of the Framework Decision be interpreted to the effect that where, in the situation set out in Article 4(1)(a) of the Framework Decision, despite the consultation under Article 4(1)(3) of that Decision and any provision of other necessary information, it is not proven that there are such family, social or professional links from which it could reasonably be assumed that the enforcement in the executing State of the sentence may facilitate the social rehabilitation of the sentenced person, there is still a ground for refusing to recognise and enforce the judgment. |
| --- | --- |

3.

If question 1 is answered in the affirmative, must Article 9(1)(b) of the Framework Decision be interpreted to the effect that where, in the situation set out in Article 4(1)(a) of the Framework Decision, despite the consultation under Article 4(1)(3) of that Decision and any provision of other necessary information, it is not proven that there are such family, social or professional links from which it could reasonably be assumed that the enforcement in the executing State of the sentence may facilitate the social rehabilitation of the sentenced person, there is still a ground for refusing to recognise and enforce the judgment.

---

(1)  Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ 2008 L 327, p. 27).

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General Court

| 1.10.2018 | EN | Official Journal of the European Union | C 352/28 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/28

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Judgment of the General Court of 13 July 2018 — K. Chrysostomides & Co. and Others v Council and Others

(Case T-680/13) (1)

((Non-contractual liability - Economic and monetary policy - Stability support programme for Cyprus - Decision of the Governing Council of the ECB relating to emergency liquidity assistance following a request from the Central Bank of Cyprus - Euro Group Statements of 25 March, 12 April, 13 May and 13 September 2013 concerning Cyprus - Decision 2013/236/EU - Memorandum of Understanding of 26 April 2013 on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism - Jurisdiction of the General Court - Admissibility - Formal requirements - Exhaustion of national rights of action - Sufficiently serious breach of a rule of law intended to confer rights on individuals - Right to property - Legitimate expectations - Equal treatment))

(2018/C 352/33)

Language of the case: English

Parties

Applicants: Dr. K. Chrysostomides & Co. LLC (Nicosia, Cyprus) and 50 other applicants whose names are included in the annex (represented by: P. Tridimas, Barrister)

Defendants: Council of the European Union (represented by: A. de Gregorio Merino, E. Dumitriu-Segnana, E. Chatziioakeimidou and E. Moro, acting as Agents), European Commission (represented initially by: B. Smulders, J.-P. Keppenne and M. Konstantinidis, and subsequently by J.-P. Keppenne, M. Konstantinidis and L. Flynn, acting as Agents), European Central Bank (represented initially by: N. Lenihan and F. Athanasiou, subsequently by P. Papapaschalis and P. Senkovic and finally by M. Szablewska and K. Laurinavičius, acting as Agents, and by H.-G. Kamann, avocat), Euro Group, represented by the Council of the European Union (represented by: A. de Gregorio Merino, E. Dumitriu-Segnana, E. Chatziioakeimidou and E. Moro, acting as Agents) European Union, represented by the European Commission (represented initially by: B. Smulders, J.-P. Keppenne and M. Konstantinidis, and subsequently by J.-P. Keppenne, M. Konstantinidis and L. Flynn, acting as Agents)

Re:

Action under Article 268 TFEU seeking compensation for damage allegedly suffered by the applicants as a result of the decision of the Governing Council of the ECB of 21 March 2013 relating to emergency liquidity assistance following a request from the Central Bank of Cyprus, the Euro Group Statements of 25 March, 12 April, 13 May and 13 September 2013 concerning Cyprus, Council Decision 2013/236/EU of 25 April 2013 addressed to Cyprus on specific measures to restore financial stability and sustainable growth (OJ 2013 L 141, p. 32), the Memorandum of Understanding of 26 April 2013 on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism (ESM), and other acts and conduct of the Commission, Council, the ECB and the Euro Group connected with the grant of a financial assistance facility to the Republic of Cyprus.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Dr. K. Chrysostomides & Co. LLC and the other applicants whose names appear in the annex to bear, in addition to their own costs, those incurred by the Council of the European Union, by the European Commission and by the European Central Bank (ECB). |
| --- | --- |

2.

Orders Dr. K. Chrysostomides & Co. LLC and the other applicants whose names appear in the annex to bear, in addition to their own costs, those incurred by the Council of the European Union, by the European Commission and by the European Central Bank (ECB).

---

(1)  OJ C 194, 24.6.2014.

---

| 1.10.2018 | EN | Official Journal of the European Union | C 352/29 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/29

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Judgment of the General Court of 13 July 2018 — Bourdouvali and Others v Council and Others

(Case T-786/14) (1)

((Non-contractual liability - Economic and monetary policy - Stability support programme for Cyprus - Decision of the Governing Council of the ECB relating to emergency liquidity assistance following a request from the Central Bank of Cyprus - Euro Group Statements of 25 March, 12 April, 13 May and 13 September 2013 concerning Cyprus - Decision 2013/236/EU - Memorandum of Understanding of 26 April 2013 on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism - Jurisdiction of the General Court - Admissibility - Formal requirements - Exhaustion of national rights of action - Sufficiently serious breach of a rule of law intended to confer rights on individuals - Right to property - Legitimate expectations - Equal treatment))

(2018/C 352/34)

Language of the case: English

Parties

Applicants: Eleni Pavlikka Bourdouvali (Meneou, Cyprus) and 51 other applicants whose names are included in the annex (represented by: P. Tridimas, barrister).

Defendants: Council of the European Union (represented by: A. de Gregorio Merino, E. Moro and E. Chatziioakeimidou, acting as Agents), European Commission (represented by: J.-P. Keppenne, M. Konstantinidis and L. Flynn, acting as Agents), European Central Bank (ECB) (represented by: K. Laurinavičius and M. Szablewska, acting as Agents, and by H.-G. Kamann, avocat), Eurogroupe, represented by: the Council of the European Union (represented by M. A. de Gregorio Merino, Mmes E. Moro and E. Chatziioakeimidou, acting as Agents), European Union, represented by the European Commission (represented by J.-P. Keppenne, M. Konstantinidis and L. Flynn, acting as Agents)

Re:

Action under Article 268 TFEU seeking compensation for damage allegedly suffered by the applicants as a result of the decision of the Governing Council of the ECB of 21 March 2013 relating to emergency liquidity assistance following a request from the Central Bank of Cyprus, the Euro Group Statements of 25 March, 12 April, 13 May and 13 September 2013 concerning Cyprus, Council Decision 2013/236/EU of 25 April 2013 addressed to Cyprus on specific measures to restore financial stability and sustainable growth (OJ 2013 L 141, p. 32), the Memorandum of Understanding of 26 April 2013 on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism (ESM), and other acts and conduct of the Commission, Council, the ECB and the Euro Group connected with the grant of a financial assistance facility to the Republic of Cyprus.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Mrs Eleni Pavlikka Bourdouvali and the other applicants whose names appear in the annex to bear, in addition to their own costs, those incurred by the Council of the European Union, by the European Commission and by the European Central Bank (ECB). |
| --- | --- |

2.

Orders Mrs Eleni Pavlikka Bourdouvali and the other applicants whose names appear in the annex to bear, in addition to their own costs, those incurred by the Council of the European Union, by the European Commission and by the European Central Bank (ECB).

---

(1)  OJ C 73, 2.3.2015.

---

| 1.10.2018 | EN | Official Journal of the European Union | C 352/30 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/30

---

Judgment of the General Court of 13 July 2018 — Banque postale v ECB

(Case T-733/16) (1)

((Economic and monetary policy - Prudential supervision of credit institutions - Article 4(1)(d) and (3) of Regulation (EU) No 1024/2013 - Calculation of the leverage ratio - Refusal of the ECB to grant authorisation to the applicant to exclude exposures meeting certain conditions from the calculation of the leverage ratio - Article 429(14) of Regulation (EU) No 575/2013 - Discretion of the ECB - Errors of law - Manifest error of assessment))

(2018/C 352/35)

Language of the case: French

Parties

Applicant: La Banque postale (Paris, France) (represented by: E. Guillaume and L. Coudray, lawyers)

Defendant: European Central Bank (represented by: K. Lackhoff, R. Bax and G. Bassani, acting as Agents, and H.-G. Kamann and F. Louis, lawyers)

Intervener in support of the defendant: Republic of Finland (represented by: S. Hartikainen, acting as Agent)

Re:

Application on the basis of Article 263 TFEU seeking the annulment of European Central Bank Decision ECB/SSM/2016-96950066U5XAAIRCPA78/16 of 24 August 2016, taken pursuant to Article 4(1)(d) and Article 10 of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63), and Article 429(14) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on the prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1, corrigenda OJ 2013 L 208, p. 68 and OJ 2013 L 321, p. 6).

Operative part of the judgment

The Court:

| 1. | Annuls European Central Bank (ECB) Decision ECB/SSM/2016-96950066U5XAAIRCPA78/16 of 24 August 2016; |
| --- | --- |

1.

Annuls European Central Bank (ECB) Decision ECB/SSM/2016-96950066U5XAAIRCPA78/16 of 24 August 2016;

| 2. | Orders the ECB to pay the costs; |
| --- | --- |

2.

Orders the ECB to pay the costs;

| 3. | Orders the Republic of Finland to bear its own costs. |
| --- | --- |

3.

Orders the Republic of Finland to bear its own costs.

---

(1)  OJ C 454, 5.12.2016.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/31 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/31

---

Judgment of the General Court of 13 July 2018 — BNP Paribas v ECB

(Case T-751/16) (1)

((Economic and monetary policy - Prudential supervision of credit institutions - Article 4(1)(d) and (3) of Regulation (EU) No 1024/2013 - Calculation of the leverage ratio - Refusal of the ECB to grant authorisation to the applicant to exclude exposures meeting certain conditions from the calculation of the leverage ratio - Article 429(14) of Regulation (EU) No 575/2013 - Discretion of the ECB - Errors of law - Manifest error of assessment))

(2018/C 352/36)

Language of the case: French

Parties

Applicant: Confédération nationale du Crédit mutuel (Paris, France) (represented by: M. Grégoire and C. De Jonghe, lawyers)

Defendant: European Central Bank (represented by: K. Lackhoff, R. Bax, G. Bassani and C. Olivier, acting as Agents, and H.-G. Kamann and F. Louis, lawyers)

Intervener in support of the defendant: Republic of Finland (represented by: S. Hartikainen, acting as Agent)

Re:

Application on the basis of Article 263 TFEU seeking the annulment of European Central Bank Decision ECB/SSM/2016-9695000CG7B84NLR5984/92 of 24 August 2016, taken pursuant to Article 4(1)(d) and Article 10 of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63), and Article 429(14) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on the prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1, corrigenda OJ 2013 L 208, p. 68 and OJ 2013 L 321, p. 6).

Operative part of the judgment

The Court:

| 1. | Annuls European Central Bank (ECB) Decision ECB/SSM/2016-9695000CG7B84NLR5984/92 of 24 August 2016; |
| --- | --- |

1.

Annuls European Central Bank (ECB) Decision ECB/SSM/2016-9695000CG7B84NLR5984/92 of 24 August 2016;

| 2. | Orders the ECB to pay the costs; |
| --- | --- |

2.

Orders the ECB to pay the costs;

| 3. | Orders the Republic of Finland to bear its own costs. |
| --- | --- |

3.

Orders the Republic of Finland to bear its own costs.

---

(1)  OJ C 6, 9.1.2017.

---

| 1.10.2018 | EN | Official Journal of the European Union | C 352/32 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/32

---

Judgment of the General Court of 13 July 2018 — BNP Paribas v ECB

(Case T-768/16) (1)

((Economic and monetary policy - Prudential supervision of credit institutions - Article 4(1)(d) and (3) of Regulation (EU) No 1024/2013 - Calculation of the leverage ratio - Refusal of the ECB to grant authorisation to the applicant to exclude exposures meeting certain conditions from the calculation of the leverage ratio - Article 429(14) of Regulation (EU) No 575/2013 - Discretion of the ECB - Errors of law - Manifest error of assessment))

(2018/C 352/37)

Language of the case: French

Parties

Applicant: BNP Paribas (Paris, France) (represented by: A. Champsaur and A. Delors, lawyers)

Defendant: European Central Bank (represented by: K. Lackhoff, R. Bax, G. Bassani and C. Olivier, acting as Agents)

Intervener in support of the defendant: Republic of Finland (represented by: S. Hartikainen, acting as Agent)

Re:

Application on the basis of Article 263 TFEU seeking the annulment of European Central Bank Decision ECB/SSM/2016-R0MUWSFPU8MPRO8K5P83/136 of 24 August 2016, taken pursuant to Article 4(1)(d) and Article 10 of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63), and Article 429(14) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on the prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p. 1, corrigenda OJ 2013 L 208, p. 68 and OJ 2013 L 321, p. 6).

Operative part of the judgment

The Court:

| 1. | Annuls European Central Bank (ECB) Decision ECB/SSM/2016-R0MUWSFPU8MPRO8K5P83/136 of 24 August 2016; |
| --- | --- |

1.

Annuls European Central Bank (ECB) Decision ECB/SSM/2016-R0MUWSFPU8MPRO8K5P83/136 of 24 August 2016;

| 2. | Orders the ECB to pay the costs; |
| --- | --- |

2.

Orders the ECB to pay the costs;

| 3. | Orders the Republic of Finland to bear its own costs. |
| --- | --- |

3.

Orders the Republic of Finland to bear its own costs.

---

(1)  OJ C 6, 9.1.2017.

---

| 1.10.2018 | EN | Official Journal of the European Union | C 352/32 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/32

---

Judgment of the General Court of 13 July 2018 — Cyprus v EUIPO — Papouis Dairies (Pallas Halloumi)

(Case T-825/16) (1)

((EU trade mark - Opposition proceedings - Application for EU figurative mark Pallas Halloumi - Prior United Kingdom word certification mark HALLOUMI - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)))

(2018/C 352/38)

Language of the case: English

Parties

Applicant: Republic of Cyprus (represented by: S. Malynicz, QC, and V. Marsland, Solicitor)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Papouis Dairies Ltd (Nicosia, Cyprus) (represented by: N. Korogiannakis, lawyer)

Re:

Action brought against an appeal brought before the Fourth Chamber of the Board of Appeal of EUIPO of 22 September 2016 (Case R 2065/2014-4), relating to opposition proceedings between the Republic of Cyprus and Papouis Dairies.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Republic of Cyprus to pay the costs. |
| --- | --- |

2.

Orders the Republic of Cyprus to pay the costs.

---

(1)  OJ C 22, 23.1.2017.

---

| 1.10.2018 | EN | Official Journal of the European Union | C 352/33 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/33

---

Judgment of the General Court of 13 July 2018 — Cyprus v EUIPO — POA (COWBOYS HALLOUMI)

(Case T-847/16) (1)

((EU trade mark - Opposition proceedings - Application for EU figurative mark COWBOYS HALLOUMI - Prior United Kingdom word certification mark HALLOUMI - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)))

(2018/C 352/39)

Language of the case: English

Parties

Applicant: Republic of Cyprus (represented by: S. Malynicz, QC, and V. Marsland, Solicitor)

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

Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Pagkypriosorganismos ageladotrofon (POA) (Latsia, Cyprus) (represented by: N. Korogiannakis, lawyer)

Re:

Action brought against an appeal brought before the Fourth Chamber of the Board of Appeal of EUIPO of 22 September 2016 (Case R 2781/2014-4), relating to opposition proceedings between the Republic of Cyprus et POA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the Republic of Cyprus to pay the costs. |
| --- | --- |

2.

Orders the Republic of Cyprus to pay the costs.

---

(1)  OJ C 22, 23.1.2017.

---

| 1.10.2018 | EN | Official Journal of the European Union | C 352/34 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/34

---

Judgment of the General Court of 13 July 2018 — Star Television Productions v EUIPO — Marc Dorcel (STAR)

(Case T-797/17) (1)

((EU trade mark - Revocation proceedings - EU figurative mark STAR - No genuine use of the mark - Article 51(1)(a) of Regulation (EC) No 207/2009 (now Article 58(1)(a) of Regulation (EU) 2017/1001)))

(2018/C 352/40)

Language of the case: French

Parties

Applicant: Star Television Productions Ltd (Tortola, United Kingdom) (represented by: D. Farnsworth, lawyer)

Defendant: European Union Intellectual Property Office (represented by: V. Ruzek, acting as agent)

Other party to the proceedings before the Board of Appeal of EUIPO: Marc Dorcel SA (Paris, France) (represented by: B. Soyer, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 14 September 2017 (Case R 1519/2016-2), relating to revocation proceedings between Star Television Productions and Marc Dorcel.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Star Television Productions Ltd to bear the costs. |
| --- | --- |

2.

Orders Star Television Productions Ltd to bear the costs.

---

(1)  OJ C 42, 5.2.2018.

---

| 1.10.2018 | EN | Official Journal of the European Union | C 352/34 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/34

---

Action brought on 27 June 2018 — WV v EEAS

(Case T-388/18)

(2018/C 352/41)

Language of the case: French

Parties

Applicant: WV (represented by: É. Boigelot, lawyer)

Defendant: European External Action Service

Form of order sought

The applicant claims that the General Court should:

| — | declare the present application admissible and well founded;






  — | and accordingly, after first ordering the defendant, pursuant to Article 89(3)(d) of the Rules of Procedure of the General Court, which provides for ‘measures of organisation of procedure’, to produce all the material and documents relating to the present case, including the mandate and findings of the internal security investigation carried out by the Appointing Authority; all EEAS documents and decisions produced internally in connection with the accusations alleging extraction of documents and possible transmission of information by the applicant to a third State (Israel/Turkey), exact dates, the information allegedly shared and concrete evidence, the information sent to and the response from its security service; the internal documents and/or decisions apparently produced or taken in connection with the incident of 27 July 2016 and, in particular, a note from the Secretary General of the EEAS concerning the applicant’s exclusion from the Turkey Division; the email sent by Ms [X] in September 2015 to Mr [Y] which apparently referred to ‘serious problems relating predominantly to her conduct’; information relating to the nature of the various transfers to which she was subject in order to clarify whether the transfers were made on the basis of her post and/or additional posts; the terms of reference of the national experts made available to the EEAS Turkey Division, reflecting the agreement concluded with individual Member States in June 2015 in view of the establishment of that division; the minutes of the meeting of 18 May 2017 between the applicant, a representative of the Staff Committee and the appointing authority; the email exchanges which took place on 10 July 2017 between Mr [Z] and the Head of the EU Delegation to Turkey; |
| --- | --- | --- |

—

declare the present application admissible and well founded;

—

and accordingly, after first ordering the defendant, pursuant to Article 89(3)(d) of the Rules of Procedure of the General Court, which provides for ‘measures of organisation of procedure’, to produce all the material and documents relating to the present case, including the mandate and findings of the internal security investigation carried out by the Appointing Authority; all EEAS documents and decisions produced internally in connection with the accusations alleging extraction of documents and possible transmission of information by the applicant to a third State (Israel/Turkey), exact dates, the information allegedly shared and concrete evidence, the information sent to and the response from its security service; the internal documents and/or decisions apparently produced or taken in connection with the incident of 27 July 2016 and, in particular, a note from the Secretary General of the EEAS concerning the applicant’s exclusion from the Turkey Division; the email sent by Ms [X] in September 2015 to Mr [Y] which apparently referred to ‘serious problems relating predominantly to her conduct’; information relating to the nature of the various transfers to which she was subject in order to clarify whether the transfers were made on the basis of her post and/or additional posts; the terms of reference of the national experts made available to the EEAS Turkey Division, reflecting the agreement concluded with individual Member States in June 2015 in view of the establishment of that division; the minutes of the meeting of 18 May 2017 between the applicant, a representative of the Staff Committee and the appointing authority; the email exchanges which took place on 10 July 2017 between Mr [Z] and the Head of the EU Delegation to Turkey;

| — | annul the implied decision rejecting the request for assistance based on Article 24 of the Staff Regulations, made on 4 September 2017; |
| --- | --- |

—

annul the implied decision rejecting the request for assistance based on Article 24 of the Staff Regulations, made on 4 September 2017;

| — | annul the decision of 28 March 2018, reference Ares(2018)1705593, served on the same date, by which the Appointing Authority rejected the applicant’s complaint lodged on 29 November 2017, under reference R/510/17, against the implied decision rejecting the request for assistance based on Article 24 of the Staff Regulations; |
| --- | --- |

—

annul the decision of 28 March 2018, reference Ares(2018)1705593, served on the same date, by which the Appointing Authority rejected the applicant’s complaint lodged on 29 November 2017, under reference R/510/17, against the implied decision rejecting the request for assistance based on Article 24 of the Staff Regulations;

| — | order the defendant to pay all costs, in accordance with Article 134 of the Rules of Procedure of the General Court of the European Union. |
| --- | --- |

—

order the defendant to pay all costs, in accordance with Article 134 of the Rules of Procedure of the General Court of the European Union.

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea in law alleging breach of the duty to afford assistance and to have regard for the interests of members of staff, of Articles 1e(2), 12, 12a, 22b, 24, 25 and 26 of the Staff Regulations of Officials of the European Union (‘the Staff Regulations’), of the principle of good administration, of Articles 1 and 2 of Annex IX to the Staff Regulations, and of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1).

In the context of that plea, the applicant also alleges infringement of, inter alia, Articles 41, 47 and 52 of the Charter of Fundamental Rights of the European Union, of the European Convention on Human Rights and Fundamental Freedoms, and of the rights of defence, as well as abuse of rights and abuse of process, in addition to the manifest breach of the principles of the protection of legitimate expectations and the equality of arms.

The applicant alleges lastly, in the context of that plea, breach of the principle that requires the administration to adopt a decision solely on the basis of legally permissible grounds, by which is meant grounds that are relevant and not vitiated by any manifest error of assessment, of fact or of law, and breach of the principle of proportionality, the adversarial principle, and the principles of sound administration and legal certainty, in addition to infringement of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 1).

Thus, by the single plea raised, the applicant claims that, in adopting the contested decision in the conditions complained of and subsequently rejecting the applicant’s complaint, the appointing authority manifestly failed correctly to interpret and apply the provisions of the Staff Regulations and the abovementioned principles since its decision was based on grounds that are incorrect both in fact and in law and consequently placed the applicant in an unlawful administrative situation, with a complete lack of correspondence between the facts established and the rejection of the application for assistance.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/36 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/36

---

Action brought on 27 June 2018 — Riesco García v Parliament

(Case T-391/18)

(2018/C 352/42)

Language of the case: Spanish

Parties

Applicant: Juan Carlos Riesco García (Rota, Spain) (represented by: M. Tey Ariza, lawyer)

Defendant: European Parliament

Form of order sought

The applicant claims that the General Court should:

| — | grant the action brought by way of this application, and in accordance with the powers of the General Court of the European Union, for a declaration of failure to act in respect of the response received from the Committee on Petitions of the European Parliament of 31 May 2017 to his Petition No 0741/2015 on the alleged discrimination between career civil servants and temporary civil servants as regards the difference in treatment in respect of the retirement conditions of generalist administrators of the Spanish State; |
| --- | --- |

—

grant the action brought by way of this application, and in accordance with the powers of the General Court of the European Union, for a declaration of failure to act in respect of the response received from the Committee on Petitions of the European Parliament of 31 May 2017 to his Petition No 0741/2015 on the alleged discrimination between career civil servants and temporary civil servants as regards the difference in treatment in respect of the retirement conditions of generalist administrators of the Spanish State;

| — | on the basis of the legislation at issue (Council Directive 1999/70 of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP), declare the action admissible, rule on the issue raised and, on the basis thereof, order the Spanish State to declare and immediately give effect to the right of all generalist administrators of the Spanish State to have the same or similar conditions of access to early retirement. |
| --- | --- |

—

on the basis of the legislation at issue (Council Directive 1999/70 of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP), declare the action admissible, rule on the issue raised and, on the basis thereof, order the Spanish State to declare and immediately give effect to the right of all generalist administrators of the Spanish State to have the same or similar conditions of access to early retirement.

Pleas in law and main arguments

The applicant submits that, in accordance with the Spanish legislation which is the subject of the petition, some permanent (career) employees affiliated to the social security scheme, approaching voluntary retirement, are permitted to change their social security scheme, because they are permanent employees; whereas temporary employees are not permitted to do the same because they are not permanent employees.

For the applicant, the unfounded response received from the Committee on Petitions of the European Parliament to the Petition (0741/2015) is disappointing and incomprehensible. That intuition which, having declared the petition admissible, and having stated on 3 August 2016 that it was necessary to bring Spanish legislation in line with Directive 1999/70 in respect of what was sought (equal conditions of retirement), including contemplating the possibility of initiating infringement proceedings, subsequently retracted that, arguing that there were unresolved ‘factual issues’.

Even more incomprehensible is that, if there are doubts on the issue, a reference is not made to the institution with competence to decide whether it is necessary in this case to bring national legislation in line with Directive 1999/70, namely the Court of Justice of the European Union, instead proposing to resolve that issue before the national courts, which are less, or even not at all competent to decide whether the national legislation needs to be brought in line with the European legislation.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/36 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/36

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Action brought on 29 June 2018 — ITSA v Commission

(Case T-396/18)

(2018/C 352/43)

Language of the case: French

Parties

Applicant: International Tax Stamp Association Ltd (ITSA) (Sunbury-on-Thames, United Kingdom) (represented by: F. Scanvic, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul Commission Delegated Regulation (EU) 2018/573 of 15 December 2017 on key elements of data storage contracts to be concluded as part of a traceability system for tobacco products, Commission Implementing Regulation (EU) 2018/574 of 15 December 2017 on technical standards for the establishment and operation of a traceability system for tobacco products and Commission Implementing Decision (EU) 2018/576 of 15 December 2017 on technical standards for security features applied to tobacco products. |
| --- | --- |

—

Annul Commission Delegated Regulation (EU) 2018/573 of 15 December 2017 on key elements of data storage contracts to be concluded as part of a traceability system for tobacco products, Commission Implementing Regulation (EU) 2018/574 of 15 December 2017 on technical standards for the establishment and operation of a traceability system for tobacco products and Commission Implementing Decision (EU) 2018/576 of 15 December 2017 on technical standards for security features applied to tobacco products.

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea in law, alleging infringement of Article 8 of the WHO Protocol to Eliminate Illicit Trade in Tobacco Products adopted in Seoul on 12 November 2012, prohibiting the tobacco industry from being responsible for activities relating to the marking of tobacco products. In that regard, the applicant claims that, although the Protocol has not yet come into force, it has been agreed and signed by the European Union, which may not take measures that do not comply with it.

Furthermore, it states that Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ 2014 L 127, p. 1), on the basis on which the contested regulation in the present case was adopted, can and must be interpreted in a manner consistent with the Protocol referred to, regardless of the fact that that protocol does not expressly prohibit the activities at issue from being responsible for the tobacco industry.

Finally, should such an interpretation be precluded, the Directive itself will be contrary to the Protocol and, therefore, the European Treaties.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/37 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/37

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Action brought on 13 July 2018 — Prigent v Commission

(Case T-436/18)

(2018/C 352/44)

Language of the case: French

Parties

Applicant: Claude Prigent (Caudan, France) (represented by: A. Bove, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | declare this action admissible; |
| --- | --- |

—

declare this action admissible;

| — | on the substance, declare the action well-founded in law; |
| --- | --- |

—

on the substance, declare the action well-founded in law;

| — | consequently, annul the decision of the European Commission of 23 May 2018 on the basis of the principle of national solidarity as defined by the CJEU (general principle of law) and/or on the basis of Article 9 of the Treaty on European Union; |
| --- | --- |

—

consequently, annul the decision of the European Commission of 23 May 2018 on the basis of the principle of national solidarity as defined by the CJEU (general principle of law) and/or on the basis of Article 9 of the Treaty on European Union;

| — | remit the case to the competent authority; |
| --- | --- |

—

remit the case to the competent authority;

| — | order all duties ascribed by law to be undertaken; |
| --- | --- |

—

order all duties ascribed by law to be undertaken;

| — | order the defendant to pay the costs of the proceedings, and |
| --- | --- |

—

order the defendant to pay the costs of the proceedings, and

| — | reserve to the applicant all other rights, entitlements and actions. |
| --- | --- |

—

reserve to the applicant all other rights, entitlements and actions.

Pleas in law and main arguments

In support of the action, the applicant relies on 2 pleas in law.

| 1. | First plea in law, alleging breach of the principle of national solidarity as defined by the Court of Justice of the European Union (CJEU), which is a general principle of law. In that regard, the applicant submits that, in the view of the CJEU, a scheme concerning a specific demographic or group of workers is not a legal scheme but a professional scheme. It claims that, in the present case, in view of the discrimination between self-employed persons, who are required to subscribe to the Social Security Scheme for Self-Employed Workers (régime social des travailleurs indépendants, ‘the RSI’) even if their turnover is non-existent or they are running a deficit, and other persons such as self-employed businessmen, employees and civil servants, the scheme is evidently not a legal one.
  In addition, the applicant argues that the RSI does not comply with the solidarity principle — on which, according to the French State, the RSI, as a legal social security system, is based — in that the applicant is requested to pay minimum and fixed-sum contributions, even in the event of low income. What is more, the applicant could find himself entirely without sickness pay or pension, if insufficient contributions were paid or payments were merely made late, which is allegedly not the case for other French workers subscribed to other social security schemes. |
| --- | --- |

1.

First plea in law, alleging breach of the principle of national solidarity as defined by the Court of Justice of the European Union (CJEU), which is a general principle of law. In that regard, the applicant submits that, in the view of the CJEU, a scheme concerning a specific demographic or group of workers is not a legal scheme but a professional scheme. It claims that, in the present case, in view of the discrimination between self-employed persons, who are required to subscribe to the Social Security Scheme for Self-Employed Workers (régime social des travailleurs indépendants, ‘the RSI’) even if their turnover is non-existent or they are running a deficit, and other persons such as self-employed businessmen, employees and civil servants, the scheme is evidently not a legal one.

In addition, the applicant argues that the RSI does not comply with the solidarity principle — on which, according to the French State, the RSI, as a legal social security system, is based — in that the applicant is requested to pay minimum and fixed-sum contributions, even in the event of low income. What is more, the applicant could find himself entirely without sickness pay or pension, if insufficient contributions were paid or payments were merely made late, which is allegedly not the case for other French workers subscribed to other social security schemes.

| 2. | Second plea in law, alleging infringement of Article 9 of the Treaty on European Union, which establishes the equality of all EU citizens, in that it is impossible to calculate the amount of the contributions to the RSI in a way that puts self-employed persons such as the applicant at a disadvantage in respect of the other groups of French workers. Therefore, when it declared that it would take no further action on his complaint, the Commission breached the principle of national solidarity, defined by the CJEU as a general principle of law, and infringed Article 9 of the Treaty on European Union, which should result in the annulment of its decision. |
| --- | --- |

2.

Second plea in law, alleging infringement of Article 9 of the Treaty on European Union, which establishes the equality of all EU citizens, in that it is impossible to calculate the amount of the contributions to the RSI in a way that puts self-employed persons such as the applicant at a disadvantage in respect of the other groups of French workers. Therefore, when it declared that it would take no further action on his complaint, the Commission breached the principle of national solidarity, defined by the CJEU as a general principle of law, and infringed Article 9 of the Treaty on European Union, which should result in the annulment of its decision.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/38 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/38

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Action brought on 24 July 2018 — Biasotto v EUIPO — OOFOS (OOF)

(Case T-453/18)

(2018/C 352/45)

Language of the case: English

Parties

Applicant: Alessandro Biasotto (Treviso, Italy) (represented by: F. le Divelec Lemmi, R. Castiglioni and E. Cammareri, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: OOFOS LLC (Reno, Nevada, United States).

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Applicant before the General Court

Trade mark at issue: Application for European Union figurative mark OOF — Application for registration No 14 961 767

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 10 May 2018 in Case R 1270/2017-2.

Form of order sought

The applicant claims that the Court should:

| — | fully uphold the present action; |
| --- | --- |

—

fully uphold the present action;

| — | entirely reject the contested decision and, consequently, allow EUTM Application No 14 961 767 to proceed to registration in relation to all the products and services claimed by the same in classes 18, 25 and 35 (or, eventually, asking the EUIPO to examine once again the appeal filed by the Applicant on 15 June 2017, this time, however, comparing the contested application with the trademark claimed by the Opponent’s earlier International Registration No 1 258 728); |
| --- | --- |

—

entirely reject the contested decision and, consequently, allow EUTM Application No 14 961 767 to proceed to registration in relation to all the products and services claimed by the same in classes 18, 25 and 35 (or, eventually, asking the EUIPO to examine once again the appeal filed by the Applicant on 15 June 2017, this time, however, comparing the contested application with the trademark claimed by the Opponent’s earlier International Registration No 1 258 728);

| — | order EUIPO or the Intervener to bear all the costs related not only to the present proceedings before the General Court but also to the opposition and appeal proceedings before the EUIPO. |
| --- | --- |

—

order EUIPO or the Intervener to bear all the costs related not only to the present proceedings before the General Court but also to the opposition and appeal proceedings before the EUIPO.

Plea in law

| — | Infringement of Art. 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

—

Infringement of Art. 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/39 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/39

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Action brought on 24 July 2018 — Biasotto v EUIPO — OOFOS (OO)

(Case T-454/18)

(2018/C 352/46)

Language of the case: English

Parties

Applicant: Alessandro Biasotto (Treviso, Italy) (represented by: F. Le Divelec Lemmi, R. Castiglioni and E. Cammareri, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: OOFOS LLC (Reno, Nevada, United States).

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Applicant before the General Court

Trade mark at issue: Application for European Union trade mark OO — Application for registration No 14 961 791

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Second Board of Appeal of EUIPO of 15 May 2018 in Case R 1281/2017-2.

Form of order sought

The applicant claims that the Court should:

| — | fully uphold the present action; |
| --- | --- |

—

fully uphold the present action;

| — | entirely reject the contested decision, confirming, in substance, the conclusion reached by the EUIPO in its decision of 17 May 2017 relating to opposition proceedings No B 2683558 and, consequently, allowing EUTM application No 14 961 791 to proceed to registration in relation to all products and services claimed by the same in classes 18, 25 and 35; |
| --- | --- |

—

entirely reject the contested decision, confirming, in substance, the conclusion reached by the EUIPO in its decision of 17 May 2017 relating to opposition proceedings No B 2683558 and, consequently, allowing EUTM application No 14 961 791 to proceed to registration in relation to all products and services claimed by the same in classes 18, 25 and 35;

| — | order the Intervener to bear all the costs related not only to the present proceedings before the General Court but also to the opposition and appeal proceedings before the EUIPO. |
| --- | --- |

—

order the Intervener to bear all the costs related not only to the present proceedings before the General Court but also to the opposition and appeal proceedings before the EUIPO.

Plea in law

| — | Infringement of Art. 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

—

Infringement of Art. 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/40 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/40

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Action brought on 30 July 2018 — Novartis v EUIPO (SMARTSURFACE)

(Case T-463/18)

(2018/C 352/47)

Language of the case: English

Parties

Applicant: Novartis AG (Basel, Switzerland) (represented by: L. Junquera Lara, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Application for European Union word mark SMARTSURFACE — Application for registration No 16 492 076

Contested decision: Decision of the Second Board of Appeal of EUIPO of 25 May 2018 in Case R 1765/2017-2

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

| — | declare that Articles 7(1)(b) and (c) and 7(2) of Regulation No. 207/2009 do not preclude the sign at issue (Community Trademark No. 16 492 076) in respect of the goods in Class 09 described in the application for registration and; |
| --- | --- |

—

declare that Articles 7(1)(b) and (c) and 7(2) of Regulation No. 207/2009 do not preclude the sign at issue (Community Trademark No. 16 492 076) in respect of the goods in Class 09 described in the application for registration and;

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

—

order EUIPO to pay the costs.

Plea in law

| — | Infringement of Articles 7(1)(b) and (c) and 7(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

—

Infringement of Articles 7(1)(b) and (c) and 7(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/40 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/40

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Action brought on 27 July 2018 — Getsmarter Online v EUIPO (getsmarter)

(Case T-473/18)

(2018/C 352/48)

Language of the case: English

Parties

Applicant: Getsmarter Online Ltd (London, United Kingdom) (represented by: I. Silcock, Barrister)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: Application for European Union figurative mark getsmarter — Application for registration No 16 565 939

Contested decision: Decision of the First Board of Appeal of EUIPO of 10 May 2018 in Case R 2632/2017-1

Form of order sought

The applicant claims that the Court should:

| — | annul the Contested Decision; |
| --- | --- |

—

annul the Contested Decision;

| — | order EUIPO to pay the Appellant’s costs. |
| --- | --- |

—

order EUIPO to pay the Appellant’s costs.

Pleas in law

| — | Infringement of Article 7(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council; |
| --- | --- |

—

Infringement of Article 7(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

| — | Infringement of Article 7(3) of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

—

Infringement of Article 7(3) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/41 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/41

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Action brought on 6 August 2018 — Veit v ECB

(Case T-474/18)

(2018/C 352/49)

Language of the case: German

Parties

Applicant: Sebastian Veit (Frankfurt am Main, Germany) (represented by: K. Kujath, lawyer)

Defendant: European Central Bank

Form of order sought

The applicant claims that the Court should:

| — | annul the defendant’s decision of 3 January 2018 concerning the applicant’s classification with effect from 1 January 2018, in so far as it attributes to the applicant only salary step 17 in salary band F/G; |
| --- | --- |

—

annul the defendant’s decision of 3 January 2018 concerning the applicant’s classification with effect from 1 January 2018, in so far as it attributes to the applicant only salary step 17 in salary band F/G;

| — | annul the defendant’s decision of 25 May 2018 rejecting the applicant’s application to be attributed salary step 83 in salary band F/G with effect from 1 January 2018; |
| --- | --- |

—

annul the defendant’s decision of 25 May 2018 rejecting the applicant’s application to be attributed salary step 83 in salary band F/G with effect from 1 January 2018;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The action is based on the following pleas in law:

| 1. | Infringement of the principle of equal treatment
  The first plea in law alleges that the defendant took only limited account of relevant professional experience in the case of internal candidates, in contrast to external candidates, who were in a comparable situation in an identical selection procedure. |
| --- | --- |

1.

Infringement of the principle of equal treatment

The first plea in law alleges that the defendant took only limited account of relevant professional experience in the case of internal candidates, in contrast to external candidates, who were in a comparable situation in an identical selection procedure.

| 2. | Infringement of the principle of the general duty of care
  The second plea in law alleges that the defendant, without objective justification, treated the applicant, as a member of its own staff, less favourably in the classification than it treated candidates who were not yet employed by it. |
| --- | --- |

2.

Infringement of the principle of the general duty of care

The second plea in law alleges that the defendant, without objective justification, treated the applicant, as a member of its own staff, less favourably in the classification than it treated candidates who were not yet employed by it.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/42 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/42

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Action brought on 1 August 2018 — Electroquímica Onubense v ECHA

(Case T-481/18)

(2018/C 352/50)

Language of the case: Spanish

Parties

Applicant: Electroquímica Onubense, S.L. (Palos de la Frontera, Spain) (represented by: D. González Blanco, lawyer)

Defendant: European Chemicals Agency (ECHA)

Form of order sought

The applicant requests the General Court to give a new judgment establishing that Electroquímica Onubense (EQO) fulfils the requirements for a medium-sized enterprise for the purposes of the application of the fees to be paid for the registration of products with the ECHA.

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 the SME calculation report annexed to the contested decision refers to the applicant’s relationship with ERCROS during the years 2013 and 2014 and that its author overlooks very important information, namely, that the applicant company was formed in February 2015 with share capital of EUR 3 000, the minimum capital required under Spanish commercial law. The applicant states, in that regard, that it is the new company’s share capital which was the determining factor in declaring it ‘a small enterprise’, since EQO in fact fulfilled the criteria required in the applicable legislation, ERCROS’s shareholding in that company being on any view insufficient to convert it into a ‘large enterprise’. |
| --- | --- |

1.

First plea in law, alleging that the SME calculation report annexed to the contested decision refers to the applicant’s relationship with ERCROS during the years 2013 and 2014 and that its author overlooks very important information, namely, that the applicant company was formed in February 2015 with share capital of EUR 3 000, the minimum capital required under Spanish commercial law. The applicant states, in that regard, that it is the new company’s share capital which was the determining factor in declaring it ‘a small enterprise’, since EQO in fact fulfilled the criteria required in the applicable legislation, ERCROS’s shareholding in that company being on any view insufficient to convert it into a ‘large enterprise’.

| 2. | Second plea in law, alleging that ERCROS was EQO’s sole shareholder during the period from the formation of the company (18/02/15) to the transfer of shares to SALINAS DEL ODIEL (02/06/15) and that merely on a short-term or instrumental basis in order to facilitate EQO’s transfer of ownership to its final recipient, SALINAS DEL ODIEL. |
| --- | --- |

2.

Second plea in law, alleging that ERCROS was EQO’s sole shareholder during the period from the formation of the company (18/02/15) to the transfer of shares to SALINAS DEL ODIEL (02/06/15) and that merely on a short-term or instrumental basis in order to facilitate EQO’s transfer of ownership to its final recipient, SALINAS DEL ODIEL.

| 3. | Third plea in law, alleging that at the end of the 2015 financial year, EQO was no longer owned by ERCROS (regarded as ‘a large enterprise’), either directly or indirectly, and that it was owned by SALINAS DEL ODIEL (regarded as ‘a medium-sized enterprise’). |
| --- | --- |

3.

Third plea in law, alleging that at the end of the 2015 financial year, EQO was no longer owned by ERCROS (regarded as ‘a large enterprise’), either directly or indirectly, and that it was owned by SALINAS DEL ODIEL (regarded as ‘a medium-sized enterprise’).

| 4. | Fourth plea in law, alleging that the relevant information for the purposes of determining the size of EQO, for the purpose of the application of the legislation concerned, can only be EQO’s relationship with the enterprise which was its parent company at the end of the 2015 financial year — as shown in the annual accounts for that year — and not the short-term and instrumental relationship during the reference financial year. |
| --- | --- |

4.

Fourth plea in law, alleging that the relevant information for the purposes of determining the size of EQO, for the purpose of the application of the legislation concerned, can only be EQO’s relationship with the enterprise which was its parent company at the end of the 2015 financial year — as shown in the annual accounts for that year — and not the short-term and instrumental relationship during the reference financial year.

| 5. | Fifth plea in law, alleging that it is the fee laid down for a medium-sized enterprise which had to be applied and not that for a large enterprise, since the relationship which must be established for that purpose is that between EQO and SALINAS DEL ODIEL and not that between EQO and ERCROS. |
| --- | --- |

5.

Fifth plea in law, alleging that it is the fee laid down for a medium-sized enterprise which had to be applied and not that for a large enterprise, since the relationship which must be established for that purpose is that between EQO and SALINAS DEL ODIEL and not that between EQO and ERCROS.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/42 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/42

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Action brought on 14 August 2018 — Stada Arzneimittel v EUIPO (ViruProtect)

(Case T-487/18)

(2018/C 352/51)

Language in which the application was lodged: German

Parties

Applicant: Stada Arzneimittel AG (Bad Vilbel, Germany) (represented by: J.-C. Plate and R. Kaase, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: EU word mark ‘ViruProtect’ — Application for registration No 16 295 511

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 4 June 2018 in Case R 1886/2017-5

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 7(1)(b) and (c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council; |
| --- | --- |

—

Infringement of Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

| — | Infringement of Article 7(2)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council; |
| --- | --- |

—

Infringement of Article 7(2)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

| — | Infringement of Article 75(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

—

Infringement of Article 75(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/43 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/43

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Action brought on 14 August 2018 — Vafo Praha v EUIPO — Rutzinger-Kurpas (Meatlove)

(Case T-491/18)

(2018/C 352/52)

Language of the case: English

Parties

Applicant: Vafo Praha s.r.o. (Chrášt’any, Czech Republic) (represented by: M. Vojáček, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Susanne Rutzinger-Kurpas (Spigelau, Germany)

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Other party to the proceedings before the Board of Appeal

Trade mark at issue: Application for European Union word mark Meatlove — Application for registration No 15 557 374

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 12 June 2018 in Case R 264/2018-4

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.

Plea in law

| — | Infringement of Article 8(1)(b) in conjunction with Article 46 of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

—

Infringement of Article 8(1)(b) in conjunction with Article 46 of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/44 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/44

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Action brought on 15 August 2018 — Zhadanov v EUIPO (Scanner Pro)

(Case T-492/18)

(2018/C 352/53)

Language of the case: English

Parties

Applicant: Igor Zhadanov (Odessa, Ukraine) (represented by: P. Olson, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO).

Details of the proceedings before EUIPO

Trade mark at issue: Application for European Union word mark Scanner Pro — Application for registration No 16 257 727

Contested decision: Decision of the Second Board of Appeal of EUIPO of 6 June 2018 in Case R 1812/2017-2.

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

| — | register European Union Trade Mark Application 016257727 for goods in classes 9 and 42; |
| --- | --- |

—

register European Union Trade Mark Application 016257727 for goods in classes 9 and 42;

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

—

order EUIPO to pay the costs.

Plea in law

| — | Infringement of Article 7(3) of Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 7(3) of Regulation No 207/2009.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/44 |
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1.10.2018

EN

Official Journal of the European Union

C 352/44

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Action brought on 17 August 2018 — Dermatest v EUIPO (DERMATEST)

(Case T-495/18)

(2018/C 352/54)

Language in which the application was lodged: German

Parties

Applicant: Dermatest Gesellschaft für allergologische Forschung u. Vertrieb von Körperpflegemitteln mbH (Münster, Germany) (represented by: J. Bühling and D. Graetsch, lawyers)

Defendant: European Union Intellectual Property Office (EUIPO)

Details of the proceedings before EUIPO

Trade mark at issue: EU word mark ‘DERMATEST’ — Application for registration No 17 542 986

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 12 June 2018 in Case R 426/2018-4

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, including those incurred in the proceedings before the Board of Appeal. |
| --- | --- |

—

order EUIPO to pay the costs, including those incurred in the proceedings before the Board of Appeal.

Plea in law

| — | Infringement of Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

—

Infringement of Article 7(1)(b) and (c) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/45 |
| --- | --- | --- | --- |

1.10.2018

EN

Official Journal of the European Union

C 352/45

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Action brought on 17 August 2018 — OCU v SRB

(Case T-496/18)

(2018/C 352/55)

Language of the case: Spanish

Parties

Applicant: Organización de Consumidores y Usuarios (OCU) (Madrid, Spain) (represented by: E. Martínez Martínez and C. López-Mélida de Ramón, lawyers)

Defendant: Single Resolution Board

Form of order sought

The applicant claims that the General Court should:

| — | Annul the SRB Appeal Panel’s Final Decision of 19 June 2018, given in Case 54/2017 brought against the Single Resolution Board; |
| --- | --- |

—

Annul the SRB Appeal Panel’s Final Decision of 19 June 2018, given in Case 54/2017 brought against the Single Resolution Board;

| — | Order the ‘SRB Appeal Panel’ to pay the costs. |
| --- | --- |

—

Order the ‘SRB Appeal Panel’ 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 a breach of the fundamental right under Article 41(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the principle of the observance of the rights of the defence (right to good administration in the form of access to documents for the legitimate exercise of the rights of the defence).






  — | It is claimed in that connection that the contested decision, in which the Appeal Board does not grant full access to the documentation held by the Single Resolution Board (SRB), requested for the purpose of exercising the legitimate rights of the defence, constitutes a serious breach of the fundamental right to good administration, in the form of access to documents under Article 41(2) of the Charter and the fundamental principle of EU law of observance of the rights of the defence. |
| --- | --- | --- |

1.

First plea in law, alleging a breach of the fundamental right under Article 41(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the principle of the observance of the rights of the defence (right to good administration in the form of access to documents for the legitimate exercise of the rights of the defence).

—

It is claimed in that connection that the contested decision, in which the Appeal Board does not grant full access to the documentation held by the Single Resolution Board (SRB), requested for the purpose of exercising the legitimate rights of the defence, constitutes a serious breach of the fundamental right to good administration, in the form of access to documents under Article 41(2) of the Charter and the fundamental principle of EU law of observance of the rights of the defence.

| 2. | Second plea in law, alleging infringement of the articles which establish an exception to the requirements of confidentiality and professional secrecy where a request is made in the exercise of the rights of the defence and access to an effective remedy, referred to in Article 88 of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014, establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1); Article 84 of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190); and Article 53 of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338).






  — | It is claimed in that connection that the contested decision, in which the Appeal Board does not grant full access to the documentation held by the SRB, wrongly applies the exceptions to general access to documents contained in the abovementioned legislation, given that such access is sought in the context of exercising the rights of the defence and the right to access to an effective remedy. |
| --- | --- | --- |

2.

Second plea in law, alleging infringement of the articles which establish an exception to the requirements of confidentiality and professional secrecy where a request is made in the exercise of the rights of the defence and access to an effective remedy, referred to in Article 88 of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014, establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1); Article 84 of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190); and Article 53 of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338).

—

It is claimed in that connection that the contested decision, in which the Appeal Board does not grant full access to the documentation held by the SRB, wrongly applies the exceptions to general access to documents contained in the abovementioned legislation, given that such access is sought in the context of exercising the rights of the defence and the right to access to an effective remedy.

| 3. | Third plea in law, alleging a breach of the fundamental right under Article 41(2) of the Charter (the right to good administration, so far as concerns the obligation to give reasons for decisions).






  — | It is claimed in that connection that the contested decision, in which the Appeal Board does not grant full access to the documentation held by the Single Resolution Board (SRB), constitutes a serious breach of the fundamental right to good administration, referred to in Article 41(2) of the Charter, in so far as it disregards the obligation to give reasons for decisions. |
| --- | --- | --- |

3.

Third plea in law, alleging a breach of the fundamental right under Article 41(2) of the Charter (the right to good administration, so far as concerns the obligation to give reasons for decisions).

—

It is claimed in that connection that the contested decision, in which the Appeal Board does not grant full access to the documentation held by the Single Resolution Board (SRB), constitutes a serious breach of the fundamental right to good administration, referred to in Article 41(2) of the Charter, in so far as it disregards the obligation to give reasons for decisions.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/46 |
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1.10.2018

EN

Official Journal of the European Union

C 352/46

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Action brought on 14 August 2018 — IAK — Forum International v EUIPO — Schwalb (IAK)

(Case T-497/18)

(2018/C 352/56)

Language in which the application was lodged: German

Parties

Applicant: IAK GmbH — Forum International (Kirchzarten, Germany) (represented by: G. Wilke, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Ulrich Schwalb (Cologne, Germany)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: EU figurative mark IAK — EU trade mark No 9 843 533

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 11 June 2018 in Case R 1511/2017-4

Form of order sought

The applicant claims that the Court should:

| — | alter the contested decision such that the application for a declaration of invalidity is dismissed in its entirety; |
| --- | --- |

—

alter the contested decision such that the application for a declaration of invalidity is dismissed in its entirety;

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

—

order EUIPO to pay the costs.

Plea in law

| — | Infringement of Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
| --- | --- |

—

Infringement of Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.

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| 1.10.2018 | EN | Official Journal of the European Union | C 352/47 |
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1.10.2018

EN

Official Journal of the European Union

C 352/47

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Action brought on 20 August 2018 — ZPC Flis v EUIPO — Aldi Einkauf (Happy Moreno choco)

(Case T-498/18)

(2018/C 352/57)

Language of the case: English

Parties

Applicant: ZPC Flis sp.j. (Radziejowice, Poland) (represented by: M. Kondrat, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Aldi Einkauf GmbH & Co. OHG (Essen, Germany)

Details of the proceedings before EUIPO

Applicant of the trade mark at issue: Applicant before the General Court

Trade mark at issue: Application for European Union figurative mark Happy Moreno choco — Application for registration No 15 028 087

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 31 May 2018 in Case R 1464/2017-1

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision and refer the case back to the EUIPO for reconsideration;
  or |
| --- | --- |

—

annul the contested decision and refer the case back to the EUIPO for reconsideration;

or

| — | alter the contested decision by stating that there are no relative grounds for refusal of registration of the EUTMA 015028087 ‘Happy Moreno choco’ for all goods in classes 30 and 35 and the trademark shall be registered; |
| --- | --- |

—

alter the contested decision by stating that there are no relative grounds for refusal of registration of the EUTMA 015028087 ‘Happy Moreno choco’ for all goods in classes 30 and 35 and the trademark shall be registered;

| — | award the costs in the Applicant’s favour. |
| --- | --- |

—

award the costs in the Applicant’s favour.

Pleas in law

| — | Infringement of Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council; |
| --- | --- |

—

Infringement of Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

| — | Infringement of the principle of the protection of legitimate expectations and the principle of legal certainty. |
| --- | --- |

—

Infringement of the principle of the protection of legitimate expectations and the principle of legal certainty.

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