# Official Journal C 401/4 Oc

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 401 |
| | |
| English edition | Information and Notices | Volume 644 October 2021 |

ISSN 1977-091X

Official Journal

of the European Union

C 401

English edition

Information and Notices

Volume 644 October 2021

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| Contents | page |
| --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2021/C 401/01 | 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

2021/C 401/01

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 |
| 2021/C 401/02 | Case C-375/21: Request for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 17 June 2021 — Sdruzhenie Za Zemiata — dostap do pravosadie and Others, The Green Tank — grazhdansko sdruzhenie s nestopanska tsel — Hellenic Republic, NS v Izpalnitelen direktor na Izpalnitelna agentsia po okolna sreda, TETS Maritsa-iztok 2 EAD | 2 |
| 2021/C 401/03 | Case C-403/21: Request for a preliminary ruling from the Consiliul Național de Soluționare a Contestațiilor (Romania) lodged on 29 June 2021 — SC NV Construct SRL v Județul Timiș | 3 |
| 2021/C 401/04 | Case C-409/21: Request for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 2 July 2021 — DELID EOOD v Izpalnitelen direktor na Darzhaven fond Zemedelie | 4 |
| 2021/C 401/05 | Case C-412/21: Request for a preliminary ruling from the Tribunalul Satu Mare (Romania) lodged on 6 July 2021 — Dual Prod SRL v Direcția Generală Regională a Finanțelor Publice Cluj-Napoca — Comisia regională pentru autorizarea operatorilor de produse supuse accizelor armonizate | 5 |
| 2021/C 401/06 | Case C-431/21: Request for a preliminary ruling from the Finanzgericht Bremen (Germany) lodged on 15 July 2021 — X GmbH & Co. KG v Finanzamt Bremen | 5 |
| 2021/C 401/07 | Case C-493/21: Reference for a preliminary ruling from the Court of Appeal (Ireland) made on 11 August 2021 — K.M. v The Director of Public Prosecutions | 6 |
| | General Court |
| 2021/C 401/08 | Case T-500/19: Order of the General Court of 20 July 2021 — Coravin v EUIPO — Cora (CORAVIN) (EU trade mark — Invalidity proceedings — Declaration of revocation of the earlier national mark on which the contested decision is based — No need to adjudicate) | 7 |
| 2021/C 401/09 | Case T-249/21 R: Order of the President of the General Court of 28 July 2021 — SN v Parliament (Interim measures — Member of the European Parliament — Recovery of allowances paid by way of reimbursement of parliamentary assistance expenses — Application for suspension of operation of a measure — Failure to comply with procedural requirements — Inadmissibility — No urgency) | 7 |
| 2021/C 401/10 | Case T-377/21: Action brought on 5 July 2021 — Eurecna v Commission | 8 |
| 2021/C 401/11 | Case T-379/21: Action brought on 5 July 2021 — Vendrame v Commission | 9 |
| 2021/C 401/12 | Case T-411/21: Action brought on 8 July 2021 — Alfa Acciai v Commission | 10 |
| 2021/C 401/13 | Case T-414/21: Action brought on 10 July 2021 — Ferriere Nord v Commission | 11 |
| 2021/C 401/14 | Case T-415/21: Action brought on 10 July 2021 — Banca Popolare di Bari v Commission | 13 |
| 2021/C 401/15 | Case T-437/21: Action brought on 20 July 2021 — Greenwich Polo Club v EUIPO — Lifestyle Equities (GREENWICH POLO CLUB) | 13 |
| 2021/C 401/16 | Case T-450/21: Action brought on 30 July 2021 — Spain v Commission | 14 |
| 2021/C 401/17 | Case T-485/21: Action brought on 9 August 2021 — BNetzA v ACER | 15 |
| 2021/C 401/18 | Case T-491/21: Action brought on 11 August 2021 — Hungary v Commission | 17 |
| 2021/C 401/19 | Case T-495/21: Action brought on 13 August 2021 — Spain v Commission | 18 |
| 2021/C 401/20 | Case T-505/21: Action brought on 16 August 2021 — Tinnus Enterprises v EUIPO — Mystic Products Import & Export (Fluid distribution equipment) | 19 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2021/C 401/02

Case C-375/21: Request for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 17 June 2021 — Sdruzhenie Za Zemiata — dostap do pravosadie and Others, The Green Tank — grazhdansko sdruzhenie s nestopanska tsel — Hellenic Republic, NS v Izpalnitelen direktor na Izpalnitelna agentsia po okolna sreda, TETS Maritsa-iztok 2 EAD

2

2021/C 401/03

Case C-403/21: Request for a preliminary ruling from the Consiliul Național de Soluționare a Contestațiilor (Romania) lodged on 29 June 2021 — SC NV Construct SRL v Județul Timiș

3

2021/C 401/04

Case C-409/21: Request for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 2 July 2021 — DELID EOOD v Izpalnitelen direktor na Darzhaven fond Zemedelie

4

2021/C 401/05

Case C-412/21: Request for a preliminary ruling from the Tribunalul Satu Mare (Romania) lodged on 6 July 2021 — Dual Prod SRL v Direcția Generală Regională a Finanțelor Publice Cluj-Napoca — Comisia regională pentru autorizarea operatorilor de produse supuse accizelor armonizate

5

2021/C 401/06

Case C-431/21: Request for a preliminary ruling from the Finanzgericht Bremen (Germany) lodged on 15 July 2021 — X GmbH & Co. KG v Finanzamt Bremen

5

2021/C 401/07

Case C-493/21: Reference for a preliminary ruling from the Court of Appeal (Ireland) made on 11 August 2021 — K.M. v The Director of Public Prosecutions

6

General Court

2021/C 401/08

Case T-500/19: Order of the General Court of 20 July 2021 — Coravin v EUIPO — Cora (CORAVIN) (EU trade mark — Invalidity proceedings — Declaration of revocation of the earlier national mark on which the contested decision is based — No need to adjudicate)

7

2021/C 401/09

Case T-249/21 R: Order of the President of the General Court of 28 July 2021 — SN v Parliament (Interim measures — Member of the European Parliament — Recovery of allowances paid by way of reimbursement of parliamentary assistance expenses — Application for suspension of operation of a measure — Failure to comply with procedural requirements — Inadmissibility — No urgency)

7

2021/C 401/10

Case T-377/21: Action brought on 5 July 2021 — Eurecna v Commission

8

2021/C 401/11

Case T-379/21: Action brought on 5 July 2021 — Vendrame v Commission

9

2021/C 401/12

Case T-411/21: Action brought on 8 July 2021 — Alfa Acciai v Commission

10

2021/C 401/13

Case T-414/21: Action brought on 10 July 2021 — Ferriere Nord v Commission

11

2021/C 401/14

Case T-415/21: Action brought on 10 July 2021 — Banca Popolare di Bari v Commission

13

2021/C 401/15

Case T-437/21: Action brought on 20 July 2021 — Greenwich Polo Club v EUIPO — Lifestyle Equities (GREENWICH POLO CLUB)

13

2021/C 401/16

Case T-450/21: Action brought on 30 July 2021 — Spain v Commission

14

2021/C 401/17

Case T-485/21: Action brought on 9 August 2021 — BNetzA v ACER

15

2021/C 401/18

Case T-491/21: Action brought on 11 August 2021 — Hungary v Commission

17

2021/C 401/19

Case T-495/21: Action brought on 13 August 2021 — Spain v Commission

18

2021/C 401/20

Case T-505/21: Action brought on 16 August 2021 — Tinnus Enterprises v EUIPO — Mystic Products Import & Export (Fluid distribution equipment)

19

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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

| 4.10.2021 | EN | Official Journal of the European Union | C 401/1 |
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4.10.2021

EN

Official Journal of the European Union

C 401/1

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

(2021/C 401/01)

Last publication

OJ C 391, 27.9.2021

Past publications

OJ C 382, 20.9.2021

OJ C 368, 13.9.2021

OJ C 357, 6.9.2021

OJ C 349, 30.8.2021

OJ C 338, 23.8.2021

OJ C 329, 16.8.2021

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 4.10.2021 | EN | Official Journal of the European Union | C 401/2 |
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4.10.2021

EN

Official Journal of the European Union

C 401/2

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Request for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 17 June 2021 — Sdruzhenie ‘Za Zemiata — dostap do pravosadie’ and Others, ‘The Green Tank — grazhdansko sdruzhenie s nestopanska tsel’ — Hellenic Republic, NS v Izpalnitelen direktor na Izpalnitelna agentsia po okolna sreda, TETS Maritsa-iztok 2 EAD

(Case C-375/21)

(2021/C 401/02)

Language of the case: Bulgarian

Referring court

Varhoven administrativen sad

Parties to the main proceedings

Appellants in cassation: Sdruzhenie ‘Za Zemiata — dostap do pravosadie’ and Others, ‘The Green Tank — grazhdansko sdruzhenie s nestopanska tsel’ — Hellenic Republic, NS

Respondents in the appeal in cassation: Izpalnitelen direktor na Izpalnitelna agentsia po okolna sreda, TETS Maritsa-iztok 2 EAD

Questions referred

| 1. | Is Article 4(3) TEU, read in conjunction with Article 18 of Directive 2010/75/EU (1) and Articles 13 and 23 of Directive 2008/50/EC, (2) to be interpreted as meaning that, when considering a request for a derogation under Article 15(4) of Directive 2010/75/EU, the competent authority must assess whether the granting of the derogation may jeopardise compliance with the environmental quality standards, taking into account all the relevant scientific data on pollution, including the measures under the relevant air quality programme in a given zone or agglomeration pursuant to Article 23 of Directive 2008/50/EC? |
| --- | --- |

1.

Is Article 4(3) TEU, read in conjunction with Article 18 of Directive 2010/75/EU (1) and Articles 13 and 23 of Directive 2008/50/EC, (2) to be interpreted as meaning that, when considering a request for a derogation under Article 15(4) of Directive 2010/75/EU, the competent authority must assess whether the granting of the derogation may jeopardise compliance with the environmental quality standards, taking into account all the relevant scientific data on pollution, including the measures under the relevant air quality programme in a given zone or agglomeration pursuant to Article 23 of Directive 2008/50/EC?

| 2. | Is Article 4(3) TEU, read in conjunction with Article 18 of Directive 2010/75/EU and Articles 13 and 23 of Directive 2008/50/EC, to be interpreted as meaning that, when considering a request for a derogation within the meaning of Article 15(4) of Directive 2010/75/EU, the competent authority must refrain from setting less stringent emission limit values for air pollutants from an installation in so far as such a derogation would be contrary to the measures laid down in the relevant air quality programme adopted in the given zone or agglomeration pursuant to Article 23 of Directive 2008/50/EC and could jeopardise achieving the objective of keeping the period of exceedance of the air quality standards as short as possible? |
| --- | --- |

2.

Is Article 4(3) TEU, read in conjunction with Article 18 of Directive 2010/75/EU and Articles 13 and 23 of Directive 2008/50/EC, to be interpreted as meaning that, when considering a request for a derogation within the meaning of Article 15(4) of Directive 2010/75/EU, the competent authority must refrain from setting less stringent emission limit values for air pollutants from an installation in so far as such a derogation would be contrary to the measures laid down in the relevant air quality programme adopted in the given zone or agglomeration pursuant to Article 23 of Directive 2008/50/EC and could jeopardise achieving the objective of keeping the period of exceedance of the air quality standards as short as possible?

| 3. | Is Article 4(3) TEU, read in conjunction with Article 18 of Directive 2010/75/EU and Article 13 of Directive 2008/50/EC, to be interpreted as meaning that, when considering a request for a derogation under Article 15(4) of Directive 2010/75/EU, the competent authority must assess whether, taking into account all the relevant scientific data on pollution, including the cumulative effect together with other sources of the pollutant concerned, the setting of less stringent emission limit values for air pollutants from an installation would contribute to the exceedance of the relevant emission limit values set in a given zone or agglomeration in accordance with Article 13 of Directive 2008/50/EC, and, if so, whether it must refrain from granting a derogation which would jeopardise the attainment of the environmental quality standards? |
| --- | --- |

3.

Is Article 4(3) TEU, read in conjunction with Article 18 of Directive 2010/75/EU and Article 13 of Directive 2008/50/EC, to be interpreted as meaning that, when considering a request for a derogation under Article 15(4) of Directive 2010/75/EU, the competent authority must assess whether, taking into account all the relevant scientific data on pollution, including the cumulative effect together with other sources of the pollutant concerned, the setting of less stringent emission limit values for air pollutants from an installation would contribute to the exceedance of the relevant emission limit values set in a given zone or agglomeration in accordance with Article 13 of Directive 2008/50/EC, and, if so, whether it must refrain from granting a derogation which would jeopardise the attainment of the environmental quality standards?

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(1)  Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (OJ 2010 L 334, p. 17).

(2)  Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (OJ 2008 L 152, p. 1).

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| 4.10.2021 | EN | Official Journal of the European Union | C 401/3 |
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4.10.2021

EN

Official Journal of the European Union

C 401/3

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Request for a preliminary ruling from the Consiliul Național de Soluționare a Contestațiilor (Romania) lodged on 29 June 2021 — SC NV Construct SRL v Județul Timiș

(Case C-403/21)

(2021/C 401/03)

Language of the case: Romanian

Referring court

Consiliul Național de Soluționare a Contestațiilor

Parties to the main proceedings

Applicant: SC NV Construct SRL

Contracting authority: Județul Timiș

Intervening party: SC Proiect Construct Regiunea Transilvania SRL

Questions referred

| 1. | Must Article 58 of Directive [2014/24], (1) the principal of proportionality and the principle of liability be interpreted as meaning that the contracting authority has the right to lay down the criteria relating to technical capacity, that is to say, to determine whether or not it is necessary to include in the procurement documents criteria relating to technical and professional capacity and the capacity to carry out the technical and professional activity arising from the provisions of special laws, in respect of activities of minor importance in the contract? |
| --- | --- |

1.

Must Article 58 of Directive [2014/24], (1) the principal of proportionality and the principle of liability be interpreted as meaning that the contracting authority has the right to lay down the criteria relating to technical capacity, that is to say, to determine whether or not it is necessary to include in the procurement documents criteria relating to technical and professional capacity and the capacity to carry out the technical and professional activity arising from the provisions of special laws, in respect of activities of minor importance in the contract?

| 2. | Do the principles of transparency and proportionality preclude the automatic supplementation of the procurement documents with qualification criteria arising from special laws applicable to activities relating to the contract to be awarded which were not set out in the procurement documents and which the contracting authority decided not to impose on the economic operators? |
| --- | --- |

2.

Do the principles of transparency and proportionality preclude the automatic supplementation of the procurement documents with qualification criteria arising from special laws applicable to activities relating to the contract to be awarded which were not set out in the procurement documents and which the contracting authority decided not to impose on the economic operators?

| 3. | Do Article 63 of the directive and the principle of proportionality preclude the exclusion from the [tendering] procedure of a tenderer who has not named an operator as a subcontractor for the purpose of demonstrating compliance with certain criteria relating to technical and professional capacity and the capacity to carry out the technical and professional activity arising from the provisions of special laws not set out in the procurement documents in the case where the tenderer in question has chosen a different contractual form of involving specialists in the contract, that is to say [a] contract for the supply/provision of services, or has submitted [a] declaration of willingness on their part? Does the right to determine its organisation and contractual relations within the group lie with the economic operator and is it possible also to involve certain providers/suppliers in the contract in the case where the provider is not one of the entities on whose capacity the tenderer intends to rely in order to demonstrate compliance with the relevant criteria? |
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3.

Do Article 63 of the directive and the principle of proportionality preclude the exclusion from the [tendering] procedure of a tenderer who has not named an operator as a subcontractor for the purpose of demonstrating compliance with certain criteria relating to technical and professional capacity and the capacity to carry out the technical and professional activity arising from the provisions of special laws not set out in the procurement documents in the case where the tenderer in question has chosen a different contractual form of involving specialists in the contract, that is to say [a] contract for the supply/provision of services, or has submitted [a] declaration of willingness on their part? Does the right to determine its organisation and contractual relations within the group lie with the economic operator and is it possible also to involve certain providers/suppliers in the contract in the case where the provider is not one of the entities on whose capacity the tenderer intends to rely in order to demonstrate compliance with the relevant criteria?

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(1)  Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).

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| 4.10.2021 | EN | Official Journal of the European Union | C 401/4 |
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4.10.2021

EN

Official Journal of the European Union

C 401/4

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Request for a preliminary ruling from the Varhoven administrativen sad (Bulgaria) lodged on 2 July 2021 — DELID EOOD v Izpalnitelen direktor na Darzhaven fond ‘Zemedelie’

(Case C-409/21)

(2021/C 401/04)

Language of the case: Bulgarian

Referring court

Varhoven administrativen sad

Parties to the main proceedings

Appellant in cassation: DELID EOOD

Respondent in the appeal in cassation: Izpalnitelen direktor na Darzhaven fond ‘Zemedelie’

Questions referred

| 1. | Is it consistent with Article 17 of Regulation No 1305/2013 (1) for a national provision such as Article 26 of the Naredba No 9/2015, which establishes an eligibility condition for applicants for financial aid under Submeasure 4.1 ‘Investments in agricultural holdings’ of the measure ‘Investments in physical assets’ of the Rural Development Programme for the period 2014 — 2020, to require that a certificate of registration of a livestock facility in the name of the applicant must be submitted as proof of the exercise of a livestock activity carried out prior to the application for financing in a holding set up by the applicant within the meaning of Article 4 of Regulation No 1307/2013, (2) or is it sufficient for the purposes of the regulation for the farmer to prove that he or she is in the process of obtaining the required registration of a livestock facility in his or her name? |
| --- | --- |

1.

Is it consistent with Article 17 of Regulation No 1305/2013 (1) for a national provision such as Article 26 of the Naredba No 9/2015, which establishes an eligibility condition for applicants for financial aid under Submeasure 4.1 ‘Investments in agricultural holdings’ of the measure ‘Investments in physical assets’ of the Rural Development Programme for the period 2014 — 2020, to require that a certificate of registration of a livestock facility in the name of the applicant must be submitted as proof of the exercise of a livestock activity carried out prior to the application for financing in a holding set up by the applicant within the meaning of Article 4 of Regulation No 1307/2013, (2) or is it sufficient for the purposes of the regulation for the farmer to prove that he or she is in the process of obtaining the required registration of a livestock facility in his or her name?

| 2. | Is a condition in a national provision such as Article 8(1)(2) of Naredba (Ordinance) No 9 of 21 March 2015 concerning the application of Submeasure 4.1 ‘Investments in agricultural holdings’ of Measure 4 ‘Investments in physical assets’ of the Rural Development Programme for the period 2014 — 2020, according to which applicants must provide evidence of a minimum standard output for the agricultural holding concerned that may not be less than the equivalent in leva (BGN) of EUR 8 000 at the time of the application for aid, to be regarded as compatible with the objective of the support under the measure ‘Investments in physical assets’ pursuant to Article 17 of Regulation No 1305/201[3], with the European Union’s rural development priorities under Article 5 of Regulation No 1305/2013 and with the concept of standard output of a holding within the meaning of the repealed Commission Regulation No 1242/2008 (3) of 8 December 2008 establishing a Community typology for agricultural holdings? |
| --- | --- |

2.

Is a condition in a national provision such as Article 8(1)(2) of Naredba (Ordinance) No 9 of 21 March 2015 concerning the application of Submeasure 4.1 ‘Investments in agricultural holdings’ of Measure 4 ‘Investments in physical assets’ of the Rural Development Programme for the period 2014 — 2020, according to which applicants must provide evidence of a minimum standard output for the agricultural holding concerned that may not be less than the equivalent in leva (BGN) of EUR 8 000 at the time of the application for aid, to be regarded as compatible with the objective of the support under the measure ‘Investments in physical assets’ pursuant to Article 17 of Regulation No 1305/201[3], with the European Union’s rural development priorities under Article 5 of Regulation No 1305/2013 and with the concept of standard output of a holding within the meaning of the repealed Commission Regulation No 1242/2008 (3) of 8 December 2008 establishing a Community typology for agricultural holdings?

| 3. | If the second question is answered in the affirmative, is it to be assumed that farmers that are newly registered at the time of the application for aid under the ‘Investments in physical assets’ measure are to be excluded from financial support under Regulation No 1306/2013? (4) |
| --- | --- |

3.

If the second question is answered in the affirmative, is it to be assumed that farmers that are newly registered at the time of the application for aid under the ‘Investments in physical assets’ measure are to be excluded from financial support under Regulation No 1306/2013? (4)

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(1)  Regulation (EU) No 1305/2013 of the European Parliament and of the Council of 17 December 2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) No 1698/2005 (OJ 2013 L 347, p. 487).

(2)  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 (OJ 2013 L 347, p. 608).

(3)  Commission Regulation (EC) No 1242/2008 of 8 December 2008 establishing a Community typology for agricultural holdings (OJ 2008 L 335, p. 3).

(4)  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 (OJ 2013 L 347, p. 549).

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| 4.10.2021 | EN | Official Journal of the European Union | C 401/5 |
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4.10.2021

EN

Official Journal of the European Union

C 401/5

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Request for a preliminary ruling from the Tribunalul Satu Mare (Romania) lodged on 6 July 2021 — Dual Prod SRL v Direcția Generală Regională a Finanțelor Publice Cluj-Napoca — Comisia regională pentru autorizarea operatorilor de produse supuse accizelor armonizate

(Case C-412/21)

(2021/C 401/05)

Language of the case: Romanian

Referring court

Tribunalul Satu Mare

Parties to the main proceedings

Applicant: Dual Prod SRL

Defendant: Direcția Generală Regională a Finanțelor Publice Cluj-Napoca — Comisia regională pentru autorizarea operatorilor de produse supuse accizelor armonizate

Questions referred

| 1. | Is Article 48(1) of the Charter of Fundamental Rights of the European Union, which concerns the principle of the presumption of innocence, read in conjunction with Article 16(1) of Directive 2008/118/EC, (1) to be interpreted as precluding a legal situation, such as that at issue in the present case, in which an administrative measure suspending an authorisation to operate as a producer of alcohol may be adopted on the basis of mere presumptions which are the subject of an ongoing criminal investigation, without any final conviction in criminal proceedings having been handed down? |
| --- | --- |

1.

Is Article 48(1) of the Charter of Fundamental Rights of the European Union, which concerns the principle of the presumption of innocence, read in conjunction with Article 16(1) of Directive 2008/118/EC, (1) to be interpreted as precluding a legal situation, such as that at issue in the present case, in which an administrative measure suspending an authorisation to operate as a producer of alcohol may be adopted on the basis of mere presumptions which are the subject of an ongoing criminal investigation, without any final conviction in criminal proceedings having been handed down?

| 2. | Is Article 50 of the Charter of Fundamental Rights of the European Union, which concerns the principle non bis in idem, read in conjunction with Article 16(1) of Directive 2008/118/EC, to be interpreted as precluding a legal situation, such as that at issue in the present case, in which two penalties of the same nature (suspension of authorisation to operate as a producer of alcohol), differing only in the duration of their effect, are imposed on the same person in respect of the same facts? |
| --- | --- |

2.

Is Article 50 of the Charter of Fundamental Rights of the European Union, which concerns the principle non bis in idem, read in conjunction with Article 16(1) of Directive 2008/118/EC, to be interpreted as precluding a legal situation, such as that at issue in the present case, in which two penalties of the same nature (suspension of authorisation to operate as a producer of alcohol), differing only in the duration of their effect, are imposed on the same person in respect of the same facts?

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(1)  Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12).

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| 4.10.2021 | EN | Official Journal of the European Union | C 401/5 |
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4.10.2021

EN

Official Journal of the European Union

C 401/5

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Request for a preliminary ruling from the Finanzgericht Bremen (Germany) lodged on 15 July 2021 — X GmbH & Co. KG v Finanzamt Bremen

(Case C-431/21)

(2021/C 401/06)

Language of the case: German

Referring court

Finanzgericht Bremen

Parties to the main proceedings

Applicant: X GmbH & Co. KG

Defendant: Finanzamt Bremen

Question referred

Must Article 43 of the EC Treaty and Article 49 TFEU, which guarantee the freedom of establishment (or, respectively, Article 49 of the EC Treaty and Article 56 TFEU, which guarantee the freedom to provide services), be interpreted as precluding national legislation under which, in situations involving transactions with a foreign element, the taxpayer must keep records on the nature and content of his or her business relations with related parties, including the economic and legal bases for an arm’s length agreement on prices and other terms and conditions with the related parties, and under which, where the taxpayer fails to submit those records when requested to do so by the tax authority, or where the records submitted are fundamentally unusable, not only is there a rebuttable presumption that his or her income subject to tax domestically, which such records serve to determine, is higher than the income that he or she has declared, and, if in such cases the tax authority is required to make an estimate and such income can be determined only within a certain range, in particular only on the basis of price bands, the upper value of that range may be taken as the basis to the detriment of the taxpayer, but, in addition, a surcharge is to be imposed which is at least 5 per cent and at most 10 per cent of the excess income determined, but not less than EUR 5 000, and which, in the event that usable records are submitted late, is up to EUR 1 000 000, but not less than EUR 100 for each full day of delay, whereby the imposition of a surcharge is to be waived only if the non-compliance with the record-keeping obligations appears to be excusable or if any fault involved is only minor?

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| 4.10.2021 | EN | Official Journal of the European Union | C 401/6 |
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4.10.2021

EN

Official Journal of the European Union

C 401/6

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Reference for a preliminary ruling from the Court of Appeal (Ireland) made on 11 August 2021 — K.M. v The Director of Public Prosecutions

(Case C-493/21)

(2021/C 401/07)

Language of the case: English

Referring court

Court of Appeal

Parties to the main proceedings

Applicant: K.M.

Defendant: The Director of Public Prosecutions

Questions referred

| 1. | Do the terms of Article 89 and/or 90 of the Regulation (1), and the requirements of proportionality under the Charter and EU law, require the sentencing court to have a discretion to adjust, modulate or mitigate the extent of the forfeiture order of the catch and gear in particular having regard to the circumstances referred to in Articles 89 and 90 of Regulation (EC) 1224/2009? |
| --- | --- |

1.

Do the terms of Article 89 and/or 90 of the Regulation (1), and the requirements of proportionality under the Charter and EU law, require the sentencing court to have a discretion to adjust, modulate or mitigate the extent of the forfeiture order of the catch and gear in particular having regard to the circumstances referred to in Articles 89 and 90 of Regulation (EC) 1224/2009?

| 2. | Having regard to the potential impact on the livelihood of a Master as a consequence of an automatic mandatory forfeiture of all catch and gear, can a provision of national law such as section 28(5)(b) (2) which does not allow for a national court to examine any impact on the right to earn a livelihood of a person convicted on indictment of an offence contrary to that section and the Regulation (save in the context of considering what fine might be appropriate) be considered compatible with the terms of the Regulation, the Charter and EU law, having regard to the fundamental right of the Master to exercise his or her profession? |
| --- | --- |

2.

Having regard to the potential impact on the livelihood of a Master as a consequence of an automatic mandatory forfeiture of all catch and gear, can a provision of national law such as section 28(5)(b) (2) which does not allow for a national court to examine any impact on the right to earn a livelihood of a person convicted on indictment of an offence contrary to that section and the Regulation (save in the context of considering what fine might be appropriate) be considered compatible with the terms of the Regulation, the Charter and EU law, having regard to the fundamental right of the Master to exercise his or her profession?

---

(1)  Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ 2009, L 343, p. 1).

(2)  of the Sea Fisheries and Maritime Jurisdiction Act 2006

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General Court

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Order of the General Court of 20 July 2021 — Coravin v EUIPO — Cora (CORAVIN)

(Case T-500/19) (1)

(EU trade mark - Invalidity proceedings - Declaration of revocation of the earlier national mark on which the contested decision is based - No need to adjudicate)

(2021/C 401/08)

Language of the case: French

Parties

Applicant: Coravin, Inc. (Wilmington, Delaware, United States) (represented by: F. Valentin, lawyer)

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

Other party to the proceedings before the Board of Appeal of EUIPO intervening before the General Court: Cora (Marne-la-Vallée, France) (represented by: M. Georges-Picot, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 12 April 2019 (affaire R 2385/2016-1), relating to invalidity proceedings between Cora and Coravin.

Operative part of the order

| 1. | There is no longer any need to adjudicate on the action. |
| --- | --- |

1.

There is no longer any need to adjudicate on the action.

| 2. | The parties shall each bear their own costs. |
| --- | --- |

2.

The parties shall each bear their own costs.

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(1)  OJ C 288, 26.8.2019.

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Order of the President of the General Court of 28 July 2021 — SN v Parliament

(Case T-249/21 R)

(Interim measures - Member of the European Parliament - Recovery of allowances paid by way of reimbursement of parliamentary assistance expenses - Application for suspension of operation of a measure - Failure to comply with procedural requirements - Inadmissibility - No urgency)

(2021/C 401/09)

Language of the case: English

Parties

Applicant: SN (represented by: P. Eleftheriadis, Barrister)

Defendant: European Parliament (represented by: N. Görlitz and M. Ecker, acting as Agents)

Re:

Application under Articles 278 and 279 TFEU for suspension of operation of the decision of the Parliament of 21 December 2020 concerning the recovery of the sum of EUR 196 199,84 unduly paid and debit note No 7010000021 of 15 January 2021 issued pursuant to that decision.

Operative part of the order

| 1. | The application for interim measures is dismissed. |
| --- | --- |

1.

The application for interim measures is dismissed.

| 2. | The costs are reserved. |
| --- | --- |

2.

The costs are reserved.

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Action brought on 5 July 2021 — Eurecna v Commission

(Case T-377/21)

(2021/C 401/10)

Language of the case: Italian

Parties

Applicant: Eurecna SpA (Venice, Italy) (represented by: R. Sciaudone, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Commission of 26 April 2021 (‘the contested decision’) by which the Commission, confirming the previous refusal decision of 3 March 2021, rejected the applicant’s request for access to the final report and its annexes drafted by the European Anti-Fraud Office (OLAF) following investigation OC/2019/0766; |
| --- | --- |

—

annul the decision of the Commission of 26 April 2021 (‘the contested decision’) by which the Commission, confirming the previous refusal decision of 3 March 2021, rejected the applicant’s request for access to the final report and its annexes drafted by the European Anti-Fraud Office (OLAF) following investigation OC/2019/0766;

| — | order the Commission to produce the OLAF report and its annexes; |
| --- | --- |

—

order the Commission to produce the OLAF report and its annexes;

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

—

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

Pleas in law and main arguments

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

| 1. | First plea in law, alleging incorrect interpretation of the consequences of access to the OLAF report.
  The applicant claims in this regard that the contested decision must be annulled in so far as access to the OLAF report could not, according to Articles 10(1) and 2(4) of Regulation No 1049/2001, (1) be made available in the ‘public domain’. |
| --- | --- |

1.

First plea in law, alleging incorrect interpretation of the consequences of access to the OLAF report.

The applicant claims in this regard that the contested decision must be annulled in so far as access to the OLAF report could not, according to Articles 10(1) and 2(4) of Regulation No 1049/2001, (1) be made available in the ‘public domain’.

| 2. | Second plea in law, alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001.
  The applicant claims in this regard that the defendant infringed the third indent of Article 4(2) of Regulation No 1049/2001, as interpreted by the case-law, according to which, when the addressee of the OLAF report intends to adopt acts detrimental to the persons concerned, the latter have the right to access the report in question. |
| --- | --- |

2.

Second plea in law, alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001.

The applicant claims in this regard that the defendant infringed the third indent of Article 4(2) of Regulation No 1049/2001, as interpreted by the case-law, according to which, when the addressee of the OLAF report intends to adopt acts detrimental to the persons concerned, the latter have the right to access the report in question.

| 3. | Third plea in law, alleging infringement of Article 4(1)(b) of Regulation No 1049/2001 and of the principle of proportionality.
  The applicant claims in this regard that he never requested the transfer of personal information relating to physical persons, which is why any personal information potentially present in the report could very well have been protected by means of redaction of those data, which is a very common process. |
| --- | --- |

3.

Third plea in law, alleging infringement of Article 4(1)(b) of Regulation No 1049/2001 and of the principle of proportionality.

The applicant claims in this regard that he never requested the transfer of personal information relating to physical persons, which is why any personal information potentially present in the report could very well have been protected by means of redaction of those data, which is a very common process.

| 4. | Fourth plea in law, alleging incorrect application and interpretation of Article 4(6) of Regulation No 1049/2001.
  The applicant claims in this regard that the contested decision must be annulled because the defendant did not, in reality, verify, in fact, whether partial access could be granted. |
| --- | --- |

4.

Fourth plea in law, alleging incorrect application and interpretation of Article 4(6) of Regulation No 1049/2001.

The applicant claims in this regard that the contested decision must be annulled because the defendant did not, in reality, verify, in fact, whether partial access could be granted.

| 5. | Fifth plea in law, alleging infringement of the obligation to state reasons.
  The applicant claims in this regard that the defendant did not provide any statement of reasons regarding the applicability of the exception provided for in Article 4(3) of Regulation No 1049/2001. |
| --- | --- |

5.

Fifth plea in law, alleging infringement of the obligation to state reasons.

The applicant claims in this regard that the defendant did not provide any statement of reasons regarding the applicability of the exception provided for in Article 4(3) of Regulation No 1049/2001.

| 6. | Sixth plea in law, alleging incorrect exclusion of a public interest in disclosure.
  The applicant claims in this regard that the defendant incorrectly interpreted the rights of the defence as a mere interest of a party, failing to consider that, in order to reply to the requests for financial repayment made by the Directorate-General for International Cooperation and Development (DG DEVCO), the applicant needed to access the OLAF report. |
| --- | --- |

6.

Sixth plea in law, alleging incorrect exclusion of a public interest in disclosure.

The applicant claims in this regard that the defendant incorrectly interpreted the rights of the defence as a mere interest of a party, failing to consider that, in order to reply to the requests for financial repayment made by the Directorate-General for International Cooperation and Development (DG DEVCO), the applicant needed to access the OLAF report.

---

(1)  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. 43).

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Action brought on 5 July 2021 — Vendrame v Commission

(Case T-379/21)

(2021/C 401/11)

Language of the case: Italian

Parties

Applicant: Michele Vendrame (Venice, Italy) (represented by: R. Sciaudone, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Commission of 26 April 2021 (‘the contested decision’) by which the Commission, confirming the previous refusal decision of 3 March 2021, rejected the applicant’s request for access to the final report and its annexes drafted by the European Anti-Fraud Office (OLAF) following investigation OC/2019/0766; |
| --- | --- |

—

annul the decision of the Commission of 26 April 2021 (‘the contested decision’) by which the Commission, confirming the previous refusal decision of 3 March 2021, rejected the applicant’s request for access to the final report and its annexes drafted by the European Anti-Fraud Office (OLAF) following investigation OC/2019/0766;

| — | order the Commission to produce the OLAF report and its annexes; |
| --- | --- |

—

order the Commission to produce the OLAF report and its annexes;

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

—

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

Pleas in law and main arguments

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

| 1. | First plea in law, alleging incorrect interpretation of the consequences of access to the OLAF report.
  The applicant claims in this regard that the contested decision must be annulled in so far as access to the OLAF report could not, according to Articles 10(1) and 2(4) of Regulation No 1049/2001, (1) be made available in the ‘public domain’. |
| --- | --- |

1.

First plea in law, alleging incorrect interpretation of the consequences of access to the OLAF report.

The applicant claims in this regard that the contested decision must be annulled in so far as access to the OLAF report could not, according to Articles 10(1) and 2(4) of Regulation No 1049/2001, (1) be made available in the ‘public domain’.

| 2. | Second plea in law, alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001.
  The applicant claims in this regard that the defendant infringed the third indent of Article 4(2) of Regulation No 1049/2001, as interpreted by the case-law, according to which, when the addressee of the OLAF report intends to adopt acts detrimental to the persons concerned, the latter have the right to access the report in question. |
| --- | --- |

2.

Second plea in law, alleging infringement of the third indent of Article 4(2) of Regulation No 1049/2001.

The applicant claims in this regard that the defendant infringed the third indent of Article 4(2) of Regulation No 1049/2001, as interpreted by the case-law, according to which, when the addressee of the OLAF report intends to adopt acts detrimental to the persons concerned, the latter have the right to access the report in question.

| 3. | Third plea in law, alleging infringement of Article 4(1)(b) of Regulation No 1049/2001 and of the principle of proportionality.
  The applicant claims in this regard that he never requested the transfer of personal information relating to physical persons, which is why any personal information potentially present in the report could very well have been protected by means of redaction of those data, which is a very common process. |
| --- | --- |

3.

Third plea in law, alleging infringement of Article 4(1)(b) of Regulation No 1049/2001 and of the principle of proportionality.

The applicant claims in this regard that he never requested the transfer of personal information relating to physical persons, which is why any personal information potentially present in the report could very well have been protected by means of redaction of those data, which is a very common process.

| 4. | Fourth plea in law, alleging incorrect application and interpretation of Article 4(6) of Regulation No 1049/2001.
  The applicant claims in this regard that the contested decision must be annulled because the defendant did not, in reality, verify, in fact, whether partial access could be granted. |
| --- | --- |

4.

Fourth plea in law, alleging incorrect application and interpretation of Article 4(6) of Regulation No 1049/2001.

The applicant claims in this regard that the contested decision must be annulled because the defendant did not, in reality, verify, in fact, whether partial access could be granted.

| 5. | Fifth plea in law, alleging infringement of the obligation to state reasons.
  The applicant claims in this regard that the defendant did not provide any statement of reasons regarding the applicability of the exception provided for in Article 4(3) of Regulation No 1049/2001. |
| --- | --- |

5.

Fifth plea in law, alleging infringement of the obligation to state reasons.

The applicant claims in this regard that the defendant did not provide any statement of reasons regarding the applicability of the exception provided for in Article 4(3) of Regulation No 1049/2001.

| 6. | Sixth plea in law, alleging incorrect exclusion of a public interest in disclosure.
  The applicant claims in this regard that the defendant incorrectly interpreted the rights of the defence as a mere interest of a party, failing to consider that the right to defend oneself is a fundamental principle of the rule of law and, as such, protects and safeguards society in general, and not only a single individual. |
| --- | --- |

6.

Sixth plea in law, alleging incorrect exclusion of a public interest in disclosure.

The applicant claims in this regard that the defendant incorrectly interpreted the rights of the defence as a mere interest of a party, failing to consider that the right to defend oneself is a fundamental principle of the rule of law and, as such, protects and safeguards society in general, and not only a single individual.

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(1)  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. 43).

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Action brought on 8 July 2021 — Alfa Acciai v Commission

(Case T-411/21)

(2021/C 401/12)

Language of the case: Italian

Parties

Applicant: Alfa Acciai SpA (Brescia, Italy) (represented by: D. Fosselard, D. Slater and G. Carnazza, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — (i) | order the European Union, represented by the Commission, to pay default interest on the amount of EUR 7 175 000 at the rate set by the European Central Bank (ECB) for its principal refinancing operations in force on the first calendar day of the month in which the deadline falls, increased by three and a half percentage points, in respect of the period between 9 March 2010 and 14 November 2017, less interest in the amount of EUR 260 968,15 which has already been received by the applicant, which amounts to a total of EUR 2 222 073,29 or, in the alternative, to pay default interest calculated at the interest rate that the Court considers appropriate; |
| --- | --- |

— (i)

order the European Union, represented by the Commission, to pay default interest on the amount of EUR 7 175 000 at the rate set by the European Central Bank (ECB) for its principal refinancing operations in force on the first calendar day of the month in which the deadline falls, increased by three and a half percentage points, in respect of the period between 9 March 2010 and 14 November 2017, less interest in the amount of EUR 260 968,15 which has already been received by the applicant, which amounts to a total of EUR 2 222 073,29 or, in the alternative, to pay default interest calculated at the interest rate that the Court considers appropriate;

| — (ii) | order the European Union, represented by the Commission, to pay default interest on the amount requested in point (i) above in respect of the period between 14 November 2017 and the date on which that amount is actually paid, at the rate set by the ECB for its principal refinancing operations in force on the first calendar day of the month in which the deadline falls, increased by three and a half percentage points, or, in the alternative, at the interest rate that the Court considers appropriate; |
| --- | --- |

— (ii)

order the European Union, represented by the Commission, to pay default interest on the amount requested in point (i) above in respect of the period between 14 November 2017 and the date on which that amount is actually paid, at the rate set by the ECB for its principal refinancing operations in force on the first calendar day of the month in which the deadline falls, increased by three and a half percentage points, or, in the alternative, at the interest rate that the Court considers appropriate;

| — (iii) | as an alternative to point (ii) above, order the European Union, represented by the Commission, to pay default interest on the amount requested in point (i) in respect of the period between 2 March 2021 and the date on which that amount is actually paid, at the rate set by the ECB for its principal refinancing operations in force on the first calendar day of the month in which the deadline falls, increased by three and a half percentage points, or, in the alternative, at the interest rate that the Court considers appropriate; |
| --- | --- |

— (iii)

as an alternative to point (ii) above, order the European Union, represented by the Commission, to pay default interest on the amount requested in point (i) in respect of the period between 2 March 2021 and the date on which that amount is actually paid, at the rate set by the ECB for its principal refinancing operations in force on the first calendar day of the month in which the deadline falls, increased by three and a half percentage points, or, in the alternative, at the interest rate that the Court considers appropriate;

| — (iv) | in addition or in the alternative, annul Commission communication Ref. Ares(2021) 2904247 of 30 April 2021; |
| --- | --- |

— (iv)

in addition or in the alternative, annul Commission communication Ref. Ares(2021) 2904247 of 30 April 2021;

| — (v) | order the Commission to pay the costs. |
| --- | --- |

— (v)

order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, concerning the application for compensation, alleging incorrect execution by the Commission of the judgment of 21 September 2017, Ferriera Valsabbia and Others v Commission (C-86/15 P and C-87/15 P, EU:C:2017:717) contrary to the first paragraph of Article 266 TFEU and Article 41(3) of the Charter of Fundamental Rights of the European Union.
  In this regard, the applicant claims that the Commission has not paid the entire amount of default interest on the penalty repaid following the judgment. |
| --- | --- |

1.

First plea in law, concerning the application for compensation, alleging incorrect execution by the Commission of the judgment of 21 September 2017, Ferriera Valsabbia and Others v Commission (C-86/15 P and C-87/15 P, EU:C:2017:717) contrary to the first paragraph of Article 266 TFEU and Article 41(3) of the Charter of Fundamental Rights of the European Union.

In this regard, the applicant claims that the Commission has not paid the entire amount of default interest on the penalty repaid following the judgment.

| 2. | Second plea in law, concerning the application for annulment, alleging infringement and incorrect assessment of Articles 266 and 296 TFEU, infringement and incorrect assessment of Article 46 of the Statute of the Court of Justice of the European Union, a failure to state reasons in the Commission’s letter of 30 April 2021, and an error in law and manifest error of assessment.
  In this regard, the applicant claims that the letter, in which the Commission refused to pay default interest to the applicants, does not contain a sufficient statement of reasons and infringes the principles of limitation. |
| --- | --- |

2.

Second plea in law, concerning the application for annulment, alleging infringement and incorrect assessment of Articles 266 and 296 TFEU, infringement and incorrect assessment of Article 46 of the Statute of the Court of Justice of the European Union, a failure to state reasons in the Commission’s letter of 30 April 2021, and an error in law and manifest error of assessment.

In this regard, the applicant claims that the letter, in which the Commission refused to pay default interest to the applicants, does not contain a sufficient statement of reasons and infringes the principles of limitation.

| 3. | Third plea in law, concerning the application for annulment, alleging infringement and incorrect assessment of Article 266 TFEU and of Delegated Regulation (EU) No 1268/2012. (1)

  In this regard, the applicant claims that Article 85a(2) of Delegated Regulation (EC, Euratom) No 2342/2002, (2) relied on by the Commission in its letter of 30 April 2021, was no longer in force when the penalty was repaid, and therefore was no longer applicable. |
| --- | --- |

3.

Third plea in law, concerning the application for annulment, alleging infringement and incorrect assessment of Article 266 TFEU and of Delegated Regulation (EU) No 1268/2012. (1)

In this regard, the applicant claims that Article 85a(2) of Delegated Regulation (EC, Euratom) No 2342/2002, (2) relied on by the Commission in its letter of 30 April 2021, was no longer in force when the penalty was repaid, and therefore was no longer applicable.

---

(1)  Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1).

(2)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).

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Action brought on 10 July 2021 — Ferriere Nord v Commission

(Case T-414/21)

(2021/C 401/13)

Language of the case: Italian

Parties

Applicant: Ferriere Nord SpA (Osoppo, Italy) (represented by: W. Viscardini, G. Donà and B. Comparini, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| (1) | (a) | order (under the second paragraph of Article 266, Article 268 and the second paragraph of Article 340 TFEU) the European Union, represented by the Commission, to pay EUR 1 096 814,68 (or, in the alternative, a different sum to be determined by the Court by applying, where appropriate, a different rate from the one indicated below) — that amount being the result of applying the (1 %) refinancing rate of the European Central Bank (ECB) in force on 9 March 2010, increased by three and a half percentage points, for the period from 9 March 2010 until 25 October 2017 (less EUR 129 847,10 already paid as ‘yielded’ interest) — in compensation for the damage caused to Ferriere Nord SpA due to the failure to pay (contrary to the first paragraph of Article 266 TFEU) the default interest payable in respect of the fine (imposed by European Commission Decisions C(2009) 7492 final of 30 September 2009 and C(2009) 9912 final of 8 December 2009) provisionally paid by it on 9 March 2010 and repaid to it by the European Commission on 25 October 2017 following the judgment of the Court of Justice of 21 September 2017 in Case C-88/15 P;
  and, consequently, |
| --- | --- | --- |

(1)

(a)

order (under the second paragraph of Article 266, Article 268 and the second paragraph of Article 340 TFEU) the European Union, represented by the Commission, to pay EUR 1 096 814,68 (or, in the alternative, a different sum to be determined by the Court by applying, where appropriate, a different rate from the one indicated below) — that amount being the result of applying the (1 %) refinancing rate of the European Central Bank (ECB) in force on 9 March 2010, increased by three and a half percentage points, for the period from 9 March 2010 until 25 October 2017 (less EUR 129 847,10 already paid as ‘yielded’ interest) — in compensation for the damage caused to Ferriere Nord SpA due to the failure to pay (contrary to the first paragraph of Article 266 TFEU) the default interest payable in respect of the fine (imposed by European Commission Decisions C(2009) 7492 final of 30 September 2009 and C(2009) 9912 final of 8 December 2009) provisionally paid by it on 9 March 2010 and repaid to it by the European Commission on 25 October 2017 following the judgment of the Court of Justice of 21 September 2017 in Case C-88/15 P;

and, consequently,

| (b) | order the European Union, represented by the European Commission, to pay an additional amount as capitalisation of the compensation amount referred to in point (a) above, as from 25 October 2017 (or, in the alternative, from another date to be determined by the Court) until the date on which final payment is actually made, with that payment to be calculated according to the rate set by the European Central Bank for its principal refinancing operations, increased by three and a half percentage points (or, in the alternative, at another rate to be determined by the Court); |
| --- | --- |

(b)

order the European Union, represented by the European Commission, to pay an additional amount as capitalisation of the compensation amount referred to in point (a) above, as from 25 October 2017 (or, in the alternative, from another date to be determined by the Court) until the date on which final payment is actually made, with that payment to be calculated according to the rate set by the European Central Bank for its principal refinancing operations, increased by three and a half percentage points (or, in the alternative, at another rate to be determined by the Court);

| (2) | annul (under Article 263 TFEU) the letter of the European Commission (Directorate-General for Budget) Ares (2021)2904048 of 30 April 2021; |
| --- | --- |

(2)

annul (under Article 263 TFEU) the letter of the European Commission (Directorate-General for Budget) Ares (2021)2904048 of 30 April 2021;

| (3) | in any event, order the Commission to pay the costs in the case. |
| --- | --- |

(3)

in any event, order the Commission to pay the costs in the case.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law, one of which relates to compensation (1) and the other of which concerns the annulment of the contested letter (2).

| 1. | First plea in law, alleging that the Commission acted unlawfully by infringing the first paragraph of Article 266 TFEU (as well as Article 83 of Regulation No 1268/2012 (1) and/or, in so far as necessary, Article 86 of Regulation No 2342/2002 (2))






  — | In this regard, the applicant claims that, in order fully to comply (within the meaning of the first paragraph of Article 266 TFEU) with the judgment of the Court of Justice of 21 September 2017, Ferriere Nord v Commission (C-88/15 P, EU:C:2017:716) (which had annulled a 2009 assessment decision under Article 101 TFEU), the Commission should have repaid to Ferriere Nord not only the fine paid provisionally in 2010, but also default interest on that fine to be calculated according to the rate determined in accordance with Article 83(2)(b) of Regulation No 1268/2012, which is the rate applied by the European Central Bank to its principal refinancing operations in force on the first calendar day of the month in which the deadline falls, increased by three and a half percentage points. Instead, on 25 October 2017, the Commission paid, as interest, only the interest ‘yielded’ within the meaning of Article 90(4)of Regulation No 1268/2012, which was the return obtained from the bank account into which the amount of the fine had provisionally been paid. The failure to pay default interest constitutes an infringement of primary EU law (first paragraph of Article 266 TFEU), which gives rise to non-contractual liability on the part of the Commission. The amount of compensation payable for the reasons set out above will have to be capitalised from the date on which ‘yielded’ interest alone was paid until the date on which payment is actually made. |
| --- | --- | --- |

1.

First plea in law, alleging that the Commission acted unlawfully by infringing the first paragraph of Article 266 TFEU (as well as Article 83 of Regulation No 1268/2012 (1) and/or, in so far as necessary, Article 86 of Regulation No 2342/2002 (2))

—

In this regard, the applicant claims that, in order fully to comply (within the meaning of the first paragraph of Article 266 TFEU) with the judgment of the Court of Justice of 21 September 2017, Ferriere Nord v Commission (C-88/15 P, EU:C:2017:716) (which had annulled a 2009 assessment decision under Article 101 TFEU), the Commission should have repaid to Ferriere Nord not only the fine paid provisionally in 2010, but also default interest on that fine to be calculated according to the rate determined in accordance with Article 83(2)(b) of Regulation No 1268/2012, which is the rate applied by the European Central Bank to its principal refinancing operations in force on the first calendar day of the month in which the deadline falls, increased by three and a half percentage points. Instead, on 25 October 2017, the Commission paid, as interest, only the interest ‘yielded’ within the meaning of Article 90(4)of Regulation No 1268/2012, which was the return obtained from the bank account into which the amount of the fine had provisionally been paid. The failure to pay default interest constitutes an infringement of primary EU law (first paragraph of Article 266 TFEU), which gives rise to non-contractual liability on the part of the Commission. The amount of compensation payable for the reasons set out above will have to be capitalised from the date on which ‘yielded’ interest alone was paid until the date on which payment is actually made.

| 2. | Second plea in law, alleging infringement of Article 46 of the Statute of the Court of Justice and, consequently, of the first paragraph of Article 266 TFEU (as well as Article 83 of Regulation No 1268/2012 and/or, in so far as necessary, Article 86 of Regulation No 2342/2002)






  — | In this regard, the applicant claims that, by its letter of 30 April 2021, the Commission declared that it was not able and/or did not wish to grant Ferriere Nord’s pre-litigation application for compensation under Article 46 of the Statute of the Court of Justice because the limitation period of five years set out therein had elapsed, given that — in the view of that institution — the event that gave rise to its non-contractual liability (and therefore the moment from which the limitation period began to run) was the provisional payment of the fine in 2010. By contrast, Ferriere Nord infers that the event which gave rise to liability is the fact that on 25 October 2017 — when the fine was repaid in execution of the 2017 judgment — the Commission did not pay the default interest provided for in Article 83 of Regulation No 1268/2012 and paid only the interest ‘yielded’ as provided for under Article 90 of that regulation. It is that infringement of the first paragraph of Article 266 TFEU which constitutes the unlawful conduct of the Commission and gives rise to its non-contractual liability; consequently, it is the moment of that infringement which triggers the five-year limitation period provided for under Article 46 of the Statute. |
| --- | --- | --- |

2.

Second plea in law, alleging infringement of Article 46 of the Statute of the Court of Justice and, consequently, of the first paragraph of Article 266 TFEU (as well as Article 83 of Regulation No 1268/2012 and/or, in so far as necessary, Article 86 of Regulation No 2342/2002)

—

In this regard, the applicant claims that, by its letter of 30 April 2021, the Commission declared that it was not able and/or did not wish to grant Ferriere Nord’s pre-litigation application for compensation under Article 46 of the Statute of the Court of Justice because the limitation period of five years set out therein had elapsed, given that — in the view of that institution — the event that gave rise to its non-contractual liability (and therefore the moment from which the limitation period began to run) was the provisional payment of the fine in 2010. By contrast, Ferriere Nord infers that the event which gave rise to liability is the fact that on 25 October 2017 — when the fine was repaid in execution of the 2017 judgment — the Commission did not pay the default interest provided for in Article 83 of Regulation No 1268/2012 and paid only the interest ‘yielded’ as provided for under Article 90 of that regulation. It is that infringement of the first paragraph of Article 266 TFEU which constitutes the unlawful conduct of the Commission and gives rise to its non-contractual liability; consequently, it is the moment of that infringement which triggers the five-year limitation period provided for under Article 46 of the Statute.

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(1)  Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1).

(2)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).

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| 4.10.2021 | EN | Official Journal of the European Union | C 401/13 |
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4.10.2021

EN

Official Journal of the European Union

C 401/13

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Action brought on 10 July 2021 — Banca Popolare di Bari v Commission

(Case T-415/21)

(2021/C 401/14)

Language of the case: Italian

Parties

Applicant: Banca Popolare di Bari SpA (Bari, Italy) (represented by: A. Zoppini, G. Roberti, I. Perego and G. Parisi, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | order the European Union, represented by the Commission, to pay to the applicant the sum of EUR 280 million as compensation for material damage, as well as an adequate amount of compensation for non-material damage, caused by Commission Decision (EU) 2016/1208 of 23 December 2015 on State aid granted by Italy to the bank Tercas (Case SA.39451 (2015/C) (ex 2015/NN)); |
| --- | --- |

—

order the European Union, represented by the Commission, to pay to the applicant the sum of EUR 280 million as compensation for material damage, as well as an adequate amount of compensation for non-material damage, caused by Commission Decision (EU) 2016/1208 of 23 December 2015 on State aid granted by Italy to the bank Tercas (Case SA.39451 (2015/C) (ex 2015/NN));

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the Commission’s conduct was unlawful






  — | In this regard, the applicant claims that there was an infringement which was sufficiently serious given that, in adopting the decision, the Commission (i) had no margin of discretion, since Article 107(1) TFEU is a provision with direct effect which is precise and unconditional, and (ii) made a manifest error of assessment. Furthermore, the Commission relied on insufficient evidence and distorted the case-law of both the General Court (judgment of 19 March 2019, Italy and Others v Commission, T-98/16, T-196/16 and T-198/16, EU:T:2019:167) and of the Court of Justice (judgment of 2 March 2021, Commission v Italy and Others, C-425/19 P, EU:C:2021:154). |
| --- | --- | --- |

1.

First plea in law, alleging that the Commission’s conduct was unlawful

—

In this regard, the applicant claims that there was an infringement which was sufficiently serious given that, in adopting the decision, the Commission (i) had no margin of discretion, since Article 107(1) TFEU is a provision with direct effect which is precise and unconditional, and (ii) made a manifest error of assessment. Furthermore, the Commission relied on insufficient evidence and distorted the case-law of both the General Court (judgment of 19 March 2019, Italy and Others v Commission, T-98/16, T-196/16 and T-198/16, EU:T:2019:167) and of the Court of Justice (judgment of 2 March 2021, Commission v Italy and Others, C-425/19 P, EU:C:2021:154).

| — | The provisions infringed by the decision are provisions which confer rights on individuals; therefore, that decision also infringes the freedom to conduct a business and the fundamental right to sound administration. |
| --- | --- |

—

The provisions infringed by the decision are provisions which confer rights on individuals; therefore, that decision also infringes the freedom to conduct a business and the fundamental right to sound administration.

| 2. | Second plea in law, alleging material and non-material damage caused to the applicant by the Commission’s unlawful conduct.






  — | In this regard, the applicant claims that, in the absence of other possible concurrent factors, it was the Commission’s decision which was the determining factor that caused the bank’s clients to lose faith in it and occasioned the losses suffered by it: the Commission blocked the plan to integrate Tercas and Caripe and the planned intervention by the Fondo Interbancario di Tutela dei Depositi (Italian Interbank Deposit Protection Fund; FITD). |
| --- | --- | --- |

2.

Second plea in law, alleging material and non-material damage caused to the applicant by the Commission’s unlawful conduct.

—

In this regard, the applicant claims that, in the absence of other possible concurrent factors, it was the Commission’s decision which was the determining factor that caused the bank’s clients to lose faith in it and occasioned the losses suffered by it: the Commission blocked the plan to integrate Tercas and Caripe and the planned intervention by the Fondo Interbancario di Tutela dei Depositi (Italian Interbank Deposit Protection Fund; FITD).

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| 4.10.2021 | EN | Official Journal of the European Union | C 401/13 |
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4.10.2021

EN

Official Journal of the European Union

C 401/13

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Action brought on 20 July 2021 — Greenwich Polo Club v EUIPO — Lifestyle Equities (GREENWICH POLO CLUB)

(Case T-437/21)

(2021/C 401/15)

Language of the case: English

Parties

Applicant: Greenwich Polo Club, Inc. (Greenwich, Connecticut, United States) (represented by: R. Zammitt, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Lifestyle Equities CV (Amsterdam, Netherlands)

Details of the proceedings before EUIPO

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

Trade mark at issue: European Union figurative mark GREENWICH POLO CLUB — Application for registration No 17 791 153

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 10 May 2021 in Case R 300/2020-1

Form of order sought

The applicant claims that the Court should:

| — | order that the contested decision is annulled, and the contested mark proceeds to registration in respect of the contested goods (as well as the rest of the goods not appealed), alternatively, that the matter is remitted to the EUIPO for re-consideration; |
| --- | --- |

—

order that the contested decision is annulled, and the contested mark proceeds to registration in respect of the contested goods (as well as the rest of the goods not appealed), alternatively, that the matter is remitted to the EUIPO for re-consideration;

| — | order the payment of the costs incurred by the applicant in connection with the appeal. |
| --- | --- |

—

order the payment of the costs incurred by the applicant in connection with the appeal.

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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| 4.10.2021 | EN | Official Journal of the European Union | C 401/14 |
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4.10.2021

EN

Official Journal of the European Union

C 401/14

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Action brought on 30 July 2021 — Spain v Commission

(Case T-450/21)

(2021/C 401/16)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: S. Jiménez García and J. Rodríguez de la Rúa Puig, Agents)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Implementing Decision (EU) 2021/988 of 16 June 2021 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), (1) in so far as it concerns certain expenditure incurred by the Kingdom of Spain; |
| --- | --- |

—

annul Commission Implementing Decision (EU) 2021/988 of 16 June 2021 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), (1) in so far as it concerns certain expenditure incurred by the Kingdom of Spain;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging breach of the checks on the correctness of the calculation of the aid, including application of administrative penalties (key control), the Commission’s interpretation of Article 31(3) of Delegated Regulation No 640/2014, (2) in conjunction with Article 53(4) of Delegated Regulation No 639/2014, (3) being contrary to the principle of proportionality.
  This plea consists in four parts (A to D):






  — | A: unjustified imposition of administrative penalties for failure to fulfil the requirements of identification and registration of animals before the date fixed by a Member State, in accordance with Article 31(3) of Delegated Regulation No 640/2014, in conjunction with Article 53(4) of Delegated Regulation No 639/2014. |
| --- | --- | --- |

1.

First plea in law, alleging breach of the checks on the correctness of the calculation of the aid, including application of administrative penalties (key control), the Commission’s interpretation of Article 31(3) of Delegated Regulation No 640/2014, (2) in conjunction with Article 53(4) of Delegated Regulation No 639/2014, (3) being contrary to the principle of proportionality.

This plea consists in four parts (A to D):

—

A: unjustified imposition of administrative penalties for failure to fulfil the requirements of identification and registration of animals before the date fixed by a Member State, in accordance with Article 31(3) of Delegated Regulation No 640/2014, in conjunction with Article 53(4) of Delegated Regulation No 639/2014.

| — | B to D: unjustified imposition of administrative penalties under Article 31(3) of Delegated Regulation No 640/2014 for animals in respect of which non-compliant identification and registration was found a priori during administrative checks on all the aid application files of a Member State which, like the Kingdom of Spain, applies, in accordance with Article 21(4) of Implementing Regulation No 809/2014, (4) a claimless system which, by its very nature, excludes any risk to the EAGF. |
| --- | --- |

—

B to D: unjustified imposition of administrative penalties under Article 31(3) of Delegated Regulation No 640/2014 for animals in respect of which non-compliant identification and registration was found a priori during administrative checks on all the aid application files of a Member State which, like the Kingdom of Spain, applies, in accordance with Article 21(4) of Implementing Regulation No 809/2014, (4) a claimless system which, by its very nature, excludes any risk to the EAGF.

| 2. | Second plea in law, alleging correct production of statistics of on-the-spot checks of sufficient quality (key control), including the size of the random sample and the effectiveness of the risk analysis, in accordance with Article 34 of Implementing Regulation No 809/2014. |
| --- | --- |

2.

Second plea in law, alleging correct production of statistics of on-the-spot checks of sufficient quality (key control), including the size of the random sample and the effectiveness of the risk analysis, in accordance with Article 34 of Implementing Regulation No 809/2014.

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(1)  OJ 2021 L 218, p. 9.

(2)  Commission Delegated Regulation (EU) No 640/2014 of 11 March 2014 supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to the integrated administration and control system and conditions for refusal or withdrawal of payments and administrative penalties applicable to direct payments, rural development support and cross compliance (OJ 2014 L 181, p. 48).

(3)  Commission Delegated Regulation (EU) No 639/2014 of 11 March 2014 supplementing Regulation (EU) No 1307/2013 of the European Parliament and of the Council establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and amending Annex X to that Regulation (OJ 2014 L 181, p. 1).

(4)  Commission Implementing Regulation (EU) No 809/2014 of 17 July 2014 laying down rules for the application of Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to the integrated administration and control system, rural development measures and cross compliance (OJ 2014 L 227, p. 69).

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| 4.10.2021 | EN | Official Journal of the European Union | C 401/15 |
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4.10.2021

EN

Official Journal of the European Union

C 401/15

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Action brought on 9 August 2021 — BNetzA v ACER

(Case T-485/21)

(2021/C 401/17)

Language of the case: German

Parties

Applicant: Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen (BNetzA) (Germany) (represented by: U. Karpenstein and K. Reiter, lawyers)

Defendant: European Union Agency for the Cooperation of Energy Regulators

Form of order sought

The applicant claims that the Court should:

| — | annul Decision No A-001-2021 (consolidated) of the defendant’s Board of Appeal of 28 May 2021 (contested decision); |
| --- | --- |

—

annul Decision No A-001-2021 (consolidated) of the defendant’s Board of Appeal of 28 May 2021 (contested decision);

| — | in the alternative, in the event that the Court does not annul the contested decision in its entirety, annul that decision in so far as it upholds the following parts and provisions of the defendant’s Decision No 30/2020 of 30 November 2020:






  (i) | Article 1(1), second sentence, Article 2(2)(j) and Article 3 of Annex I thereto; |
| --- | --- | --- |

—

in the alternative, in the event that the Court does not annul the contested decision in its entirety, annul that decision in so far as it upholds the following parts and provisions of the defendant’s Decision No 30/2020 of 30 November 2020:

(i)

Article 1(1), second sentence, Article 2(2)(j) and Article 3 of Annex I thereto;

| (ii) | Article 7 of Annex I; |
| --- | --- |

(ii)

Article 7 of Annex I;

| (iii) | Article 12(2) of Annex I; |
| --- | --- |

(iii)

Article 12(2) of Annex I;

| (iv) | all parts and provisions that explicitly refer to the provisions referred to under (i) to (iii). |
| --- | --- |

(iv)

all parts and provisions that explicitly refer to the provisions referred to under (i) to (iii).

| — | 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

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

| 1. | First plea in law, alleging that the extension of the cost sharing methodology to network elements other than cross-zonal ones is inconsistent with the requirements of Article 16(13) of Regulation (EU) 2019/943 (1) and Article 74 of Regulation (EU) 2015/1222. (2) In any event, the requisite legal basis is lacking. At the very least, deducing the scope of the cost sharing methodology from requirements of operational security and the polluter pays principle constituted an error of law. |
| --- | --- |

1.

First plea in law, alleging that the extension of the cost sharing methodology to network elements other than cross-zonal ones is inconsistent with the requirements of Article 16(13) of Regulation (EU) 2019/943 (1) and Article 74 of Regulation (EU) 2015/1222. (2) In any event, the requisite legal basis is lacking. At the very least, deducing the scope of the cost sharing methodology from requirements of operational security and the polluter pays principle constituted an error of law.

| 2. | Second plea in law, alleging that the prohibition on netting infringes in particular Article 16(11) and (13) of Regulation (EU) 2019/943. In addition, it renders the cost sharing methodology inherently contradictory. |
| --- | --- |

2.

Second plea in law, alleging that the prohibition on netting infringes in particular Article 16(11) and (13) of Regulation (EU) 2019/943. In addition, it renders the cost sharing methodology inherently contradictory.

| 3. | Third plea in law, alleging that the setting of a temporary threshold for legitimate loop flows, carried out by the defendant on the basis of its own criteria, is formally and substantively in breach of EU law. Formally, the defendant infringes the power of the transmission system operators and the national regulatory authorities to set the threshold. In addition, the defendant sets a temporary threshold despite the lack of analysis of the level of legitimate loop flows by the transmission system operators as required under the second subparagraph of Article 16(13) of Regulation (EU) 2019/943. Substantively, the cost sharing methodology does not comply with the requirement laid down in the second subparagraph of Article 16(13) of Regulation (EU) 2019/943 that an individual threshold be set ‘for each individual bidding zone border’, in that it sets a unitary threshold that is split equally between the bidding zones creating the loop flows. At the very least, the temporary threshold set lacks the requisite legal basis. |
| --- | --- |

3.

Third plea in law, alleging that the setting of a temporary threshold for legitimate loop flows, carried out by the defendant on the basis of its own criteria, is formally and substantively in breach of EU law. Formally, the defendant infringes the power of the transmission system operators and the national regulatory authorities to set the threshold. In addition, the defendant sets a temporary threshold despite the lack of analysis of the level of legitimate loop flows by the transmission system operators as required under the second subparagraph of Article 16(13) of Regulation (EU) 2019/943. Substantively, the cost sharing methodology does not comply with the requirement laid down in the second subparagraph of Article 16(13) of Regulation (EU) 2019/943 that an individual threshold be set ‘for each individual bidding zone border’, in that it sets a unitary threshold that is split equally between the bidding zones creating the loop flows. At the very least, the temporary threshold set lacks the requisite legal basis.

| 4. | Fourth plea in law, alleging that the prioritisation of loop flows over internal flows when determining the causes of network congestions, on which the cost sharing methodology is based, infringes Article 16(13) of Regulation (EU) 2019/943. In addition, it provides wrong incentives. It is also inconsistent with the requirement of fairness and the prohibition of discrimination. |
| --- | --- |

4.

Fourth plea in law, alleging that the prioritisation of loop flows over internal flows when determining the causes of network congestions, on which the cost sharing methodology is based, infringes Article 16(13) of Regulation (EU) 2019/943. In addition, it provides wrong incentives. It is also inconsistent with the requirement of fairness and the prohibition of discrimination.

| 5. | Fifth plea in law, alleging that the cost sharing methodology is in breach of EU law at the very least in the context of the requisite overall assessment. The broad scope, the prohibition on netting, the inappropriate threshold and the prioritisation of loop flows over internal flows are linked to one another and amplify one another. At the very least when taken together, they lead to an infringement of the polluter pays principle, the prohibition of discrimination and the requirement of fairness. Moreover, the cost sharing methodology is inconsistent at the very least in its overall effect with the European Union’s objective of increasing the share of renewable energy. The cost sharing methodology is on the whole disproportionate and, in any event, lacks the requisite legal basis. |
| --- | --- |

5.

Fifth plea in law, alleging that the cost sharing methodology is in breach of EU law at the very least in the context of the requisite overall assessment. The broad scope, the prohibition on netting, the inappropriate threshold and the prioritisation of loop flows over internal flows are linked to one another and amplify one another. At the very least when taken together, they lead to an infringement of the polluter pays principle, the prohibition of discrimination and the requirement of fairness. Moreover, the cost sharing methodology is inconsistent at the very least in its overall effect with the European Union’s objective of increasing the share of renewable energy. The cost sharing methodology is on the whole disproportionate and, in any event, lacks the requisite legal basis.

| 6. | Sixth plea in law, alleging that the unconditional obligation of the transmission system operators, included in the cost sharing methodology, to develop amendment proposals and submit them for approval to the regulatory authorities within 12 months of the implementation of the cost sharing methodology infringes Article 16(13) of Regulation (EU) 2019/943 and Article 74(6)(b) in conjunction with Article 9(13) of Regulation (EU) 2015/1222. |
| --- | --- |

6.

Sixth plea in law, alleging that the unconditional obligation of the transmission system operators, included in the cost sharing methodology, to develop amendment proposals and submit them for approval to the regulatory authorities within 12 months of the implementation of the cost sharing methodology infringes Article 16(13) of Regulation (EU) 2019/943 and Article 74(6)(b) in conjunction with Article 9(13) of Regulation (EU) 2015/1222.

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(1)  Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (recast) (OJ 2019 L 158, p. 54).

(2)  Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline on capacity allocation and congestion management (OJ 2015 L 197, p. 24).

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| 4.10.2021 | EN | Official Journal of the European Union | C 401/17 |
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4.10.2021

EN

Official Journal of the European Union

C 401/17

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Action brought on 11 August 2021 — Hungary v Commission

(Case T-491/21)

(2021/C 401/18)

Language of the case: Hungarian

Parties

Applicant: Hungary (represented by: M.Z. Fehér and G. Koós, Agents)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Implementing Decision (EU) 2021/988 of 16 June 2021 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), (1) in so far as it concerns Hungary by excluding from European Union financing support under the European Agricultural Fund for Rural Development for the financial years 2016 to 2019 based on the absence of a key control (Rural Development EAFRD forestry measures); |
| --- | --- |

—

annul Commission Implementing Decision (EU) 2021/988 of 16 June 2021 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), (1) in so far as it concerns Hungary by excluding from European Union financing support under the European Agricultural Fund for Rural Development for the financial years 2016 to 2019 based on the absence of a key control (Rural Development EAFRD forestry measures);

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

According to the Hungarian Government, the Commission incorrectly interprets Article 30 of Regulation (EU) No 1306/2013 (2) and Article 28(1)(b) of Implementing Regulation (EU) No 809/2014. (3) The Hungarian Government submits that the reasoning in point 3.4.2 of the Commission’s explanatory document entitled ‘Methods of the rural development premia calculation to exclude double funding’, in the version dated February 2017, is not in line with those provisions. The explanatory document is not legally binding and the interpretation advocated by it is not consistent with EU law.

In support of its action, the Hungarian Government relies, in essence, on a single plea in law. It submits that Article 30 of Regulation (EU) 1306/2013 and Article 28(1)(b) of Regulation (EU) 809/2014 do not require checks to be established in respect of double funding that might arise as a result of support granted for greening and afforestation, bearing in mind that, according to the provisions of EU law currently in force, there is no justified risk of double funding so far as support granted for those two areas is concerned.

In support of that claim, first, the Hungarian Government seeks to show that expenses financed for afforestation and for greening have an entirely distinct objective in terms of support. Next, the Hungarian Government states in its application that the two contexts in which support is granted are also entirely distinct. The eligibility criteria are different for each type of support and the ranges of eligible expenditure are not the same.

Lastly, the Hungarian Government submits that the Commission incorrectly interprets the scope of the general prohibition of double funding in Article 30 of Regulation (EU) 1306/2013 and fails to take into consideration that the EU legislation currently in force does not expressly provide that support granted for afforestation and for greening constitutes double funding.

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(1)  OJ 2021 L 218, p. 9.

(2)  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 (OJ 2013 L 347, p. 549).

(3)  Commission Implementing Regulation (EU) No 809/2014 of 17 July 2014 laying down rules for the application of Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to the integrated administration and control system, rural development measures and cross compliance (OJ 2014 L 227, p. 69).

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| 4.10.2021 | EN | Official Journal of the European Union | C 401/18 |
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4.10.2021

EN

Official Journal of the European Union

C 401/18

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Action brought on 13 August 2021 — Spain v Commission

(Case T-495/21)

(2021/C 401/19)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: L. Aguilera Ruiz and M.J. Ruiz Sánchez, Agents)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Implementing Decision (EU) 2021/988 of 16 June 2021 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), (1) (notified under document C(2021) 4118), in so far as it concerns the Kingdom of Spain in relation to the investigation concerning the paying agency of the Basque Country, file number AA/2018/003/ES/RLF, for a net amount of EUR 2 056 473,43; |
| --- | --- |

—

annul Commission Implementing Decision (EU) 2021/988 of 16 June 2021 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), (1) (notified under document C(2021) 4118), in so far as it concerns the Kingdom of Spain in relation to the investigation concerning the paying agency of the Basque Country, file number AA/2018/003/ES/RLF, for a net amount of EUR 2 056 473,43;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the flat-rate correction for a net amount of EUR 2 056 473,43 is contrary to Article 5 of Delegated Regulation (EU) No 640/2014 (2) and Articles 28 and 29 of Implementing Regulation (EU) No 809/2014. (3) The Commission made a manifest error in assessing a key control deficiency in the effectiveness of cross-checks and the quality of the geographic information system for agricultural parcels (SIGPAC).
  The Commission confused the isolated discrepancies detected in a process of on-screen checking of photo-interpretation corresponding to the SIGPAC, and the subsequent in situ verifications relating to four parcels selected at random, with the results of planned on-the-spot checks, corresponding to verifications of parcels having an eligibility coefficient on a pro rata basis in 2016, 2017 and 2018, carried out as part of the action plan to improve the updating of the SIGPAC. Although they are separate and distinct operations, the Commission reaches a joint conclusion by extrapolating the results of both operations in order to apply the contested correction, which the applicant considers incorrect and disproportionate. |
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1.

First plea in law, alleging that the flat-rate correction for a net amount of EUR 2 056 473,43 is contrary to Article 5 of Delegated Regulation (EU) No 640/2014 (2) and Articles 28 and 29 of Implementing Regulation (EU) No 809/2014. (3) The Commission made a manifest error in assessing a key control deficiency in the effectiveness of cross-checks and the quality of the geographic information system for agricultural parcels (SIGPAC).

The Commission confused the isolated discrepancies detected in a process of on-screen checking of photo-interpretation corresponding to the SIGPAC, and the subsequent in situ verifications relating to four parcels selected at random, with the results of planned on-the-spot checks, corresponding to verifications of parcels having an eligibility coefficient on a pro rata basis in 2016, 2017 and 2018, carried out as part of the action plan to improve the updating of the SIGPAC. Although they are separate and distinct operations, the Commission reaches a joint conclusion by extrapolating the results of both operations in order to apply the contested correction, which the applicant considers incorrect and disproportionate.

| 2. | Second plea in law, alleging that the Commission infringed the Guidelines on the calculation of the financial corrections in the framework of the conformity and financial clearance of accounts procedures (C(2015) 3675 of 8 June 2015), from which it is clear that the flat-rate correction imposed is unjustified, given that there were no deficiencies in the cross-checks and the risk to the Fund on account of deficiencies in the on-the-spot checks was quantified during the procedure. In addition to submitting that there was no deficiency in the cross-checks resulting in a risk to the Fund that would justify the correction applied, the applicant claims that, as regards the on-the-spot checks, the Commission applied the flat-rate correction without justification, since the risk to the Fund was individualised and quantified during the procedure. |
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2.

Second plea in law, alleging that the Commission infringed the Guidelines on the calculation of the financial corrections in the framework of the conformity and financial clearance of accounts procedures (C(2015) 3675 of 8 June 2015), from which it is clear that the flat-rate correction imposed is unjustified, given that there were no deficiencies in the cross-checks and the risk to the Fund on account of deficiencies in the on-the-spot checks was quantified during the procedure. In addition to submitting that there was no deficiency in the cross-checks resulting in a risk to the Fund that would justify the correction applied, the applicant claims that, as regards the on-the-spot checks, the Commission applied the flat-rate correction without justification, since the risk to the Fund was individualised and quantified during the procedure.

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(1)  OJ 2021 L 218, p. 9.

(2)  Commission Delegated Regulation (EU) No 640/2014 of 11 March 2014 supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to the integrated administration and control system and conditions for refusal or withdrawal of payments and administrative penalties applicable to direct payments, rural development support and cross compliance (OJ 2014 L 181, p. 48).

(3)  Commission Implementing Regulation (EU) No 809/2014 of 17 July 2014 laying down rules for the application of Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to the integrated administration and control system, rural development measures and cross compliance (OJ 2014 L 227, p. 69).

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| 4.10.2021 | EN | Official Journal of the European Union | C 401/19 |
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4.10.2021

EN

Official Journal of the European Union

C 401/19

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Action brought on 16 August 2021 — Tinnus Enterprises v EUIPO — Mystic Products Import & Export (Fluid distribution equipment)

(Case T-505/21)

(2021/C 401/20)

Language of the case: English

Parties

Applicant: Tinnus Enterprises LLC (Plano, Texas, United States) (represented by: T. Wuttke, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Mystic Products Import & Export, SL (Badalona, Spain)

Details of the proceedings before EUIPO

Proprietor of the design at issue: Applicant before the General Court

Design at issue: Community design No 1 431 829-0010

Contested decision: Decision of the Third Board of Appeal of EUIPO of 9 June 2021 in Case R 1003/2018-3

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision; |
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—

annul the contested decision;

| — | alter the contested decision to:






  — | allow the applicant’s appeal, |
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—

alter the contested decision to:

—

allow the applicant’s appeal,

| — | dismiss in its entirety the invalidity applicant’s application ICD 10 296 to declare the contested design invalid, |
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—

dismiss in its entirety the invalidity applicant’s application ICD 10 296 to declare the contested design invalid,

| — | order the invalidity applicant to pay the applicant’s costs in front of the Board of Appeal and the Invalidity Division; |
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—

order the invalidity applicant to pay the applicant’s costs in front of the Board of Appeal and the Invalidity Division;

| — | order the invalidity applicant to pay the applicant’s fees and costs. |
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—

order the invalidity applicant to pay the applicant’s fees and costs.

Pleas in law

| — | Infringement of the principles set forth in the judgment of 24 March 2021, Lego v EUIPO — Delta Sport Handelskontor (Building block from a toy building set) (T-515/19, not published, EU:T:2021:155); |
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Infringement of the principles set forth in the judgment of 24 March 2021, Lego v EUIPO — Delta Sport Handelskontor (Building block from a toy building set) (T-515/19, not published, EU:T:2021:155);

| — | Infringement of the principles set forth in the judgment of 8 March 2018, DOCERAM (C-395/16, EU:C:2018:172); |
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Infringement of the principles set forth in the judgment of 8 March 2018, DOCERAM (C-395/16, EU:C:2018:172);

| — | Infringement of Article 8(1) of Council Regulation (EC) No 6/2002; |
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—

Infringement of Article 8(1) of Council Regulation (EC) No 6/2002;

| — | Misinterpretation of patent application EP 3 005 948 A2 and the applicant’s multiple design application No. 1 431 829-0001-0010. |
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—

Misinterpretation of patent application EP 3 005 948 A2 and the applicant’s multiple design application No. 1 431 829-0001-0010.

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