# Official Journal C 90/7 Ma

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 90 |
| | |
| English edition | Information and Notices | Volume 597 March 2016 |

ISSN 1977-091X

Official Journal

of the European Union

C 90

English edition

Information and Notices

Volume 597 March 2016

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| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Court of Justice of the European Union |
| 2016/C 090/01 | Last publications of the Court of Justice of the European Union in the Official Journal of the European Union | 1 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Court of Justice of the European Union

2016/C 090/01

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

Official Journal of the European Union

1

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| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | Court of Justice |
| 2016/C 090/02 | Case C-500/15 P: Appeal brought on 21 September 2015 by TVR Italia Srl against the judgment of the General Court (Fourth Chamber) of 15 July 2015 in TVR Automotive v OHIM — TVR Italia (Case T-398/13) | 2 |
| 2016/C 090/03 | Case C-564/15: Request for a preliminary ruling from the Kecskeméti Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 4 November 2015 — Tibor Farkas v Nemzeti Adó- és Vámhivatal Dél-alfödi Regionális Adó Főigazgatósága | 2 |
| 2016/C 090/04 | Case C-566/15: Request for a preliminary ruling from the Kammergericht Berlin (Germany) lodged on 3 November 2015 — Konrad Erzberger v TUI AG | 3 |
| 2016/C 090/05 | Case C-571/15: Request for a preliminary ruling from the Hessisches Finanzgericht (Germany) lodged on 6 November 2015 — Wallenborn Transports SA v Hauptzollamt Gießen | 3 |
| 2016/C 090/06 | Case C-605/15: Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 17 November 2015 — Minister Finansów v Aviva Towarzystwo Ubezpieczeń na Życie S.A. w Warszawie | 4 |
| 2016/C 090/07 | Case C-641/15: Request for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 2 December 2015 — Verwertungsgesellschaft Rundfunk GmbH v Hettegger Hotel Edelweiss GmbH | 5 |
| 2016/C 090/08 | Case C-645/15: Request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 3 December 2015 — Bund Naturschutz in Bayern e.V., Harald Wilde v Freistaat Bayern | 5 |
| 2016/C 090/09 | Case C-670/15: Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 15 December 2015 — Jan Šalplachta | 6 |
| 2016/C 090/10 | Case C-671/15: Request for a preliminary ruling from the Cour de cassation (France) lodged on 14 December 2015 — Président de l’Autorité de la concurrence v Association des producteurs vendeurs d’endives (APVE), Association Comité économique régional agricole fruits et légumes de Bretagne (Cerafel), Société Fraileg, Société Prim’Santerre, Union des endiviers, Société Soleil du Nord, Comité économique fruits et légumes du Nord de la France (Celfnord), Association des producteurs d’endives de France (APEF), Section nationale de l’endive (SNE), Fédération du commerce de l’endive (FCE), Société France endives, Société Cambrésis Artois-Picardie endives (CAP’Endives), Société Marché de Phalempin, Société Primacoop, Société Coopérative agricole du marais audomarois (Sipema), Société Valois-Fruits, Société Groupe Perle du Nord, Ministre de l’économie, de l’industrie et du numérique | 7 |
| 2016/C 090/11 | Case C-672/15: Request for a preliminary ruling from the Tribunal de grande instance de Perpignan (France) lodged on 14 December 2015 — Procureur de la République v Noria Distribution SARL | 8 |
| 2016/C 090/12 | Case C-677/15 P: Appeal brought on 16 December 2015 by Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment of the General Court (Fourth Chamber) delivered on 7 October 2015 in Case T-299/11: European Dynamics Luxembourg SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, European Dynamics Belgium SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 8 |
| 2016/C 090/13 | Case C-695/15: Request for a preliminary ruling from the Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 23 December 2015 — Shiraz Baig Mirza v Bevándorlási és Állampolgársági Hivatal | 10 |
| 2016/C 090/14 | Case C-8/16: Request for a preliminary ruling from the Tribunale di Frosinone (Italy) lodged on 5 January 2016 — Criminal proceedings against Paola Tonachella | 11 |
| 2016/C 090/15 | Case C-17/16: Request for a preliminary ruling from the Cour de cassation (France) lodged on 12 January 2016 — Oussama El Dakkak, Intercontinental SARL v Administration des douanes et des droits indirects | 11 |
| 2016/C 090/16 | Case C-30/16: Action brought on 18 January 2016 — European Commission v Federal Republic of Germany | 12 |
| | General Court |
| 2016/C 090/17 | Case T-427/12: Judgment of the General Court of 28 January 2016 — Austria v Commission (State Aid — Banking sector — Aid implemented by Germany and Austria for the benefit of Bayerische Landesbank in the course of its restructuring — Decision declaring the aid compatible with the internal market, provided that certain conditions are met — Repeal of the initial decision drawn up in a language other than that of the Member State — Action for annulment — Challengeable act — Admissibility — Definition of State aid — Advantage — Rights of defence — Obligation to state reasons) | 13 |
| 2016/C 090/18 | Case T-443/13: Judgment of the General Court of 21 January 2016 — Makhlouf v Council (Common foreign and security policy — Restrictive measures against Syria — Freezing of funds — Obligation to state reasons — Rights of defence — Right to effective judicial protection — Manifest error of assessment — Right to property — Right to respect for private life — Proportionality) | 13 |
| 2016/C 090/19 | Case T-674/13: Judgment of the General Court of 28 January 2016 — Gugler France v OHIM — Gugler (GUGLER) (Community trade mark — Invalidity proceedings — Community figurative mark GUGLER — Absolute ground for refusal — Article 52(1)(b) of Regulation (EC) No 207/2009 — Relative ground for refusal — Article 8(4) and Article 53(1)(c) of Regulation No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009 — Ground raised by the Court of its own motion) | 14 |
| 2016/C 090/20 | Case T-62/14: Order of the General Court of 21 January 2016 — BR IP Holder v OHIM — Greyleg Investments (HOKEY POKEY) (Community trade mark — Opposition proceedings — Application for Community word mark HOKEY POKEY — Unregistered earlier national word mark — Proof of use — Right to prohibit use of the mark sought — Article 8(4) of Regulation (EC) No 207/2009 — Right of a Member State — Obligation to state reasons — Raised by the Court of its own motion) | 15 |
| 2016/C 090/21 | Case T-782/14: Judgment of the General Court of 27 January 2016 — DF v Commission (Appeal — Civil service — Officials — Remuneration — Secondment in the interest of the service — Expatriation allowance — Condition set out in Article 4(1)(b) of Annex VII to the Staff Regulations — Recovery of undue payments) | 15 |
| 2016/C 090/22 | Case T-802/14: Judgment of the General Court of 21 January 2016 — Laboratorios Ern v OHIM — michelle menard (Lenah. C) (Community trade mark — Opposition proceedings — Application for Community word mark Lenah.C — Earlier national word mark LEMA — Relative grounds for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009) | 16 |
| 2016/C 090/23 | Case T-75/15: Judgment of the General Court of 21 January 2016 — Rod Leichtmetallräder v OHIM — Rodi TR (ROD) (Community trade mark — Invalidity proceedings — Community figurative mark ROD — Earlier national figurative marks RODI — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 — Earlier opposition proceedings — Rule 39(3) of Regulation (EC) No 2868/95) | 16 |
| 2016/C 090/24 | Case T-746/15 R: Order of the President of the General Court of 18 January 2016 — Biofa v Commission (Interim measures — Plant protection product — Approval of the basic substance sodium hydrogen carbonate — Application for suspension of operation — Lack of urgency) | 17 |
| 2016/C 090/25 | Case T-602/15: Action brought on 23 October 2015 — Jenkinson v Council and Others | 17 |
| 2016/C 090/26 | Case T-678/15: Action brought on 23 November 2015 — Novartis v OHIM (Representation of a crescent in black and white) | 19 |
| 2016/C 090/27 | Case T-679/15: Action brought on 23 November 2015 — Novartis v OHIM (Representation of a crescent in green and white) | 20 |
| 2016/C 090/28 | Case T-736/15: Action brought on 17 December 2015 — Aldi v OHIM — Sky (SKYLITE) | 20 |
| 2016/C 090/29 | Case T-778/15: Action brought on 28 December 2015 — It Works v OHIM — KESA Holdings Luxembourg (IT it WORKS) | 21 |
| 2016/C 090/30 | Case T-7/16: Action brought on 8 January 2016 — La tarte tropézienne v OHIM (LA TARTE TROPÉZIENNE 1955. SAINT-TROPEZ) | 22 |
| 2016/C 090/31 | Case T-13/16: Action brought on 15 January 2016 — Gauff v OHIM — H.P. Gauff Ingenieure (GAUFF) | 23 |
| 2016/C 090/32 | Case T-14/16: Action brought on 8 January 2016 — Apimab Laboratoires and Others v Commission | 23 |
| 2016/C 090/33 | Case T-15/16: Action brought on 14 January 2016 — Pandalis v OHIM– LR Health & Beauty Systems (Cystus) | 25 |
| 2016/C 090/34 | Case T-16/16: Action brought on 19 January 2016 — Mast-Jägermeister v OHIM (Beaker) | 25 |
| 2016/C 090/35 | Case T-18/16: Action brought on 18 January 2016 — DMC v OHIM — Etike’ International (De Giusti Orgoglio) | 26 |
| | European Union Civil Service Tribunal |
| 2016/C 090/36 | Case F-148/15 R: Order of the President of the Civil Service Tribunal of 20 January 2016 — Brouillard v Commission (Civil Service — Non-admission to the tests in a competition — Interim proceedings — Application for interim measures — Lack of urgency) | 27 |
| 2016/C 090/37 | Case F-85/15: Order of the Civil Service Tribunal of 27 January 2016 — Glantenay and Others v Commission | 27 |

V   Announcements

COURT PROCEEDINGS

Court of Justice

2016/C 090/02

Case C-500/15 P: Appeal brought on 21 September 2015 by TVR Italia Srl against the judgment of the General Court (Fourth Chamber) of 15 July 2015 in TVR Automotive v OHIM — TVR Italia (Case T-398/13)

2

2016/C 090/03

Case C-564/15: Request for a preliminary ruling from the Kecskeméti Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 4 November 2015 — Tibor Farkas v Nemzeti Adó- és Vámhivatal Dél-alfödi Regionális Adó Főigazgatósága

2

2016/C 090/04

Case C-566/15: Request for a preliminary ruling from the Kammergericht Berlin (Germany) lodged on 3 November 2015 — Konrad Erzberger v TUI AG

3

2016/C 090/05

Case C-571/15: Request for a preliminary ruling from the Hessisches Finanzgericht (Germany) lodged on 6 November 2015 — Wallenborn Transports SA v Hauptzollamt Gießen

3

2016/C 090/06

Case C-605/15: Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 17 November 2015 — Minister Finansów v Aviva Towarzystwo Ubezpieczeń na Życie S.A. w Warszawie

4

2016/C 090/07

Case C-641/15: Request for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 2 December 2015 — Verwertungsgesellschaft Rundfunk GmbH v Hettegger Hotel Edelweiss GmbH

5

2016/C 090/08

Case C-645/15: Request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 3 December 2015 — Bund Naturschutz in Bayern e.V., Harald Wilde v Freistaat Bayern

5

2016/C 090/09

Case C-670/15: Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 15 December 2015 — Jan Šalplachta

6

2016/C 090/10

Case C-671/15: Request for a preliminary ruling from the Cour de cassation (France) lodged on 14 December 2015 — Président de l’Autorité de la concurrence v Association des producteurs vendeurs d’endives (APVE), Association Comité économique régional agricole fruits et légumes de Bretagne (Cerafel), Société Fraileg, Société Prim’Santerre, Union des endiviers, Société Soleil du Nord, Comité économique fruits et légumes du Nord de la France (Celfnord), Association des producteurs d’endives de France (APEF), Section nationale de l’endive (SNE), Fédération du commerce de l’endive (FCE), Société France endives, Société Cambrésis Artois-Picardie endives (CAP’Endives), Société Marché de Phalempin, Société Primacoop, Société Coopérative agricole du marais audomarois (Sipema), Société Valois-Fruits, Société Groupe Perle du Nord, Ministre de l’économie, de l’industrie et du numérique

7

2016/C 090/11

Case C-672/15: Request for a preliminary ruling from the Tribunal de grande instance de Perpignan (France) lodged on 14 December 2015 — Procureur de la République v Noria Distribution SARL

8

2016/C 090/12

Case C-677/15 P: Appeal brought on 16 December 2015 by Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment of the General Court (Fourth Chamber) delivered on 7 October 2015 in Case T-299/11: European Dynamics Luxembourg SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, European Dynamics Belgium SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

8

2016/C 090/13

Case C-695/15: Request for a preliminary ruling from the Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 23 December 2015 — Shiraz Baig Mirza v Bevándorlási és Állampolgársági Hivatal

10

2016/C 090/14

Case C-8/16: Request for a preliminary ruling from the Tribunale di Frosinone (Italy) lodged on 5 January 2016 — Criminal proceedings against Paola Tonachella

11

2016/C 090/15

Case C-17/16: Request for a preliminary ruling from the Cour de cassation (France) lodged on 12 January 2016 — Oussama El Dakkak, Intercontinental SARL v Administration des douanes et des droits indirects

11

2016/C 090/16

Case C-30/16: Action brought on 18 January 2016 — European Commission v Federal Republic of Germany

12

General Court

2016/C 090/17

Case T-427/12: Judgment of the General Court of 28 January 2016 — Austria v Commission (State Aid — Banking sector — Aid implemented by Germany and Austria for the benefit of Bayerische Landesbank in the course of its restructuring — Decision declaring the aid compatible with the internal market, provided that certain conditions are met — Repeal of the initial decision drawn up in a language other than that of the Member State — Action for annulment — Challengeable act — Admissibility — Definition of State aid — Advantage — Rights of defence — Obligation to state reasons)

13

2016/C 090/18

Case T-443/13: Judgment of the General Court of 21 January 2016 — Makhlouf v Council (Common foreign and security policy — Restrictive measures against Syria — Freezing of funds — Obligation to state reasons — Rights of defence — Right to effective judicial protection — Manifest error of assessment — Right to property — Right to respect for private life — Proportionality)

13

2016/C 090/19

Case T-674/13: Judgment of the General Court of 28 January 2016 — Gugler France v OHIM — Gugler (GUGLER) (Community trade mark — Invalidity proceedings — Community figurative mark GUGLER — Absolute ground for refusal — Article 52(1)(b) of Regulation (EC) No 207/2009 — Relative ground for refusal — Article 8(4) and Article 53(1)(c) of Regulation No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009 — Ground raised by the Court of its own motion)

14

2016/C 090/20

Case T-62/14: Order of the General Court of 21 January 2016 — BR IP Holder v OHIM — Greyleg Investments (HOKEY POKEY) (Community trade mark — Opposition proceedings — Application for Community word mark HOKEY POKEY — Unregistered earlier national word mark — Proof of use — Right to prohibit use of the mark sought — Article 8(4) of Regulation (EC) No 207/2009 — Right of a Member State — Obligation to state reasons — Raised by the Court of its own motion)

15

2016/C 090/21

Case T-782/14: Judgment of the General Court of 27 January 2016 — DF v Commission (Appeal — Civil service — Officials — Remuneration — Secondment in the interest of the service — Expatriation allowance — Condition set out in Article 4(1)(b) of Annex VII to the Staff Regulations — Recovery of undue payments)

15

2016/C 090/22

Case T-802/14: Judgment of the General Court of 21 January 2016 — Laboratorios Ern v OHIM — michelle menard (Lenah. C) (Community trade mark — Opposition proceedings — Application for Community word mark Lenah.C — Earlier national word mark LEMA — Relative grounds for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

16

2016/C 090/23

Case T-75/15: Judgment of the General Court of 21 January 2016 — Rod Leichtmetallräder v OHIM — Rodi TR (ROD) (Community trade mark — Invalidity proceedings — Community figurative mark ROD — Earlier national figurative marks RODI — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 — Earlier opposition proceedings — Rule 39(3) of Regulation (EC) No 2868/95)

16

2016/C 090/24

Case T-746/15 R: Order of the President of the General Court of 18 January 2016 — Biofa v Commission (Interim measures — Plant protection product — Approval of the basic substance sodium hydrogen carbonate — Application for suspension of operation — Lack of urgency)

17

2016/C 090/25

Case T-602/15: Action brought on 23 October 2015 — Jenkinson v Council and Others

17

2016/C 090/26

Case T-678/15: Action brought on 23 November 2015 — Novartis v OHIM (Representation of a crescent in black and white)

19

2016/C 090/27

Case T-679/15: Action brought on 23 November 2015 — Novartis v OHIM (Representation of a crescent in green and white)

20

2016/C 090/28

Case T-736/15: Action brought on 17 December 2015 — Aldi v OHIM — Sky (SKYLITE)

20

2016/C 090/29

Case T-778/15: Action brought on 28 December 2015 — It Works v OHIM — KESA Holdings Luxembourg (IT it WORKS)

21

2016/C 090/30

Case T-7/16: Action brought on 8 January 2016 — La tarte tropézienne v OHIM (LA TARTE TROPÉZIENNE 1955. SAINT-TROPEZ)

22

2016/C 090/31

Case T-13/16: Action brought on 15 January 2016 — Gauff v OHIM — H.P. Gauff Ingenieure (GAUFF)

23

2016/C 090/32

Case T-14/16: Action brought on 8 January 2016 — Apimab Laboratoires and Others v Commission

23

2016/C 090/33

Case T-15/16: Action brought on 14 January 2016 — Pandalis v OHIM– LR Health & Beauty Systems (Cystus)

25

2016/C 090/34

Case T-16/16: Action brought on 19 January 2016 — Mast-Jägermeister v OHIM (Beaker)

25

2016/C 090/35

Case T-18/16: Action brought on 18 January 2016 — DMC v OHIM — Etike’ International (De Giusti Orgoglio)

26

European Union Civil Service Tribunal

2016/C 090/36

Case F-148/15 R: Order of the President of the Civil Service Tribunal of 20 January 2016 — Brouillard v Commission (Civil Service — Non-admission to the tests in a competition — Interim proceedings — Application for interim measures — Lack of urgency)

27

2016/C 090/37

Case F-85/15: Order of the Civil Service Tribunal of 27 January 2016 — Glantenay and Others v Commission

27

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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

| 7.3.2016 | EN | Official Journal of the European Union | C 90/1 |
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7.3.2016

EN

Official Journal of the European Union

C 90/1

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

(2016/C 090/01)

Last publication

OJ C 78, 29.2.2016

Past publications

OJ C 68, 22.2.2016

OJ C 59, 15.2.2016

OJ C 48, 8.2.2016

OJ C 38, 1.2.2016

OJ C 27, 25.1.2016

OJ C 16, 18.1.2016

These texts are available on:

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

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V Announcements

COURT PROCEEDINGS

Court of Justice

| 7.3.2016 | EN | Official Journal of the European Union | C 90/2 |
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7.3.2016

EN

Official Journal of the European Union

C 90/2

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Appeal brought on 21 September 2015 by TVR Italia Srl against the judgment of the General Court (Fourth Chamber) of 15 July 2015 in TVR Automotive v OHIM — TVR Italia (Case T-398/13)

(Case C-500/15 P)

(2016/C 090/02)

Language of the case: Italian

Parties

Appellant: TVR Italia Srl (represented by: F. Caricato, avvocato)

Other parties to the proceedings: TVR Automotive Ltd and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, acting as Agent)

By order of 14 January 2016 the Court (Ninth Chamber) dismissed the appeal.

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/2 |
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7.3.2016

EN

Official Journal of the European Union

C 90/2

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Request for a preliminary ruling from the Kecskeméti Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 4 November 2015 — Tibor Farkas v Nemzeti Adó- és Vámhivatal Dél-alfödi Regionális Adó Főigazgatósága

(Case C-564/15)

(2016/C 090/03)

Language of the case: Hungarian

Referring court

Kecskeméti Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Applicant: Tibor Farkas

Defendant: Nemzeti Adó- és Vámhivatal Dél-alfödi Regionális Adó Főigazgatósága

Questions referred

| 1. | Is a practice of the tax authority, based on the provisions of the Law on VAT, compatible with the provisions of the VAT Directive, (1) in particular the principle of proportionality with the objectives of tax neutrality and the prevention of tax fraud, if, by that practice, that authority declares that a purchaser of an item of property (or recipient of a service) is liable for a tax difference in a situation in which the seller of the property (or supplier of the service) issues an invoice in accordance with the ordinary tax system for a transaction to which the reverse charge procedure applies and declares and pays to the Treasury the tax relating to that invoice, and the purchaser of the item of property (or recipient of the service), for his part, deducts the VAT paid to the issuer of the invoice, even though he may not exercise his right to deduct the VAT declared as a tax difference? |
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1.

Is a practice of the tax authority, based on the provisions of the Law on VAT, compatible with the provisions of the VAT Directive, (1) in particular the principle of proportionality with the objectives of tax neutrality and the prevention of tax fraud, if, by that practice, that authority declares that a purchaser of an item of property (or recipient of a service) is liable for a tax difference in a situation in which the seller of the property (or supplier of the service) issues an invoice in accordance with the ordinary tax system for a transaction to which the reverse charge procedure applies and declares and pays to the Treasury the tax relating to that invoice, and the purchaser of the item of property (or recipient of the service), for his part, deducts the VAT paid to the issuer of the invoice, even though he may not exercise his right to deduct the VAT declared as a tax difference?

| 2. | Is the imposition of a penalty for selecting an incorrect method of taxation in the case of a declaration of a tax difference, which also entails the imposition of a tax fine of 50 %, proportionate where the Treasury has not incurred any loss of revenue and there is no evidence of abuse? |
| --- | --- |

2.

Is the imposition of a penalty for selecting an incorrect method of taxation in the case of a declaration of a tax difference, which also entails the imposition of a tax fine of 50 %, proportionate where the Treasury has not incurred any loss of revenue and there is no evidence of abuse?

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(1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/3 |
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7.3.2016

EN

Official Journal of the European Union

C 90/3

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Request for a preliminary ruling from the Kammergericht Berlin (Germany) lodged on 3 November 2015 — Konrad Erzberger v TUI AG

(Case C-566/15)

(2016/C 090/04)

Language of the case: German

Referring court

Kammergericht Berlin

Parties to the main proceedings

Applicant: Konrad Erzberger

Defendant: TUI AG

Question referred

Is it compatible with Article 18 TFEU (non-discrimination) and Article 45 TFEU (freedom of movement for workers) for a Member State to grant the right to vote and stand as a candidate for the employees’ representatives in the supervisory body of a company only to those workers who are employed in establishments of the company or in affiliated companies within the domestic territory?

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/3 |
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7.3.2016

EN

Official Journal of the European Union

C 90/3

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Request for a preliminary ruling from the Hessisches Finanzgericht (Germany) lodged on 6 November 2015 — Wallenborn Transports SA v Hauptzollamt Gießen

(Case C-571/15)

(2016/C 090/05)

Language of the case: German

Referring court

Hessisches Finanzgericht

Parties to the main proceedings

Applicant: Wallenborn Transports SA

Defendant: Hauptzollamt Gießen

Questions referred

Question 1:

Is the VAT rule of a Member State which states that free zones of control type I (free ports) do not form part of the territory of the country one of the situations referred to in Article 156 as specified in the first subparagraph of Article 61 and in the first subparagraph of Article 71(1) of Directive 2006/112 on the common system of value added tax? (1)

If this question is answered in the affirmative:

Question 2:

Where goods are subject to customs duties, does the chargeable event also occur and VAT also become chargeable in accordance with the second subparagraph of Article 71(1) of Directive 2006/112 on the common system of value added tax when the chargeable event in respect of those duties occurs and those duties become chargeable, if the chargeable event in respect of those duties and the chargeability of those duties occurs within a free zone of control type I and the VAT legislation of the Member State to which the free zone belongs provides that free zones of control type I (free ports) do not form part of the territory of the country?

If Question 2 is answered in the negative:

Question 3:

Where goods transported under the external transit procedure without that procedure ending in a free zone of control type I are removed from customs supervision in the free zone so that a customs debt is incurred in respect of the goods under Article 203(1) of the Customs Code, (2) does the chargeable event occur and VAT become chargeable in respect of goods at the same time in accordance with another chargeable event, namely under Article 204(1)(a) of the Customs Code, because, prior to the act by means of which the goods were removed from customs supervision, the goods were not presented to customs at one of the customs offices competent in respect of the free zone situated within the territory of the country and the transit procedure was not ended there?

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(1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

(2)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/4 |
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7.3.2016

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Official Journal of the European Union

C 90/4

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Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 17 November 2015 — Minister Finansów v Aviva Towarzystwo Ubezpieczeń na Życie S.A. w Warszawie

(Case C-605/15)

(2016/C 090/06)

Language of the case: Polish

Referring court

Naczelny Sąd Administracyjny

Parties to the main proceedings

Appellant: Minister Finansów

Respondent: Aviva Towarzystwo Ubezpieczeń na Życie S.A. w Warszawie

Questions referred

| 1. | Is a provision of national law concerning the exemption from VAT of independent groups of persons which does not lay down any criteria or procedures governing the fulfilment of the condition of distortion of competition compatible with Article 132(1)(f) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) in conjunction with Article 131 of the VAT Directive, and also with the principles of effectiveness, of legal certainty and of the protection of legitimate expectations? |
| --- | --- |

1.

Is a provision of national law concerning the exemption from VAT of independent groups of persons which does not lay down any criteria or procedures governing the fulfilment of the condition of distortion of competition compatible with Article 132(1)(f) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) in conjunction with Article 131 of the VAT Directive, and also with the principles of effectiveness, of legal certainty and of the protection of legitimate expectations?

| 2. | What criteria should be applied in assessing whether the condition of distortion of competition laid down in Article 132(1)(f) of the VAT Directive is fulfilled? |
| --- | --- |

2.

What criteria should be applied in assessing whether the condition of distortion of competition laid down in Article 132(1)(f) of the VAT Directive is fulfilled?

| 3. | Is the answer to the second question above affected by the fact that the independent group of persons provides the services to members who fall within the jurisdiction of different Member States? |
| --- | --- |

3.

Is the answer to the second question above affected by the fact that the independent group of persons provides the services to members who fall within the jurisdiction of different Member States?

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(1)  OJ 2006 L 347, p. 1.

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/5 |
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Request for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 2 December 2015 — Verwertungsgesellschaft Rundfunk GmbH v Hettegger Hotel Edelweiss GmbH

(Case C-641/15)

(2016/C 090/07)

Language of the case: German

Referring court

Handelsgericht Wien

Parties to the main proceedings

Applicant: Verwertungsgesellschaft Rundfunk GmbH

Defendant: Hettegger Hotel Edelweiss GmbH

Question referred

Is the condition of ‘against [payment] of an entrance fee’ laid down in Article 8(3) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (1) satisfied where;

| — | through the TV set made available in each room of a hotel, the hotel operator provides access to the signal for various television and radio channels (‘hotel room TV’), and |
| --- | --- |

—

through the TV set made available in each room of a hotel, the hotel operator provides access to the signal for various television and radio channels (‘hotel room TV’), and

| — | for use of the room (including hotel room TV), the hotel operator charges a fee per room per night (room rate) which also includes use of the TV set and the television and radio channels to which access is thereby provided? |
| --- | --- |

—

for use of the room (including hotel room TV), the hotel operator charges a fee per room per night (room rate) which also includes use of the TV set and the television and radio channels to which access is thereby provided?

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(1)  OJ 2006 L 376, p. 28.

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/5 |
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Request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 3 December 2015 — Bund Naturschutz in Bayern e.V., Harald Wilde v Freistaat Bayern

(Case C-645/15)

(2016/C 090/08)

Language of the case: German

Referring court

Bayerischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicants: Bund Naturschutz in Bayern e.V., Harald Wilde

Defendant: Freistaat Bayern

Questions referred

| 1. | Should Point 7(c) of Annex I to Directive 2011/92/EU (1) of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (the ‘EIA Directive’) be interpreted as covering also the widening of existing roads with four or more lanes? |
| --- | --- |

1.

Should Point 7(c) of Annex I to Directive 2011/92/EU (1) of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (the ‘EIA Directive’) be interpreted as covering also the widening of existing roads with four or more lanes?

| 2. | If Question 1 is answered in the affirmative:
  Is Point 7(c) of Annex I to the EIA Directive more specific than Point 7(b) of Annex I to that directive and does it for that reason take priority in application? |
| --- | --- |

2.

If Question 1 is answered in the affirmative:

Is Point 7(c) of Annex I to the EIA Directive more specific than Point 7(b) of Annex I to that directive and does it for that reason take priority in application?

| 3. | If Question 1 or Question 2 is answered in the negative:
  Does the term ‘express road’ in Point 7(b) of Annex I to the EIA Directive presuppose that the road section in question is a main international traffic artery within the meaning of the European Agreement on Main International Traffic Arteries? |
| --- | --- |

3.

If Question 1 or Question 2 is answered in the negative:

Does the term ‘express road’ in Point 7(b) of Annex I to the EIA Directive presuppose that the road section in question is a main international traffic artery within the meaning of the European Agreement on Main International Traffic Arteries?

| 4. | If Questions 1, 2 or 3 are answered in the negative:
  Does the term ‘construction’ in Point 7(b) of Annex I to the EIA Directive apply to road-widening under which the existing route of the road does not undergo any significant alteration? |
| --- | --- |

4.

If Questions 1, 2 or 3 are answered in the negative:

Does the term ‘construction’ in Point 7(b) of Annex I to the EIA Directive apply to road-widening under which the existing route of the road does not undergo any significant alteration?

| 5. | If Question 4 is answered in the affirmative:
  Does the term ‘construction’ in Point 7(b) of Annex I to the EIA Directive presuppose a minimum length with regard to the road section in question? If so, must this involve a continuous section of road? If so, is the minimum length more than a continuous length of 2,6 kilometres or, where the lengths of multiple separate sections of road are to be added together, more than a total of 4,4 kilometres? |
| --- | --- |

5.

If Question 4 is answered in the affirmative:

Does the term ‘construction’ in Point 7(b) of Annex I to the EIA Directive presuppose a minimum length with regard to the road section in question? If so, must this involve a continuous section of road? If so, is the minimum length more than a continuous length of 2,6 kilometres or, where the lengths of multiple separate sections of road are to be added together, more than a total of 4,4 kilometres?

| 6. | If Question 5 is answered in the negative:
  Does the second reference in Point 7(b) of Annex I to the EIA Directive (construction of express roads) apply to a road-widening measure within a built-up area within the meaning of the European Agreement on Main International Traffic Arteries? |
| --- | --- |

6.

If Question 5 is answered in the negative:

Does the second reference in Point 7(b) of Annex I to the EIA Directive (construction of express roads) apply to a road-widening measure within a built-up area within the meaning of the European Agreement on Main International Traffic Arteries?

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(1)  OJ 2012 L 26, p. 1.

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/6 |
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Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 15 December 2015 — Jan Šalplachta

(Case C-670/15)

(2016/C 090/09)

Language of the case: German

Referring court

Bundesarbeitsgericht

Party to the main proceedings

Applicant: Jan Šalplachta

Question referred

Does the right of a natural person to effective access to justice in a cross-border dispute within the meaning of Articles 1 and 2 of Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes (1) require that legal aid granted by the Federal Republic of Germany must extend to the costs incurred by the applicant for the translation of the declaration and supporting documents annexed to the legal aid application, where the applicant, at the same time as bringing the action, applies for legal aid to the court hearing the case, which is also the competent receiving authority within the meaning of Article 13(1)(b) of the directive, and he has himself arranged for the translation to be made?

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(1)  OJ 2003 L 26, p. 41, corrigendum OJ 2003 L 32, p. 1.

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/7 |
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Request for a preliminary ruling from the Cour de cassation (France) lodged on 14 December 2015 — Président de l’Autorité de la concurrence v Association des producteurs vendeurs d’endives (APVE), Association Comité économique régional agricole fruits et légumes de Bretagne (Cerafel), Société Fraileg, Société Prim’Santerre, Union des endiviers, Société Soleil du Nord, Comité économique fruits et légumes du Nord de la France (Celfnord), Association des producteurs d’endives de France (APEF), Section nationale de l’endive (SNE), Fédération du commerce de l’endive (FCE), Société France endives, Société Cambrésis Artois-Picardie endives (CAP’Endives), Société Marché de Phalempin, Société Primacoop, Société Coopérative agricole du marais audomarois (Sipema), Société Valois-Fruits, Société Groupe Perle du Nord, Ministre de l’économie, de l’industrie et du numérique

(Case C-671/15)

(2016/C 090/10)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Président de l’Autorité de la concurrence

Defendants: Association des producteurs vendeurs d’endives (APVE), Association Comité économique régional agricole fruits et légumes de Bretagne (Cerafel), Société Fraileg, Société Prim’Santerre, Union des endiviers, Société Soleil du Nord, Comité économique fruits et légumes du Nord de la France (Celfnord), Association des producteurs d’endives de France (APEF), Section nationale de l’endive (SNE), Fédération du commerce de l’endive (FCE), Société France endives, Société Cambrésis Artois-Picardie endives (CAP’Endives), Société Marché de Phalempin, Société Primacoop, Société Coopérative agricole du marais audomarois (Sipema), Société Valois-Fruits, Société Groupe Perle du Nord, Ministre de l’économie, de l’industrie et du numérique

Questions referred

| 1. | Can agreements, decisions or practices of producer organisations, associations of producer organisations and professional organisations which could be classified as anticompetitive under Article 101 TFEU escape the prohibition laid down in that article on the sole ground that they could be linked to the responsibilities assigned to those organisations under the common organisation of the market, even if they are not covered by any of the general derogations provided for in turn by Article 2 of Regulation (EEC) No 26 of 4 April 1962 (1) and Regulation (EC) No 1184/2006 of 24 July 2006, (2) and by Article 176 of Regulation (EC) No 1234/2007 of 22 October 2007? (3) |
| --- | --- |

1.

Can agreements, decisions or practices of producer organisations, associations of producer organisations and professional organisations which could be classified as anticompetitive under Article 101 TFEU escape the prohibition laid down in that article on the sole ground that they could be linked to the responsibilities assigned to those organisations under the common organisation of the market, even if they are not covered by any of the general derogations provided for in turn by Article 2 of Regulation (EEC) No 26 of 4 April 1962 (1) and Regulation (EC) No 1184/2006 of 24 July 2006, (2) and by Article 176 of Regulation (EC) No 1234/2007 of 22 October 2007? (3)

| 2. | If so, must Article 11(1) of Regulation (EC) No 2200/1996, (4) Article 3(1) of Regulation (EC) No 1182/2007 (5) and the first paragraph of Article 122 of Regulation (EC) No 1234/2007, which include, among the objectives assigned to producer organisations and their associations, those of stabilising producer prices and adjusting production to demand, particularly in terms of quantity, be interpreted as meaning that practices whereby those organisations or their associations collectively fix minimum prices, concert on the quantities placed on the market or exchange strategic information escape the prohibition of anticompetitive agreements, decisions and practices in so far as they are aimed at achieving those objectives? |
| --- | --- |

2.

If so, must Article 11(1) of Regulation (EC) No 2200/1996, (4) Article 3(1) of Regulation (EC) No 1182/2007 (5) and the first paragraph of Article 122 of Regulation (EC) No 1234/2007, which include, among the objectives assigned to producer organisations and their associations, those of stabilising producer prices and adjusting production to demand, particularly in terms of quantity, be interpreted as meaning that practices whereby those organisations or their associations collectively fix minimum prices, concert on the quantities placed on the market or exchange strategic information escape the prohibition of anticompetitive agreements, decisions and practices in so far as they are aimed at achieving those objectives?

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(1)  Council: Regulation (EEC) No 26 of 4 April 1962 applying certain rules of competition to production of and trade in agricultural products.

(2)  Council Regulation (EC) No 1184/2006 of 24 July 2006 applying certain rules of competition to the production of, and trade in, agricultural products (OJ 2006 L 214, p. 7).

(3)  Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (OJ 2007 L 299, p. 1).

(4)  Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organization of the market in fruit and vegetables (OJ 1996 L 297, p. 1).

(5)  Council Regulation (EC) No 1182/2007 of 26 September 2007 laying down specific rules as regards the fruit and vegetable sector, amending Directives 2001/112/EC and 2001/113/EC and Regulations (EEC) No 827/68, (EC) No 2200/96, (EC) No 2201/96, (EC) No 2826/2000, (EC) No 1782/2003 and (EC) No 318/2006 and repealing Regulation (EC) No 2202/96 (OJ 2007 L 273, p. 1).

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/8 |
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Request for a preliminary ruling from the Tribunal de grande instance de Perpignan (France) lodged on 14 December 2015 — Procureur de la République v Noria Distribution SARL

(Case C-672/15)

(2016/C 090/11)

Language of the case: French

Referring court

Tribunal de grande instance de Perpignan

Parties to the main proceedings

Prosecutor: Procureur de la République

Defendant: Noria Distribution SARL

Questions referred

| 1. | Do Directive 2002/46/EC (1) and Community principles of free movement of goods and of mutual recognition preclude the laying down of national legislation such as the order of 9 May 2006 which refuses any mutual recognition procedure so far as concerns food supplements based on vitamins and minerals from another Member State by excluding the application of a streamlined procedure in respect of products lawfully marketed in another Member State that are based on nutrients [whose values exceed the limits set] by the order of 9 May 2006? |
| --- | --- |

1.

Do Directive 2002/46/EC (1) and Community principles of free movement of goods and of mutual recognition preclude the laying down of national legislation such as the order of 9 May 2006 which refuses any mutual recognition procedure so far as concerns food supplements based on vitamins and minerals from another Member State by excluding the application of a streamlined procedure in respect of products lawfully marketed in another Member State that are based on nutrients [whose values exceed the limits set] by the order of 9 May 2006?

| 2. | Does Directive 2002/46, in particular in Article 5, as well as the principles resulting from Community case-law on the provisions relating to the free movement of goods, permit the maximum daily doses of vitamins and minerals to be set in proportion to the recommended daily allowances by adopting a value equal to three times the recommended daily allowances for nutrients presenting the least risk, a value equal to the recommended daily allowances for nutrients presenting a risk of the upper safe level being exceeded and a value below the recommended daily allowances or even zero for nutrients involving the most risk? |
| --- | --- |

2.

Does Directive 2002/46, in particular in Article 5, as well as the principles resulting from Community case-law on the provisions relating to the free movement of goods, permit the maximum daily doses of vitamins and minerals to be set in proportion to the recommended daily allowances by adopting a value equal to three times the recommended daily allowances for nutrients presenting the least risk, a value equal to the recommended daily allowances for nutrients presenting a risk of the upper safe level being exceeded and a value below the recommended daily allowances or even zero for nutrients involving the most risk?

| 3. | Does Directive 2002/46, as well as the principles resulting from Community case-law on the provisions relating to the free movement of goods, permit the doses to be set [in the light of] solely national scientific opinions even though recent international scientific opinions [conclude in favour of] higher doses in identical conditions of use? |
| --- | --- |

3.

Does Directive 2002/46, as well as the principles resulting from Community case-law on the provisions relating to the free movement of goods, permit the doses to be set [in the light of] solely national scientific opinions even though recent international scientific opinions [conclude in favour of] higher doses in identical conditions of use?

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(1)  Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (OJ 2002 L 183, p. 51).

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/8 |
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Appeal brought on 16 December 2015 by Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment of the General Court (Fourth Chamber) delivered on 7 October 2015 in Case T-299/11: European Dynamics Luxembourg SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, European Dynamics Belgium SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-677/15 P)

(2016/C 090/12)

Language of the case: English

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: N. Bambara, agent, P. Wytinck, B. Hoorelbeke, lawyers)

Other parties to the proceedings: European Dynamics Luxembourg SA, Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, European Dynamics Belgium SA

Form of order sought

The appellant claims that the Court should:

| — | In principal






  — | Annul the Contested Judgment of the General Court in so far as it holds that the award decision is vitiated by various instances of substantive unlawful conduct, including a breach of the principles of equal opportunities and transparency, manifest errors of assessment and several failures to state reasons (point 1 of the operative part of the Contested Judgment), and in so far as it orders the European Union to pay damages to European Dynamics Luxembourg for loss of opportunity to be awarded the framework contract (point 2 of the operative part of the Contested Judgment), |
| --- | --- | --- |

—

In principal

—

Annul the Contested Judgment of the General Court in so far as it holds that the award decision is vitiated by various instances of substantive unlawful conduct, including a breach of the principles of equal opportunities and transparency, manifest errors of assessment and several failures to state reasons (point 1 of the operative part of the Contested Judgment), and in so far as it orders the European Union to pay damages to European Dynamics Luxembourg for loss of opportunity to be awarded the framework contract (point 2 of the operative part of the Contested Judgment),

| — | reject the Application for annulment of the contested award decision and the request for damages as brought forward by the Applicant in first instance; |
| --- | --- |

—

reject the Application for annulment of the contested award decision and the request for damages as brought forward by the Applicant in first instance;

| — | Subsidiary order, annul the Contested Judgment of the General Court in so far as it holds that the award decision is vitiated by various instances of substantive unlawful conduct, including a breach of the principles of equal opportunities and transparency, manifest errors of assessment and several failures to state reasons, and in so far as it orders the European Union to pay damages to European Dynamics Luxembourg for loss of opportunity to be awarded the framework contract, and refer the case back to the General Court; |
| --- | --- |

—

Subsidiary order, annul the Contested Judgment of the General Court in so far as it holds that the award decision is vitiated by various instances of substantive unlawful conduct, including a breach of the principles of equal opportunities and transparency, manifest errors of assessment and several failures to state reasons, and in so far as it orders the European Union to pay damages to European Dynamics Luxembourg for loss of opportunity to be awarded the framework contract, and refer the case back to the General Court;

| — | Secondary subsidiary order, annul the Contested Judgment of the General Court in so far as it orders the European Union to pay damages to European Dynamics Luxembourg for loss of opportunity to be awarded the framework contract, and refer the case back to the General Court; |
| --- | --- |

—

Secondary subsidiary order, annul the Contested Judgment of the General Court in so far as it orders the European Union to pay damages to European Dynamics Luxembourg for loss of opportunity to be awarded the framework contract, and refer the case back to the General Court;

| — | Order the Applicants in first instance to pay the entire costs of the procedure. |
| --- | --- |

—

Order the Applicants in first instance to pay the entire costs of the procedure.

Pleas in law and main arguments

| 1. | The Appeal is based on four main grounds of appeal, notably that: 1) the General Court erred in law in the interpretation and application of the principles of equal opportunities and transparency and has violated its duty to state reasons as laid down in Article 36 of the Statute of the Court, 2) the General Court erred in law in the interpretation and application of the test regarding manifest errors of assessment, 3) the General Court erred in law in the application of Article 100 (2) of the General Financial Regulation (1) read in conjunction with the second paragraph of Article 296 TFEU, and 4) the General Court erred in law by the award for damages on the basis of the loss of opportunity. |
| --- | --- |

1.

The Appeal is based on four main grounds of appeal, notably that: 1) the General Court erred in law in the interpretation and application of the principles of equal opportunities and transparency and has violated its duty to state reasons as laid down in Article 36 of the Statute of the Court, 2) the General Court erred in law in the interpretation and application of the test regarding manifest errors of assessment, 3) the General Court erred in law in the application of Article 100 (2) of the General Financial Regulation (1) read in conjunction with the second paragraph of Article 296 TFEU, and 4) the General Court erred in law by the award for damages on the basis of the loss of opportunity.

| 2. | In the First Ground of Appeal, the Appellant alleges that the General Court erred in law by not assessing and establishing whether the introduction of weighting criteria for the sub-criteria of the first technical award criteria which were not communicated to the tenderers before the submission of their tenders 1) altered the criteria for the award of the contract set out in the contract documents or the contract notice, 2) contained elements which, if they had been known at the time the tenders were prepared, could have affected that preparation, or 3) were adopted on the basis of matters likely to give rise to discrimination against one of the tenderers. In the second part of the first ground of appeal, the Appellant also demonstrates that the General Court has violated its duty to state reasons as imposed by Article 36 of the Statute of the Court of Justice as it does not provide any reason why it considers that the introduction of unannounced weighting factors for the sub-criteria used in the first award criterion had a detrimental effect on the chances of the applicants in first instance to be ranked in first or second place in the cascade for the disputed Call for Tenders. |
| --- | --- |

2.

In the First Ground of Appeal, the Appellant alleges that the General Court erred in law by not assessing and establishing whether the introduction of weighting criteria for the sub-criteria of the first technical award criteria which were not communicated to the tenderers before the submission of their tenders 1) altered the criteria for the award of the contract set out in the contract documents or the contract notice, 2) contained elements which, if they had been known at the time the tenders were prepared, could have affected that preparation, or 3) were adopted on the basis of matters likely to give rise to discrimination against one of the tenderers. In the second part of the first ground of appeal, the Appellant also demonstrates that the General Court has violated its duty to state reasons as imposed by Article 36 of the Statute of the Court of Justice as it does not provide any reason why it considers that the introduction of unannounced weighting factors for the sub-criteria used in the first award criterion had a detrimental effect on the chances of the applicants in first instance to be ranked in first or second place in the cascade for the disputed Call for Tenders.

| 3. | In the Second Ground of Appeal, the Appellant submits that the General Court erred in law by not examining whether the established manifest errors of assessment made by the evaluation committee in the evaluation of European Dynamics’ tender for the first and second award criterion could have had an impact on the final outcome of the contested award decision. The Appellant points out the General Court is required to examine whether the established manifest errors of assessment would lead to a different outcome for the award procedure on two accounts. First, the General Court has to examine whether, if those manifest errors of assessment had not been committed, the rejected tenderer would have obtained sufficient points to be ranked higher in the cascade. Second, the General Court needs to examine whether the established manifest errors have an effect on the score awarded for a given (sub-)criterion in case there are several other reasons (which are not vitiated by a manifest error of assessment) which equally support the scores awarded. |
| --- | --- |

3.

In the Second Ground of Appeal, the Appellant submits that the General Court erred in law by not examining whether the established manifest errors of assessment made by the evaluation committee in the evaluation of European Dynamics’ tender for the first and second award criterion could have had an impact on the final outcome of the contested award decision. The Appellant points out the General Court is required to examine whether the established manifest errors of assessment would lead to a different outcome for the award procedure on two accounts. First, the General Court has to examine whether, if those manifest errors of assessment had not been committed, the rejected tenderer would have obtained sufficient points to be ranked higher in the cascade. Second, the General Court needs to examine whether the established manifest errors have an effect on the score awarded for a given (sub-)criterion in case there are several other reasons (which are not vitiated by a manifest error of assessment) which equally support the scores awarded.

| 4. | In the Third Ground of Appeal, the Appellant puts forward that the General Court erred in law by examining each and every comment made by the evaluation committee in isolation and not in there broader context, and as such applied a stricter test regarding the duty to state reasons as the one that follows from the settled case-law of the Court of Justice. In addition, the General Court erred in law by not examining whether the other reasons (which are not vitiated by a failure to state reasons) put forward by OHIM to justify the scores awarded for the first award criterion, could not still be sufficient to confirm the validity of the score awarded. For that reason the General Court erred in law in annulling the contested decision on the grounds of a violation of Article 100 (2) General Financial Regulation read in conjunction with Article 296 TFEU. |
| --- | --- |

4.

In the Third Ground of Appeal, the Appellant puts forward that the General Court erred in law by examining each and every comment made by the evaluation committee in isolation and not in there broader context, and as such applied a stricter test regarding the duty to state reasons as the one that follows from the settled case-law of the Court of Justice. In addition, the General Court erred in law by not examining whether the other reasons (which are not vitiated by a failure to state reasons) put forward by OHIM to justify the scores awarded for the first award criterion, could not still be sufficient to confirm the validity of the score awarded. For that reason the General Court erred in law in annulling the contested decision on the grounds of a violation of Article 100 (2) General Financial Regulation read in conjunction with Article 296 TFEU.

| 5. | In the Fourth Ground of Appeal, the Appellant alleges that the General Court erred in law in awarding damages to the first applicant in first instance as one of the cumulative conditions for incurring non-contractual liability of EU institutions (i.e. the presence of unlawful conduct) has not been demonstrated. In subsidiary order, the Appellant submits that, even if the Application for annulment of OHIM would only succeed on its first ground of appeal, the contested judgment should still be annulled insofar as it imposes the obligation to pay damages as in that case the existence of a causal link between the remaining unlawful conduct (manifest error of assessment and failure to state reasons) and the alleged harm is not demonstrated. In more subsidiary order, the Appellant asks that the judgment should be annulled on the ground of a contradiction between the considerations of the contested judgment and the second indent of the operative part of the contested judgment. In most subsidiary order, the Appellant points out that, in any event, the operative part of the contested judgment contains a material error as it orders the European Union instead of OHIM to compensate European Dynamics Luxembourg for the loss of opportunity. |
| --- | --- |

5.

In the Fourth Ground of Appeal, the Appellant alleges that the General Court erred in law in awarding damages to the first applicant in first instance as one of the cumulative conditions for incurring non-contractual liability of EU institutions (i.e. the presence of unlawful conduct) has not been demonstrated. In subsidiary order, the Appellant submits that, even if the Application for annulment of OHIM would only succeed on its first ground of appeal, the contested judgment should still be annulled insofar as it imposes the obligation to pay damages as in that case the existence of a causal link between the remaining unlawful conduct (manifest error of assessment and failure to state reasons) and the alleged harm is not demonstrated. In more subsidiary order, the Appellant asks that the judgment should be annulled on the ground of a contradiction between the considerations of the contested judgment and the second indent of the operative part of the contested judgment. In most subsidiary order, the Appellant points out that, in any event, the operative part of the contested judgment contains a material error as it orders the European Union instead of OHIM to compensate European Dynamics Luxembourg for the loss of opportunity.

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(1)  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002

OJ L 298, p. 1

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/10 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/10

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Request for a preliminary ruling from the Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 23 December 2015 — Shiraz Baig Mirza v Bevándorlási és Állampolgársági Hivatal

(Case C-695/15)

(2016/C 090/13)

Language of the case: Hungarian

Referring court

Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Applicant: Shiraz Baig Mirza

Defendant: Bevándorlási és Állampolgársági Hivatal

Questions referred

| 1. | Should Article 3(3) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (1) (‘the Dublin III Regulation’) be interpreted as meaning that






  (a) | Member States may exercise the right to send an applicant to a safe third country only before determining the Member State responsible or that they may also exercise that right after making that determination? |
| --- | --- | --- |

1.

Should Article 3(3) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (1) (‘the Dublin III Regulation’) be interpreted as meaning that

(a)

Member States may exercise the right to send an applicant to a safe third country only before determining the Member State responsible or that they may also exercise that right after making that determination?

| (b) | Is the answer to the preceding question different if the Member State establishes that it is the State responsible not at the time when the application is first lodged with its authorities in accordance with Article 7(2) of the Dublin III Regulation and Chapter III of that regulation but when it receives the applicant from another Member State following a transfer or take back request pursuant to Chapters V and VI of the Dublin III Regulation? |
| --- | --- |

(b)

Is the answer to the preceding question different if the Member State establishes that it is the State responsible not at the time when the application is first lodged with its authorities in accordance with Article 7(2) of the Dublin III Regulation and Chapter III of that regulation but when it receives the applicant from another Member State following a transfer or take back request pursuant to Chapters V and VI of the Dublin III Regulation?

| 2. | If, on the basis of the interpretation given by the Court in response to the first question, the right to send an applicant to a safe third country may also be exercised after a transfer carried out pursuant to the Dublin procedure:
  Can Article 3(3) of the Dublin III Regulation be interpreted as meaning that Member States may also exercise that right if, in the course of the Dublin procedure, the Member State carrying out the transfer has not been informed of the precise national rules governing the exercise of that right or of the practice applied by the national authorities? |
| --- | --- |

2.

If, on the basis of the interpretation given by the Court in response to the first question, the right to send an applicant to a safe third country may also be exercised after a transfer carried out pursuant to the Dublin procedure:

Can Article 3(3) of the Dublin III Regulation be interpreted as meaning that Member States may also exercise that right if, in the course of the Dublin procedure, the Member State carrying out the transfer has not been informed of the precise national rules governing the exercise of that right or of the practice applied by the national authorities?

| 3. | Can Article 18(2) of the Dublin III Regulation be interpreted as meaning that, in the case of an applicant who has been taken back pursuant to Article 18[(1)](c) of that regulation, the procedure must be continued at the stage where it was discontinued during the preceding procedure? |
| --- | --- |

3.

Can Article 18(2) of the Dublin III Regulation be interpreted as meaning that, in the case of an applicant who has been taken back pursuant to Article 18[(1)](c) of that regulation, the procedure must be continued at the stage where it was discontinued during the preceding procedure?

---

(1)  OJ 2013 L 180, p. 31.

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/11 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/11

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Request for a preliminary ruling from the Tribunale di Frosinone (Italy) lodged on 5 January 2016 — Criminal proceedings against Paola Tonachella

(Case C-8/16)

(2016/C 090/14)

Language of the case: Italian

Referring court

Tribunale di Frosinone

Party to the main proceedings

Paola Tonachella

Question referred

Must Article 49 et seq. and Article 56 et seq. of the Treaty on the Functioning of the European Union, as supplemented in the light of the principles set out in the judgment of the Court of Justice of 16 February 2012 in [Case C-72/10], be interpreted as precluding a provision of national legislation which makes it compulsory to transfer free of charge, at the time of the cessation of business owing to the expiry of the final term of a licence or as a result of measures revoking or terminating that licence, rights to use tangible and intangible property to collect bets and to manage betting and gaming?

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/11 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/11

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Request for a preliminary ruling from the Cour de cassation (France) lodged on 12 January 2016 — Oussama El Dakkak, Intercontinental SARL v Administration des douanes et des droits indirects

(Case C-17/16)

(2016/C 090/15)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Appellants: Oussama El Dakkak, Intercontinental SARL

Respondent: Administration des douanes et des droits indirects

Question referred

Must Article 3(1) of Regulation (EC) No 1889/2005 of 26 October 2005 (1) and Article 4(1) of Regulation (EC) No 562/2006 of 15 March 2006 (2) be interpreted as meaning that a national of a third State who is in the international transit area of an airport is not subject to the obligation to make a declaration under Article 3(1) of Regulation (EC) No 1889/2005 of 26 October 2005, or, on the contrary, must those provisions be interpreted as meaning that that national is subject to that obligation by virtue of having crossed an external border of the Community at one of the border crossing points referred to in Article 4(1) of Regulation (EC) No 562/2006 of 15 March 2006?

---

(1)  Regulation (EC) No 1889/2005 of the European Parliament and of the Council of 26 October 2005 on controls of cash entering or leaving the Community (OJ 2005 L 309, p. 9).

(2)  Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1).

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/12 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/12

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Action brought on 18 January 2016 — European Commission v Federal Republic of Germany

(Case C-30/16)

(2016/C 090/16)

Language of the case: German

Parties

Applicant: European Commission (represented by: J. Hottiaux and G. Braun, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

| — | declare that the Federal Republic of Germany has failed to fulfil its obligations under Directive 2006/126/EC, (1) since it has not fully transposed Article 4(1) and (3)(b), (4)(d), (f) and (h), Article 6(2) and Article 7(2)(b) of that directive; |
| --- | --- |

—

declare that the Federal Republic of Germany has failed to fulfil its obligations under Directive 2006/126/EC, (1) since it has not fully transposed Article 4(1) and (3)(b), (4)(d), (f) and (h), Article 6(2) and Article 7(2)(b) of that directive;

| — | order the Federal Republic of Germany to pay the costs. |
| --- | --- |

—

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The relevant provisions were to be adopted and published not later than 19 January 2011 and applied as from 19 January 2013.

---

(1)  Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (Recast) (OJ 2006 L 403, p. 18).

---

General Court

| 7.3.2016 | EN | Official Journal of the European Union | C 90/13 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/13

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Judgment of the General Court of 28 January 2016 — Austria v Commission

(Case T-427/12) (1)

((State Aid - Banking sector - Aid implemented by Germany and Austria for the benefit of Bayerische Landesbank in the course of its restructuring - Decision declaring the aid compatible with the internal market, provided that certain conditions are met - Repeal of the initial decision drawn up in a language other than that of the Member State - Action for annulment - Challengeable act - Admissibility - Definition of State aid - Advantage - Rights of defence - Obligation to state reasons))

(2016/C 090/17)

Language of the case: German

Parties

Applicant: Republic of Austria (represented by: C. Pesendorfer, M. Windisch, W. Peschorn and S. Ullreich, acting as Agents)

Defendant: European Commission (represented by: L. Flynn, T. Maxian Rusche and R. Sauer, acting as Agents)

Re:

Action for the annulment of Article 1(1)(d) and 1(2) of Commission Decision C (2012) 5062 final of 25 July 2012 on State aid SA.28487 granted by Germany and Austria to Bayerische Landesbank (C 16/09, ex N 254/09), and, following the repeal of that decision by Article 1 of Commission Decision (EU) 2015/657 of 5 February 2013 on State aid granted by Germany and Austria to Bayerische Landesbank (Case SA.28487 (C 16/09, ex N 254/09)) (OJ 2015 L 109, p. 1), for the annulment of Article 2(1)(d) and 2(2) of the latter decision.

Operative part of the judgment

The Court hereby:

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

1.

Dismisses the action;

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

2.

Orders the Republic of Austria to pay the costs.

---

(1)  OJ C 373, 1.12.2012.

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/13 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/13

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Judgment of the General Court of 21 January 2016 — Makhlouf v Council

(Case T-443/13) (1)

((Common foreign and security policy - Restrictive measures against Syria - Freezing of funds - Obligation to state reasons - Rights of defence - Right to effective judicial protection - Manifest error of assessment - Right to property - Right to respect for private life - Proportionality))

(2016/C 090/18)

Language of the case: French

Parties

Applicant: Mohammad Makhlouf (Damas, Syria) (represented by: C. Rygaert and G. Karouni, lawyers)

Defendant: Council of the European Union (represented by: M.-M. Joséphidès and G. Étienne, acting as Agents)

Re:

Application for partial annulment of Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (OJ 2013 L 147, p. 14) in so far as that act concerns the applicant.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Mr Mohammad Makhlouf to bear his own costs and to pay the costs incurred by the Council of the European Union. |
| --- | --- |

2.

Orders Mr Mohammad Makhlouf to bear his own costs and to pay the costs incurred by the Council of the European Union.

---

(1)  OJ C 325, 9.11.2013.

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/14 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/14

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Judgment of the General Court of 28 January 2016 — Gugler France v OHIM — Gugler (GUGLER)

(Case T-674/13) (1)

((Community trade mark - Invalidity proceedings - Community figurative mark GUGLER - Absolute ground for refusal - Article 52(1)(b) of Regulation (EC) No 207/2009 - Relative ground for refusal - Article 8(4) and Article 53(1)(c) of Regulation No 207/2009 - Obligation to state reasons - Article 75 of Regulation No 207/2009 - Ground raised by the Court of its own motion))

(2016/C 090/19)

Language of the case: English

Parties

Applicant: Gugler France (Besançon, France) (represented by: A. Grolée, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM: Alexander Gugler (Maxdorf, Germany)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 16 October 2013 (Case R 356/2012-4), relating to invalidity proceedings between Gugler France and Mr Alexander Gugler.

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 October 2013 (Case R 356/2012-4); |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 October 2013 (Case R 356/2012-4);

| 2. | Dismisses the action as to the remainder; |
| --- | --- |

2.

Dismisses the action as to the remainder;

| 3. | Orders OHIM to bear its own costs and to pay those incurred by Gugler France in the course of the proceedings before the Court. |
| --- | --- |

3.

Orders OHIM to bear its own costs and to pay those incurred by Gugler France in the course of the proceedings before the Court.

---

(1)  OJ C 61, 1.3.2014.

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/15 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/15

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Order of the General Court of 21 January 2016 — BR IP Holder v OHIM — Greyleg Investments (HOKEY POKEY)

(Case T-62/14) (1)

((Community trade mark - Opposition proceedings - Application for Community word mark HOKEY POKEY - Unregistered earlier national word mark - Proof of use - Right to prohibit use of the mark sought - Article 8(4) of Regulation (EC) No 207/2009 - Right of a Member State - Obligation to state reasons - Raised by the Court of its own motion))

(2016/C 090/20)

Language of the case: English

Parties

Applicant: BR IP Holder LLC (Canton, Massachusetts, United States) (represented by: F. Traub, lawyer and C. Rohsler, Solicitor)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: I. Harrington, Agent)

Other party to the proceedings before the Board of Appeal of OHIM: Greyleg Investments Ltd (Baltonsborough, United Kingdom)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 22 November 2013 (Case R 1091/2012-4) relating to opposition proceedings between BR IP Holder LLC and Greyleg Investments Ltd.

Operative part of the order

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 November 2013 (Case R 1091/2012-4). |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 November 2013 (Case R 1091/2012-4).

| 2. | Orders OHIM to bear its own costs and to pay those incurred by BR IP Holder LLC. |
| --- | --- |

2.

Orders OHIM to bear its own costs and to pay those incurred by BR IP Holder LLC.

---

(1)  OJ C 142, 12.5.2014.

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/15 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/15

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Judgment of the General Court of 27 January 2016 — DF v Commission

(Case T-782/14) (1)

((Appeal - Civil service - Officials - Remuneration - Secondment in the interest of the service - Expatriation allowance - Condition set out in Article 4(1)(b) of Annex VII to the Staff Regulations - Recovery of undue payments))

(2016/C 090/21)

Language of the case: English

Parties

Appellant: DF (Brussels, Belgium) (represented by: A. von Zwehl, lawyer)

Other party to the proceedings: European Commission (represented by: J. Currall and T. Bohr, Agents)

Re:

Appeal against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 1 October 2014, DF v Commission (F-91/13, ECR-SC, EU:F:2014:228), seeking to have that judgment set aside in part.

Operative part of the judgment

The Court:

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

1.

Dismisses the appeal;

| 2. | Orders DF to bear his own costs and to pay those incurred by the European Commission in the appeal. |
| --- | --- |

2.

Orders DF to bear his own costs and to pay those incurred by the European Commission in the appeal.

---

(1)  OJ C 89, 16.3.2015.

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/16 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/16

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Judgment of the General Court of 21 January 2016 — Laboratorios Ern v OHIM — michelle menard (Lenah. C)

(Case T-802/14) (1)

((Community trade mark - Opposition proceedings - Application for Community word mark Lenah.C - Earlier national word mark LEMA - Relative grounds for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))

(2016/C 090/22)

Language of the case: English

Parties

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

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Bonne, Agent)

Other party to the proceedings before the Board of Appeal of OHIM: michelle menard GmbH — Berlin cosmetics (Berlin, Germany)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 24 September 2014 (Case R 2260/2013-4) concerning opposition proceedings between Laboratorios Ern, S A and michelle menard GmbH — Berlin cosmetics.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Laboratorios Ern, S A to pay the costs. |
| --- | --- |

2.

Orders Laboratorios Ern, S A to pay the costs.

---

(1)  OJ C 46, 9.2.2015.

---

| 7.3.2016 | EN | Official Journal of the European Union | C 90/16 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/16

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Judgment of the General Court of 21 January 2016 — Rod Leichtmetallräder v OHIM — Rodi TR (ROD)

(Case T-75/15) (1)

((Community trade mark - Invalidity proceedings - Community figurative mark ROD - Earlier national figurative marks RODI - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 - Earlier opposition proceedings - Rule 39(3) of Regulation (EC) No 2868/95))

(2016/C 090/23)

Language of the case: English

Parties

Applicant: Rod Leichtmetallräder GmbH (Weiden in der Oberpfalz, Germany) (represented by: J. Hellenbrand and J. Biener, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: M. Rajh, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM: Rodi TR, SL, (Lleida, Spain)

Re:

Action brought against the decision of the Fifth Board of Appeal of OHIM of 17 December 2014 (Case R 281/2014-5) relating to invalidity proceedings between Rodi TR, SL and Rod Leichtmetallräder GmbH.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders Rod Leichtmetallräder GmbH to pay the costs. |
| --- | --- |

2.

Orders Rod Leichtmetallräder GmbH to pay the costs.

---

(1)  OJ C 118, 13.4.2015.

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/17 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/17

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Order of the President of the General Court of 18 January 2016 — Biofa v Commission

(Case T-746/15 R)

((Interim measures - Plant protection product - Approval of the basic substance sodium hydrogen carbonate - Application for suspension of operation - Lack of urgency))

(2016/C 090/24)

Language of the case: German

Parties

Applicant: Biofa AG (Münsingen, Germany) (represented by: C. Stallberg and S. Knoblich, lawyers)

Defendant: European Commission (represented by: G. von Rintelen, F. Moro and P. Ondrüsek, acting as Agents)

Re:

Commission Implementing Regulation (EU) 2015/2069 of 17 November 2015 approving the basic substance sodium hydrogen carbonate in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011 (OJ 2015 L 301, p. 42).

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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| 7.3.2016 | EN | Official Journal of the European Union | C 90/17 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/17

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Action brought on 23 October 2015 — Jenkinson v Council and Others

(Case T-602/15)

(2016/C 090/25)

Language of the case: French

Parties

Applicant: Liam Jenkinson (Keery, Ireland) (represented by: N. de Montigny and J.-N. Louis, lawyers)

Defendants: Council of the European Union, European Commission, European External Action Service (EEAS) and European Union Joint Action ‘Eulex Kosovo’

Form of order sought

Principally:

| – 1. | With regard to the rights derived from the private law contract:






  — | recategorise his contractual relationship as an employment contract of an indeterminate duration; |
| --- | --- | --- |

– 1.

With regard to the rights derived from the private law contract:

—

recategorise his contractual relationship as an employment contract of an indeterminate duration;

| — | hold that there has been an infringement by the defendants of their contractual obligations and, in particular, of giving notice of termination of a contract of an indeterminate duration;
  In consequence, in compensation for the loss suffered by the abusive use of consecutive fixed-term contracts causing the applicant prolonged uncertainty and the infringement of the obligation to give notice of termination of the contract:






  — | order the defendants to pay the applicant compensation in lieu of notice of EUR 176 601,55 calculated on the basis of his seniority in post in missions created by the European Union; |
| --- | --- | --- |

—

hold that there has been an infringement by the defendants of their contractual obligations and, in particular, of giving notice of termination of a contract of an indeterminate duration;

In consequence, in compensation for the loss suffered by the abusive use of consecutive fixed-term contracts causing the applicant prolonged uncertainty and the infringement of the obligation to give notice of termination of the contract:

—

order the defendants to pay the applicant compensation in lieu of notice of EUR 176 601,55 calculated on the basis of his seniority in post in missions created by the European Union;

| — | in the alternative, order the defendants to pay the applicant compensation in lieu of notice of EUR 45 985,15 calculated taking account of the length of his service for the fourth defendant; |
| --- | --- |

—

in the alternative, order the defendants to pay the applicant compensation in lieu of notice of EUR 45 985,15 calculated taking account of the length of his service for the fourth defendant;

| — | hold that the dismissal of the applicant is abusive and, in consequence, order the defendants to pay him compensation assessed ex aequo et bono at EUR 50 000; |
| --- | --- |

—

hold that the dismissal of the applicant is abusive and, in consequence, order the defendants to pay him compensation assessed ex aequo et bono at EUR 50 000;

| — | hold that the defendants did not have the legal end of employment documents prepared and






  — | order them to pay the applicant the sum of EUR 10 000 per day of non-payment with effect from the bringing of the present action; |
| --- | --- | --- |

—

hold that the defendants did not have the legal end of employment documents prepared and

—

order them to pay the applicant the sum of EUR 10 000 per day of non-payment with effect from the bringing of the present action;

| — | order them to send the applicant the end of employment documents; |
| --- | --- |

—

order them to send the applicant the end of employment documents;

| — | order the defendants to pay interest on the abovementioned sums, calculated at the Belgian legal rate. |
| --- | --- |

—

order the defendants to pay interest on the abovementioned sums, calculated at the Belgian legal rate.

| – 2. | With regard to the abuse of power and actual discrimination:






  — | declare that the first three defendants treated the applicant in a discriminatory manner, without objective justification, during his employment on the missions which they instituted, as regards his remuneration, pension rights and related benefits and as regards a guarantee of future employment; |
| --- | --- | --- |

– 2.

With regard to the abuse of power and actual discrimination:

—

declare that the first three defendants treated the applicant in a discriminatory manner, without objective justification, during his employment on the missions which they instituted, as regards his remuneration, pension rights and related benefits and as regards a guarantee of future employment;

| — | hold that the applicant ought to have been recruited as a member of the temporary staff of one of the first three defendants; |
| --- | --- |

—

hold that the applicant ought to have been recruited as a member of the temporary staff of one of the first three defendants;

| — | order the first three defendants to compensate him for the loss of remuneration, pension, allowances and benefits caused by the abovementioned breaches of EU law;
  order them to pay him interest on those sums, calculated at the Belgian legal rate; |
| --- | --- |

—

order the first three defendants to compensate him for the loss of remuneration, pension, allowances and benefits caused by the abovementioned breaches of EU law;

order them to pay him interest on those sums, calculated at the Belgian legal rate;

| — | prescribe a period within which the parties are to determine that compensation, having regard to the grade and step in which the applicant ought to have been employed, the average progression of the remuneration, the progress of his career, the allowances which he thus ought to have received under that temporary contract; and compare the results obtained with the remuneration actually received by the applicant. |
| --- | --- |

—

prescribe a period within which the parties are to determine that compensation, having regard to the grade and step in which the applicant ought to have been employed, the average progression of the remuneration, the progress of his career, the allowances which he thus ought to have received under that temporary contract; and compare the results obtained with the remuneration actually received by the applicant.

In the alternative:

| — | find that the defendants failed to fulfil their obligations; |
| --- | --- |

—

find that the defendants failed to fulfil their obligations;

| — | order them to compensate the applicant for the harm resulting from that failure, which is estimated ex aequo et bono at EUR 150 000. |
| --- | --- |

—

order them to compensate the applicant for the harm resulting from that failure, which is estimated ex aequo et bono at EUR 150 000.

In any event:

Order the defendants to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging an abuse of rights committed by the defendants in the successive use of fixed-term contracts and infringement by those defendants of the principle of proportionality. |
| --- | --- |

1.

First plea in law, alleging an abuse of rights committed by the defendants in the successive use of fixed-term contracts and infringement by those defendants of the principle of proportionality.

| 2. | Second plea in law, alleging infringement by the defendants of the protection of workers in the context of a mass redundancy. |
| --- | --- |

2.

Second plea in law, alleging infringement by the defendants of the protection of workers in the context of a mass redundancy.

| 3. | Third plea in law, alleging infringement by the defendants of the principles of equal treatment and non-discrimination. |
| --- | --- |

3.

Third plea in law, alleging infringement by the defendants of the principles of equal treatment and non-discrimination.

| 4. | Fourth plea in law, alleging infringement by the defendants of the applicant’s right to be heard. |
| --- | --- |

4.

Fourth plea in law, alleging infringement by the defendants of the applicant’s right to be heard.

| 5. | Fifth plea in law, alleging legal uncertainty caused to the applicant by the defendants and infringement by those defendants of the right to sound administration. |
| --- | --- |

5.

Fifth plea in law, alleging legal uncertainty caused to the applicant by the defendants and infringement by those defendants of the right to sound administration.

| 6. | Sixth plea in law, alleging infringement by the defendants of the principle that staff representatives should be consulted. |
| --- | --- |

6.

Sixth plea in law, alleging infringement by the defendants of the principle that staff representatives should be consulted.

| 7. | Seventh plea in law, alleging infringement by the defendants of the European Code of Good Administrative Behaviour. |
| --- | --- |

7.

Seventh plea in law, alleging infringement by the defendants of the European Code of Good Administrative Behaviour.

| 8. | Eighth plea in law, alleging infringement by the defendants of the right to freedom of movement for workers. |
| --- | --- |

8.

Eighth plea in law, alleging infringement by the defendants of the right to freedom of movement for workers.

---

| 7.3.2016 | EN | Official Journal of the European Union | C 90/19 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/19

---

Action brought on 23 November 2015 — Novartis v OHIM (Representation of a crescent in black and white)

(Case T-678/15)

(2016/C 090/26)

Language of the case: English

Parties

Applicant: Novartis AG (Basel, Switzerland) (represented by: M. Zintler, lawyer)

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

Details of the proceedings before OHIM

Trade mark at issue: Community figurative mark (Representation of a crescent in black and white) — Application for registration No 13 191 036

Contested decision: Decision of the Fifth Board of Appeal of OHIM of 23 September 2015 in Case R 89/2015-5

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

| — | declare that Article 7(1)(b) of Regulation No 207/2009 does not preclude the sign at issue (Community trade mark No 13 191 036) in respect of the goods in Class 5 described in the application for registration; |
| --- | --- |

—

declare that Article 7(1)(b) of Regulation No 207/2009 does not preclude the sign at issue (Community trade mark No 13 191 036) in respect of the goods in Class 5 described in the application for registration;

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

—

order the defendant to pay the costs.

Plea in law

| — | wrong application of Article 7(1)(b) Regulation No 207/2009. |
| --- | --- |

—

wrong application of Article 7(1)(b) Regulation No 207/2009.

---

| 7.3.2016 | EN | Official Journal of the European Union | C 90/20 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/20

---

Action brought on 23 November 2015 — Novartis v OHIM (Representation of a crescent in green and white)

(Case T-679/15)

(2016/C 090/27)

Language of the case: English

Parties

Applicant: Novartis AG (Basel, Switzerland) (represented by: M. Zintler, lawyer)

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

Details of the proceedings before OHIM

Trade mark at issue: Community figurative mark (Representation of a crescent in green and white) — Application for registration No 13 189 139

Contested decision: Decision of the Fifth Board of Appeal of OHIM of 23 September 2015 in Case R 78/2015-5

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

| — | declare that Article 7(1)(b) of Regulation No 207/2009 does not preclude the sign at issue (Community trade mark No 13 189 139) in respect of the goods in Class 5 described in the application for registration; |
| --- | --- |

—

declare that Article 7(1)(b) of Regulation No 207/2009 does not preclude the sign at issue (Community trade mark No 13 189 139) in respect of the goods in Class 5 described in the application for registration;

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

—

order the defendant to pay the costs.

Plea(s) in law

| — | Infringement of Article 7(1)(b) of Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 7(1)(b) of Regulation No 207/2009.

---

| 7.3.2016 | EN | Official Journal of the European Union | C 90/20 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/20

---

Action brought on 17 December 2015 — Aldi v OHIM — Sky (SKYLITE)

(Case T-736/15)

(2016/C 090/28)

Language in which the application was lodged: German

Parties

Applicant: Aldi GmbH & Co. KG (Mülheim an der Ruhr, Germany) (represented by: N. Lützenrath, U. Rademacher, C. Fürsen and N. Bertram, lawyers)

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

Other party to the proceedings before the Board of Appeal: Sky plc (Isleworth, United Kingdom)

Details of the proceedings before OHIM

Applicant for the trade mark at issue: Aldi GmbH & Co. KG

Trade mark at issue: Community figurative mark containing the word element ‘SKYLITE’ — Application for registration No 11 595 311

Procedure before OHIM: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of OHIM of 20 October 2015 in Case R 2771/2014-4

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

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

—

order the defendant to pay the costs.

Pleas in law

| — | Infringement of Article 15 of Regulation No 207/2009; |
| --- | --- |

—

Infringement of Article 15 of Regulation No 207/2009;

| — | Infringement of Article 42(2) and (3) of Regulation No 207/2009; |
| --- | --- |

—

Infringement of Article 42(2) and (3) of Regulation No 207/2009;

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

—

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

---

| 7.3.2016 | EN | Official Journal of the European Union | C 90/21 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/21

---

Action brought on 28 December 2015 — It Works v OHIM — KESA Holdings Luxembourg (IT it WORKS)

(Case T-778/15)

(2016/C 090/29)

Language in which the application was lodged: English

Parties

Applicant: It Works S.A. (Krakow, Poland) (represented by: J. Aftyka, lawyer)

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

Other party to the proceedings before the Board of Appeal: KESA Holdings Luxembourg Sàrl (Luxembourg, Luxembourg)

Details of the proceedings before OHIM

Applicant of the trade mark at issue: Applicant

Trade mark at issue: Community figurative mark containing the word elements ‘IT it WORKS’ — Application for registration No 10 359 222

Procedure before OHIM: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of OHIM of 26 October 2015 in Case R 2106/2014-4

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision with respect to the services for which the opposition has been upheld; |
| --- | --- |

—

annul the contested decision with respect to the services for which the opposition has been upheld;

| — | annul the decision of the Opposition Division dated 17/06/2014 in opposition proceedings No B 001988727 with respect to the services for which the opposition has been upheld; |
| --- | --- |

—

annul the decision of the Opposition Division dated 17/06/2014 in opposition proceedings No B 001988727 with respect to the services for which the opposition has been upheld;

| — | refer the case back to OHIM so it can amend the decision on the substance of the case and register Community Trade Mark No 010359222 in respect of all the services covered, without prejudice to those which are uncontested; |
| --- | --- |

—

refer the case back to OHIM so it can amend the decision on the substance of the case and register Community Trade Mark No 010359222 in respect of all the services covered, without prejudice to those which are uncontested;

| — | charge the OHIM with the costs of the proceedings before the Opposition Division, Board of Appeal and General Court. |
| --- | --- |

—

charge the OHIM with the costs of the proceedings before the Opposition Division, Board of Appeal and General Court.

Plea in law

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

—

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

---

| 7.3.2016 | EN | Official Journal of the European Union | C 90/22 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/22

---

Action brought on 8 January 2016 — La tarte tropézienne v OHIM (LA TARTE TROPÉZIENNE 1955. SAINT-TROPEZ)

(Case T-7/16)

(2016/C 090/30)

Language of the case: French

Parties

Applicant: La tarte tropézienne (Cogolin, France) (represented by: T. Cuche, lawyer)

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

Details of the proceedings before OHIM

Trade mark at issue: International registration designating the European Union in respect of the Community figurative mark containing the word elements ‘LA TARTE TROPÉZIENNE 1955. SAINT-TROPEZ’ — Application for registration No 1 212 405

Contested decision: Decision of the Fourth Board of Appeal of OHIM of 26 October 2015 in Case R 720/2015-4

Form of order sought

The applicant claims that the Court should:

| — | Hold and rule that the present action is admissible; |
| --- | --- |

—

Hold and rule that the present action is admissible;

| — | Find that international registration No 1.212.405 is validly protected in the European Union in respect of the following goods: ‘flour and preparations made from cereals; sugar; honey; treacle; yeast; baking powder; spices; dough for cakes; cakes; frozen cakes; pancakes’; |
| --- | --- |

—

Find that international registration No 1.212.405 is validly protected in the European Union in respect of the following goods: ‘flour and preparations made from cereals; sugar; honey; treacle; yeast; baking powder; spices; dough for cakes; cakes; frozen cakes; pancakes’;

| — | In consequence, annul in part the decision of the Fourth Board of Appeal of OHIM of 26 October 2016 in so far as it refused protection in the European Union of international registration No 1.212.405 in respect of the following goods: ‘flour and preparations made from cereals; sugar; honey; treacle; yeast; baking powder; spices; dough for cakes; cakes; frozen cakes; pancakes’; |
| --- | --- |

—

In consequence, annul in part the decision of the Fourth Board of Appeal of OHIM of 26 October 2016 in so far as it refused protection in the European Union of international registration No 1.212.405 in respect of the following goods: ‘flour and preparations made from cereals; sugar; honey; treacle; yeast; baking powder; spices; dough for cakes; cakes; frozen cakes; pancakes’;

| — | Order OHIM to pay the costs. |
| --- | --- |

—

Order OHIM to pay the costs.

Plea in law

| — | Infringement of Article 7(1)(b) and (c) and (2) of Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 7(1)(b) and (c) and (2) of Regulation No 207/2009.

---

| 7.3.2016 | EN | Official Journal of the European Union | C 90/23 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/23

---

Action brought on 15 January 2016 — Gauff v OHIM — H.P. Gauff Ingenieure (GAUFF)

(Case T-13/16)

(2016/C 090/31)

Language in which the application was lodged: German

Parties

Applicant: Gauff GmbH & Co. Engineering KG (Nuremberg, Germany) (represented by: A. Molnar)

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

Other party to the proceedings before the Board of Appeal: H.P. Gauff Ingenieure GmbH & Co. KG — JBG (Frankfurt am Main, Germany)

Details of the proceedings before OHIM

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: Community figurative mark containing the word element ‘Gauff’ — Community mark No 6 327 977

Procedure before OHIM: Invalidity proceedings

Contested decision: Decision of the First Board of Appeal of OHIM of 12 November 2015 in Case R 549/2015-1

Form of order

The applicant claims that the Court should:

| — | annul the contested decision; or
  in the alternative, send the case back to OHIM for further examination of the disputed matters that were, in error, not examined; |
| --- | --- |

—

annul the contested decision; or

in the alternative, send the case back to OHIM for further examination of the disputed matters that were, in error, not examined;

| — | order OHIM to pay the costs of the proceedings including those incurred in the proceedings before the Board of Appeal. |
| --- | --- |

—

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

Plea in law

| — | Infringement of Articles 53, 56, 57, 76 of Regulation No 207/2009 and infringement of Regulation No 2868/95 as well as infringement of the right to be heard and failure to state reasons. |
| --- | --- |

—

Infringement of Articles 53, 56, 57, 76 of Regulation No 207/2009 and infringement of Regulation No 2868/95 as well as infringement of the right to be heard and failure to state reasons.

---

| 7.3.2016 | EN | Official Journal of the European Union | C 90/23 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/23

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Action brought on 8 January 2016 — Apimab Laboratoires and Others v Commission

(Case T-14/16)

(2016/C 090/32)

Language of the case: French

Parties

Applicants: Apimab Laboratoires (Clermont-l'Hérault, France), Sarl BBI — Blanche Bresson Institut (Barbentane, France), Institut de recherche biologique — IRB (Montaigu, France), Laboratoires Arkopharma (Carros, France), Laboratoires Juva Santé (Paris, France), Ortis (Bütgenbach, Belgium), Pierre Fabre Médicament (Boulogne-Billancourt, France), Pollenergie (Saint-Hilaire-de-Lusignan, France) (represented by: A. de Brosses, lawyer)

Defendant: European Commission

Form of order sought

| — | Hold and rule and Regulation No 2015/1933 of 27 October 2015 was adopted without prior consultation of the European Food Safety Authority and, accordingly, in breach of the procedure applicable to its adoption; |
| --- | --- |

—

Hold and rule and Regulation No 2015/1933 of 27 October 2015 was adopted without prior consultation of the European Food Safety Authority and, accordingly, in breach of the procedure applicable to its adoption;

| — | Hold and rule and the Commission erred in law in adopting Regulation No 2015/1933 without a scientific assessment of the risk, in breach of Article 6 of Regulation No 178/2002; |
| --- | --- |

—

Hold and rule and the Commission erred in law in adopting Regulation No 2015/1933 without a scientific assessment of the risk, in breach of Article 6 of Regulation No 178/2002;

| — | Hold and rule that the Commission has made a manifest error of assessment by restricting, in Regulation No 2015/1933 of 27 October 2015, the levels of benzo(a)pyrene in certain food supplements to 10 micrograms if used alone or to 50 micrograms if mixed with other substances; |
| --- | --- |

—

Hold and rule that the Commission has made a manifest error of assessment by restricting, in Regulation No 2015/1933 of 27 October 2015, the levels of benzo(a)pyrene in certain food supplements to 10 micrograms if used alone or to 50 micrograms if mixed with other substances;

| — | Hold and rule that the Commission has infringed the principle of proportionality by restricting, in Regulation No 2015/1933 of 27 October 2015, the levels of benzo(a)pyrene in certain food supplements to 10 micrograms if used alone or to 50 micrograms if mixed with other substances; |
| --- | --- |

—

Hold and rule that the Commission has infringed the principle of proportionality by restricting, in Regulation No 2015/1933 of 27 October 2015, the levels of benzo(a)pyrene in certain food supplements to 10 micrograms if used alone or to 50 micrograms if mixed with other substances;

| — | Hold and rule that the Commission has infringed the principle of non-discrimination by restricting, in Regulation No 2015/1933 of 27 October 2015, the levels of benzo(a)pyrene in certain food supplements to 10 micrograms if used alone or to 50 micrograms if mixed with other substances. |
| --- | --- |

—

Hold and rule that the Commission has infringed the principle of non-discrimination by restricting, in Regulation No 2015/1933 of 27 October 2015, the levels of benzo(a)pyrene in certain food supplements to 10 micrograms if used alone or to 50 micrograms if mixed with other substances.

In consequence:

| — | Annul Regulation No 2015/1933 of 27 October 2015 as regards its provisions on food supplements; |
| --- | --- |

—

Annul Regulation No 2015/1933 of 27 October 2015 as regards its provisions on food supplements;

| — | Order the Commission to pay all the costs. |
| --- | --- |

—

Order the Commission to pay all the costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging an infringement by the Commission of the procedural rules following from Council Regulation (EEC) No 315/93 of 8 February 1993 laying down Community procedures for contaminants in food (‘the Framework Regulation’) in the adoption of Commission Regulation (EU) No 2015/1933 of 27 October 2015 amending Regulation (EC) No 1881/2006 as regards maximum levels for polycyclic aromatic hydrocarbons in cocoa fibre, banana chips, food supplements, dried herbs and dried spices (‘the contested regulation’). |
| --- | --- |

1.

First plea in law, alleging an infringement by the Commission of the procedural rules following from Council Regulation (EEC) No 315/93 of 8 February 1993 laying down Community procedures for contaminants in food (‘the Framework Regulation’) in the adoption of Commission Regulation (EU) No 2015/1933 of 27 October 2015 amending Regulation (EC) No 1881/2006 as regards maximum levels for polycyclic aromatic hydrocarbons in cocoa fibre, banana chips, food supplements, dried herbs and dried spices (‘the contested regulation’).

| 2. | Second plea in law, alleging an error of law committed by the Commission at the time of the adoption of the contested regulation and an infringement of Article 2 of the Framework Regulation justifying the annulment of the contested regulation as without legal basis. |
| --- | --- |

2.

Second plea in law, alleging an error of law committed by the Commission at the time of the adoption of the contested regulation and an infringement of Article 2 of the Framework Regulation justifying the annulment of the contested regulation as without legal basis.

| 3. | Third plea in law, alleging an error of law committed by the Commission, in that it failed to consult the European Food Safety Authority and did not carry out any prior scientific assessment, in disregard of the requirements of Article 6 of Regulation No 178/2002. |
| --- | --- |

3.

Third plea in law, alleging an error of law committed by the Commission, in that it failed to consult the European Food Safety Authority and did not carry out any prior scientific assessment, in disregard of the requirements of Article 6 of Regulation No 178/2002.

| 4. | Fourth plea in law, alleging a manifest error of assessment, in that the contested regulation impliedly rests on the finding that consumers would ingest similar quantities of polycyclic aromatic hydrocarbons (PAHs) via food supplements as they would via common foods, which is not the case. |
| --- | --- |

4.

Fourth plea in law, alleging a manifest error of assessment, in that the contested regulation impliedly rests on the finding that consumers would ingest similar quantities of polycyclic aromatic hydrocarbons (PAHs) via food supplements as they would via common foods, which is not the case.

| 5. | Fifth plea in law, alleging an infringement by the Commission of the principle of proportionality, in that the setting of the maximum levels of PAHs goes beyond what is necessary to protect public health. |
| --- | --- |

5.

Fifth plea in law, alleging an infringement by the Commission of the principle of proportionality, in that the setting of the maximum levels of PAHs goes beyond what is necessary to protect public health.

| 6. | Sixth plea in law, alleging an infringement by the Commission of the principle of non-discrimination, in that the contested regulation has not taken account of the differences between food supplements and other foodstuffs, by setting the maximum levels of PAHs in line with the type of foodstuff concerned. |
| --- | --- |

6.

Sixth plea in law, alleging an infringement by the Commission of the principle of non-discrimination, in that the contested regulation has not taken account of the differences between food supplements and other foodstuffs, by setting the maximum levels of PAHs in line with the type of foodstuff concerned.

---

| 7.3.2016 | EN | Official Journal of the European Union | C 90/25 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/25

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Action brought on 14 January 2016 — Pandalis v OHIM– LR Health & Beauty Systems (Cystus)

(Case T-15/16)

(2016/C 090/33)

Language in which the application was lodged: German

Parties

Applicant: Georgios Pandalis (Glandorf, Germany) (represented by: A. Franke, lawyer)

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

Other party to the proceedings before the Board of Appeal: LR Health & Beauty Systems GmbH (Ahlen, Germany)

Details of the proceedings before OHIM

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: Community word mark ‘Cystus’ — Community mark No 1 273 119

Procedure before OHIM: Invalidity proceedings

Contested decision: Decision of the First Board of Appeal of OHIM of 30 October 2015 in Case R 2839/2014-1

Form of order sought

The applicant claims that the Court should:

| — | annul the contested decision relating to Invalidity proceedings No 8374 C and Community mark No 1 273 119 ‘Cystus’; |
| --- | --- |

—

annul the contested decision relating to Invalidity proceedings No 8374 C and Community mark No 1 273 119 ‘Cystus’;

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

—

order OHIM to pay the costs of the proceedings.

Pleas in law

| — | Infringement of Article 64(1) of Regulation No 207/2009 in conjunction with Article 51(1)(a) and (2) thereof; |
| --- | --- |

—

Infringement of Article 64(1) of Regulation No 207/2009 in conjunction with Article 51(1)(a) and (2) thereof;

| — | Misuse of powers; |
| --- | --- |

—

Misuse of powers;

| — | Infringement of Article 51(1)(a) and (2) of Regulation No 207/2009. |
| --- | --- |

—

Infringement of Article 51(1)(a) and (2) of Regulation No 207/2009.

---

| 7.3.2016 | EN | Official Journal of the European Union | C 90/25 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/25

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Action brought on 19 January 2016 — Mast-Jägermeister v OHIM (Beaker)

(Case T-16/16)

(2016/C 090/34)

Language of the case: German

Parties

Applicant: Mast-Jägermeister SE (Wolfenbüttel, Germany) (represented by: H. Schrammek, C. Drzymalla, S. Risthaus, and J. Engberding, lawyers)

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

Details of the proceedings before OHIM

Design at issue: Community design ‘Beaker’ — Application for registration No 2683615-0001 and 2683615-0002

Contested decision: Decision of the Third Board of Appeal of OHIM of 17 November 2015 in Case R 1842/2015-3

Form of order sought

The applicant claims that the Court should:

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

—

annul the contested decision;

| — | recognise 17 April 2015 as the day of filing for Community design No 002683615-0001 and 002683615-0002; |
| --- | --- |

—

recognise 17 April 2015 as the day of filing for Community design No 002683615-0001 and 002683615-0002;

| — | order OHIM to pay the costs, including those incurred in the proceedings before the Board of Appeal. |
| --- | --- |

—

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

Pleas in law

| — | Infringement of Article 45(1), Article 46(2) and (3) of Regulation No 6/2002 read in conjunction with Article 36(1)(c) and Article 38(1) of Regulation No 6/2002; |
| --- | --- |

—

Infringement of Article 45(1), Article 46(2) and (3) of Regulation No 6/2002 read in conjunction with Article 36(1)(c) and Article 38(1) of Regulation No 6/2002;

| — | Infringement of the second sentence of Article 62 of Regulation No 6/2002. |
| --- | --- |

—

Infringement of the second sentence of Article 62 of Regulation No 6/2002.

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/26 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/26

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Action brought on 18 January 2016 — DMC v OHIM — Etike’ International (De Giusti Orgoglio)

(Case T-18/16)

(2016/C 090/35)

Language in which the application was lodged: Italian

Parties

Applicant: DMC Srl (San Vendemiano, Italy) (represented by: B. Osti, lawyer)

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

Other party to the proceedings before the Board of Appeal: Etike’ International Srl (Baronissi, Italy)

Details of the proceedings before OHIM

Proprietor of the trade mark at issue: Applicant

Trade mark at issue: Community figurative mark containing the word elements ‘De Giusti Orgoglio’ — Application for registration No 9 499 468

Procedure before OHIM: Opposition procedure

Contested decision: Decision of the Fifth Board of Appeal of OHIM of 5 November 2015 in Case R 1764/2013-5

Form of order sought

The applicant claims that the Court should:

| — | alter the contested decision on the ground that it is unfounded in fact and law; |
| --- | --- |

—

alter the contested decision on the ground that it is unfounded in fact and law;

| — | order OHIM to pay the costs; |
| --- | --- |

—

order OHIM to pay the costs;

| — | order the production of the files relating to the opposition proceedings No B 001757973 and Case R 1764/2013-5. |
| --- | --- |

—

order the production of the files relating to the opposition proceedings No B 001757973 and Case R 1764/2013-5.

Pleas in law

| — | Infringement of Article 8(1)(a) of Regulation No 207/2009; |
| --- | --- |

—

Infringement of Article 8(1)(a) of Regulation No 207/2009;

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

—

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

---

European Union Civil Service Tribunal

| 7.3.2016 | EN | Official Journal of the European Union | C 90/27 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/27

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Order of the President of the Civil Service Tribunal of 20 January 2016 — Brouillard v Commission

(Case F-148/15 R)

((Civil Service - Non-admission to the tests in a competition - Interim proceedings - Application for interim measures - Lack of urgency))

(2016/C 090/36)

Language of the case: French

Parties

Applicant: Alain Laurent Brouillard (Forest, Belgium) (represented by: P. Vande Casteele, lawyer)

Defendant: European Commission (represented by: G. Gattinara and F. Simonetti, acting as Agents)

Re:

Application for annulment of the decision of the selection board in Competition EPSO/AD/306/15 — French-language lawyer-linguists (AD 7) not to admit the applicant to the next stage of the competition on the ground that he did not have a level of education corresponding to a completed course of legal training from a Belgian, French or Luxemburgish institution of higher education.

Operative part of the order

| 1. | Mr Brouillard’s application for interim measures is rejected. |
| --- | --- |

1.

Mr Brouillard’s application for interim measures is rejected.

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

2.

The costs are reserved.

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| 7.3.2016 | EN | Official Journal of the European Union | C 90/27 |
| --- | --- | --- | --- |

7.3.2016

EN

Official Journal of the European Union

C 90/27

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Order of the Civil Service Tribunal of 27 January 2016 — Glantenay and Others v Commission

(Case F-85/15) (1)

(2016/C 090/37)

Language of the case: French

The President of the Second Chamber has ordered that the case be removed from the register.

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(1)  OJ C 262, 10/8/2015, p. 42.

---